CMA Statement on Corona Virus, Consumer Contracts, Cancellation and Refunds

27th October 2020 by admin

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Introduction

This statement should not be regarded as a substitute for, or a definitive interpretation of, the law. Rather it sets out the CMA’s views as to how the law operates, to help consumers understand their rights and to help businesses treat their customers fairly. Ultimately only a court can decide how the law applies in each circumstance.


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The CMA cannot provide individual advice.

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Laws and guidance related to COVID-19

The UK government and the devolved administrations have introduced public health measures to restrict the spread of coronavirus. Certain laws were introduced at the start of the pandemic and created legal restrictions on certain activities. We refer to these as ‘lockdown laws’.

Further laws have been introduced subsequently e.g. the requirement to self-isolate when returning to the UK from certain countries, as well as lockdown laws that only apply to specific areas of the country or to specific activities (‘local lockdowns’).

Some legal restrictions have now been lifted, and the government has issued guidance about what people should do in place of or in addition to some lockdown laws.

Unlike lockdown laws, compliance with government guidance is not legally binding.

It is important for businesses and consumers to follow government guidance to help stop the spread of the coronavirus, and for businesses to treat consumers, including those following government guidance, fairly and responsibly.

Businesses that mislead consumers about the effects of lockdown laws or guidance, or put pressure on consumers not to comply with them, may infringe consumer protection law.

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Application of general legal principles

The law does not specifically set out the consequences of the coronavirus for contracts. Usual legal principles will therefore apply. In addition, consumer protection law ensures that consumers’ legal rights (for example those which might apply under the usual legal principles) are protected and that businesses treat consumers fairly in all their dealings with them.

The legal position was more straightforward under the original lockdown laws, imposed at the start of the pandemic, because the broad and strict nature of the legal restrictions they imposed meant many contracts could not go ahead as planned.

However, as lockdown laws and the nature of the legal restrictions they impose change over time, the consequences for individual contracts may become less clear-cut and more fact-specific. Ultimately only a court can decide how the law applies, and in many cases this will be the first time the issues have been considered in the context of a pandemic like this.

Consumers and businesses should be aware that whether or not a consumer is entitled to a refund will depend on the nature of the goods or services in question, the sector, the detail of the arrangements that have been entered into (including the terms and conditions of any contract) and the impact of the coronavirus pandemic and any restrictions on the arrangement.

Contracts that cannot go ahead due to lockdown laws

In some circumstances, due to lockdown laws, a contract cannot go ahead as agreed or at all, and is therefore ‘frustrated’. A contract will be frustrated as a matter of law if, due to no fault of the parties, something happens after the contract was entered into which means it can no longer be performed at all or performance would be radically different to what was agreed.

As a result, the contract comes to an end and, where consumers have paid money in advance for services or goods that they have yet to receive, they will generally be entitled to obtain a refund.

They will also not be required to make further payments.

In particular, for most consumer contracts, the CMA would expect a consumer to be offered a full refund where:

In most cases, consumers will contact a business to ask for their money back, but there is no requirement for consumers formally to communicate with a business before becoming entitled to a refund.

Examples of legal restrictions in lockdown laws include:

If laws in another country prevent a business from providing a service under a contract with a UK consumer or prevent that consumer from receiving the service, then in most cases consumers will also be entitled to a refund.

Businesses should not require consumers to take unreasonable or unnecessary steps in order to obtain refunds. A business imposing such barriers may breach consumer protection law by doing so.

Limited exceptions to full refunds

Sometimes, a consumer will already have received some of the services they have paid for in advance.

In those cases, the CMA considers that the consumer would normally be entitled to at least a refund for the services that are not provided.

However, where they have already received something of value, consumers should generally be expected to pay for it and they will not usually be entitled to get all their money back.

In some cases, where lockdown laws prevent a business from providing a service or the consumer from receiving it, the business may be able to deduct a contribution to the costs it has already incurred in relation to the specific contract in question (where it cannot recover them elsewhere).

In the CMA’s view, these cases are likely to be relatively rare and the costs that may be deducted from refunds will usually be limited. However, the ability to make a deduction, and its amount, will depend on the circumstances, including the sector and the nature of the service being provided. Ultimately only a court can decide how the law applies to specific contracts and circumstances.

