The consumer’s issue:
“In September 2020, I ordered a new high-performance SUV, which should have come equipped with a parking assist system as standard. For me, this was a significant selling point, as the car I was buying was larger than I was used to, and it would therefore assist with parking.
I was given a build date on the car for early to mid-November 2020, with a delivery date of December 2020. I handed over the car for part exchange in mid-December 2020, and received a loan vehicle until I took delivery of the new SUV on 16th January. However, having had the vehicle for one week, I realised that the parking assist system was not working, so I returned to the dealership for them to investigate the problem.
I was subsequently informed by the business that the parking assist system was discontinued on the model I purchased in December 2020. This caused some confusion, as the car was built in November, having been ordered in September 2020. The dealer then looked into whether the part could be retrofitted, but we were advised that this would not be possible.
In light of what had happened, the dealer salesman and his manager called me to ask what kind of compensation package I would be looking for, or whether I was considering returning the vehicle. However, I wanted to keep it, as I had already part-exchanged my car, and I didn’t want to be left without a vehicle. I had proposed a £5,000 goodwill gesture, but the business responded with an offer of a three-year service agreement and the refund of one finance payment. I did not feel that this was an acceptable award after having been sold a vehicle that was not as described, contrary to the Consumer Rights Act 2015 and the sales contract. Therefore, I brought my dispute to The Motor Ombudsman.”
The accredited business’ response:
- We accept that the vehicle was ordered to include a parking assist system but, having taken independent legal advice on the matter, we acknowledge that this function had been removed from our range owing to a revision of a European Union (EU) Regulation No 79, which relates to automotive standards and safety. As such, the function in this vehicle has been removed under international law and cannot be reactivated.
- The change in the specification of this vehicle has arisen owing to a change in the law and it would be illegal for the manufacturer and ourselves to produce and sell cars which were in breach of this legislation.
- We do not accept that we have legal liability for this issue because, by complying with our obligations under the Consumer Rights Act, we would be acting in breach of international law.
The adjudication outcome:
- The Motor Ombudsman adjudicator said that the burden of proof was on the consumer to show that the dealership had sold a vehicle to them which was not as described at the point of sale.
- The adjudicator considered the evidence and representations on both sides. They noted that the dealership did not dispute the fact that the vehicle was not as described when they had completed the purchase order and formed the agreement with the consumer.
- The adjudicator pointed out that the Consumer Rights Act provided legal obligations between the trading dealership and the consumer when a sales contract was formed. Although, it was noted that the manufacturer was bound by international law, this was a separate legal obligation between that which was formed between the consumer and the dealership.
- The adjudicator also referred to the legal principle of Parliamentary Sovereignty which operates through the UK legal system. The adjudicator referred to the principle which was explained within the case of R (SG & Ors) v Secretary of State for Work and Pensions.
- This judgment, amongst other things, provides that the provisions of UN Regulations are only considered against other statutory law by the Courts once that piece of international law has become incorporated into domestic law as an Act of Parliament.
- The adjudicator also pointed out that the UN Regulation referred to by the dealership did not come into force for the international community until January 2021. So, it was reasonable to conclude that there was no UK statutory law to place the international law into effect in the UK. This meant that the Consumer Rights Act and the obligations owed under that Act would supersede the international law and could not be used as a defence to not fulfil their obligations.
- On this basis, the adjudicator upheld the complaint in the consumer’s favour and found that the dealership had breached the Vehicle Sales Code i.e. the consumer’s vehicle was not as described at the point of sale.
- The adjudicator then considered the appropriate remedy and pointed out that, according to the vehicle order form, the parking assist function was listed as having a value of £0. This was due to the feature being a standard function on the vehicle as it was specified. This meant that it was difficult to establish a value to represent the consequential loss suffered by the consumer. The adjudicator invited both parties to produce evidence to represent what the demonstrable loss was which was suffered by the consumer.
- This evidence was not forthcoming from either party, but the adjudicator did not consider that it would be fair or reasonable in all the circumstances that the consumer went away with nothing. So, the adjudicator recommended that the business paid a goodwill amount to the consumer to reflect the breach of the Vehicle Sales Code identified.
Conclusion
- Both parties accepted the adjudicator’s outcome. Consequently, a goodwill payment of £150 was made to the consumer, and the case was closed.