Ongoing contracts

Where a consumer receives regular services in exchange for a regular payment as part of an ongoing contract, the CMA considers that:

Consumers should be treated fairly by businesses, and not misled about their rights. The CMA is unlikely to object to the parties seeking to reach an arrangement that is mutually acceptable in the circumstances, provided that consumers are not left in a worse position where they have sought to find a resolution in this way.

Non-refundable payments and fees

In the CMA’s view, for consumer contracts the above rights to a refund will usually apply even where the business says part of the payment is a non-refundable deposit or advance payment.

This is because the contract will have been frustrated and terms which allow a business to provide no service but keep a consumer’s money (including deposits or advance payments) are likely to be unfair, and therefore unenforceable under Part 2 of the Consumer Rights Act 2015.

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The CMA considers that businesses should not charge any form of administration fee (or equivalent) for processing refunds in the above circumstances.

Credits and re-booking

Consumers can normally be offered credits, vouchers, re-booking or re-scheduling as an alternative to a refund, but they should not be misled or pressured into doing so. A refund should still be an option that is just as clearly and easily available.

In particular, businesses should not give consumers the impression that they are not entitled to a cash refund where that is their legal right, and in the CMA’s view this would be likely to breach consumer protection law.

Any restrictions that apply to credits, vouchers, re-booking or re-scheduling must also be fair and made clear to consumers.

Timing of refunds

The CMA accepts that, in the initial stages of the pandemic, it may have taken businesses longer than normal to process refunds. However, the timeframes for providing refunds should be made clear to consumers and refunds should be given promptly and without undue delay.

The CMA notes that statutory deadlines for payment also apply in certain situations.

Payments for future services

Some contracts may require consumers to pay now for services that they will receive in the future.

A business should not seek payments for a service it knows it will be unable to provide.

This is likely to be the case where current lockdown laws would prevent the contract from being performed and those laws are still likely to be in place at the time that the contract is due to be performed.

Where lockdown laws make it reasonably likely that the contract will not be able to be performed at the time agreed, it is likely that the contract will be ’frustrated’ under the law at the point this becomes clear. As a result the contract will come to an end and consumers should be entitled to receive a refund.

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As lockdown laws might change in the future, consumers may be willing to reach a voluntary agreement with a business to wait and see whether a service might actually be able to go ahead.

However, they are not required to do so, and should not be misled or put under pressure to reach such an agreement.

It is also important that consumers should not be left worse off if they do so.

Where it is reasonably likely that the business will be able to provide the service as agreed, the CMA’s view is that, in general, the business can require consumers to carry on making contractual payments in advance of performance. This is likely to be the case where no relevant lockdown laws currently apply, or any relevant lockdown laws are likely to have been lifted by the relevant time (for example where the law sets out the date when the restrictions will end).

Consumers’ rights to refunds will depend on whether the services can be provided when the business is due to perform the contract, unless the contract has been ended before this.

Contracts that are partially affected by lockdown laws

As some legal restrictions under the lockdown laws are lifted or eased, it may be the case that a business is no longer completely prevented from providing any of the services it agreed to provide. The CMA’s view is that if the service that can be provided would be radically different to what was agreed, for example, because lockdown laws or other restrictions would prevent key parts of the contract from being performed, then in most cases consumers should be entitled to a refund.

If the service can be provided with only minor differences from what was agreed, then in most cases the contract can continue and a consumer would be entitled, at most, to an appropriate price reduction in relation to those parts of the service which were not provided (or were not provided as agreed).

Any cancellation rights which the consumer has under the applicable terms and conditions still apply.

The CMA is unlikely to object if consumers and businesses seek to find a solution that is mutually acceptable, and it is important that businesses treat these consumers fairly and responsibly.

Consumers should not be left in a worse position where they have sought to find a resolution in this way.

Changing terms in existing contracts during the pandemic

Some contracts contain terms which give a business the right to change elements (terms) of the contract after it has been agreed with the consumer.

These are known as ‘variation clauses’. Businesses might try to use these to change the terms of contracts and ensure they cover issues arising from the coronavirus pandemic.

Variation clauses are likely to be unfair and unenforceable under Part 2 of the Consumer Rights Act 2015 if:

The CMA is unlikely to object to voluntary arrangements entered into between businesses and consumers provided they are fairly agreed, and the business does not pressurise or mislead the consumer in any way to accept the new arrangement.

Consumers should also not be left in a worse position where they have sought to find a resolution in this way.

Terms in new contracts which relate to the coronavirus

Businesses may be planning to redraft their standard terms and conditions to include specific provisions relating to the coronavirus in contracts with new customers.

Whilst each case will depend on the circumstances and the specific terms used in the contract, the CMA considers terms are likely to be unfair and therefore unenforceable if they prevent consumers from obtaining a refund in circumstances where lockdown laws mean that a contract cannot be performed as agreed.

Any terms and conditions relating to refunds and the coronavirus, as well as provisions relating to cancellation and refunds more generally, must also be clearly and prominently set out in the contract.

They must be appropriately and clearly brought to the consumer’s attention before they enter into the contract.

Such terms are more likely to be fair and enforceable where they:

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Cancellation relating to government guidance

Where a service can legally be provided as agreed, but a business or consumer does not want to go ahead with the arrangement, for example because of government guidance, then the position is more legally complex.

The circumstances of each case will have to be carefully considered.

Examples of current government guidance are:

In some circumstances, there may be special rules which could mean consumers are entitled to a full refund, for example with package holidays.

If a package holiday could be cancelled in light of FCO advice against travel to the relevant country (due to unavoidable and extraordinary circumstances, as set out in The Package Travel and Linked Travel Arrangements Regulations 2018) then consumers should be entitled to a full refund.

In other cases, because government guidance does not contain legal restrictions, it is not clear whether a contract would be considered to have been legally ‘frustrated’ (which would generally entitle the consumer to a full refund).

If a contract has not been frustrated, then any applicable pre-existing terms and conditions on cancellation and refunds will apply (as long as they are fair).

However, it is important to note that whether a contract has been frustrated will depend on the circumstances. Although frustration is less likely where there are no legal restrictions in place, it is not impossible. If advice or guidance means a consumer would be at serious risk if the contract went ahead as agreed, it is possible a court might find that the contract had been frustrated.

If a contract has not been frustrated, then any applicable pre-existing terms and conditions on cancellation and refunds will apply (as long as they are fair).

In any event, the CMA takes the view that businesses should treat consumers fairly and responsibly in these circumstances and this may include trying to find a mutually acceptable solution.

Otherwise the consumer will be entitled to cancel and seek a refund in line with the applicable pre-existing terms and conditions, provided that those terms and conditions are fair.

Cancellation under the standard terms and conditions

Sometimes contracts have terms which say how consumers can cancel the contract early and what the consequences of early cancellation are. It is important that these terms are fair.

Terms which allow a business to cancel a contract without providing any of the promised goods or services but keep all or most of a consumer’s money are likely to be unfair and unenforceable.

Where a business cancels a contract because of government guidance without providing any services, the consumer should generally be entitled to get all their money back.

Where a consumer cancels a contract, for example in response to government guidance, they should not face disproportionately high charges for doing so, and it is important that businesses respect government guidance and treat consumers who cancel because of it fairly.

Terms which say no refund is available in any circumstances, or that a consumer must pay in full if they cancel early – without taking into account any savings to the business for not having to provide the service or being able to sell to another customer – are likely to be unfair.

The CMA considers that any money that a business can keep under the contract must reflect what it is actually losing as a result of the cancellation and must not be excessive. The contract must also set out clearly how the cancellation charge will be calculated.

The CMA considers that in most cases, in order to be fair:

Unfair terms are not binding and are not enforceable.

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Complying with government guidance is a very important part of stopping the spread of the coronavirus, and consumers should not be unfairly treated for doing so.

Where contracts are affected by government guidance, wherever possible, businesses should work with consumers to find solutions which work for both parties.

Where a business puts pressure on consumers not to follow government guidance this could be an unfair, and unlawful practice.

[Updated by the CMA August 28, 2020. The Guidance has been edited to remove some links to other parts of the CMA website but nothing of substance has been changed. Some images have been inserted that were not in the original document. The full original document can be found here.]

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