There’s big news that a woman got a refund off Lloyds TSB for her PIP breast implants which had burst. This happened as she’d paid on a credit card and the purchase cost over £100, meaning under Section 75 law the card company is jointly liable for anything going wrong with the product.
This has given welcome hope to many worried about implants – and as many questions have come my way, I’ve quickly knocked out some thoughts and clarification on what hope this brings to others.
Section 75 doesn’t give extra rights
I often say you get "extra protection" paying for something that costs over £100 on a credit card (always repay in full so there’s no interest) yet that doesn’t mean you get more rights, it just means you’ve someone else to complain to if things go wrong.
Section 75 means you have identical rights with the card company as you do with the retailer or supplier. So if your fridge breaks down after a week and is obviously faulty, you could choose to take it to the company you bought it from, or equally you could make that complaint to the credit card provider (full explanation in the Section 75 guide).
In this case, as the breast implant provider had gone into administration, there was no choice. She had to complain to the card company.
This is about your Sad Fart consumer rights
As far as I read from the reports, the lady was relying on her ‘sale of goods act’ rights to make this complaint. These are what I call the Sad Fart rights, as they mean goods must be:
Satisfactory quality, As Described, Fit for purpose, And last a Reasonable length of Time.
These rules last six years from purchase. In the first six months it’s for the company to prove they weren’t faulty when bought, after that you must prove they were. Full explanation in the Consumer Rights guide.
The fault here was manifest
Following on from the Sad Fart rules, that means in this lady’s case as the fault was obvious – a ruptured implant – that it was very likely not of satisfactory quality and possibly neither had they lasted a reasonable length of time. This clarity would have helped the claim.
From my very cursory knowledge of the PIP issues, those who have implants which haven’t ruptured would have a more difficult argument as the fault is more difficult to prove.
And remember – it is for you to PROVE they were faulty WHEN YOU GOT THEM.
The fact these were recent impacts helps
Under the Sad Fart laws, goods must last a ‘reasonable length of time’, up to a maximum of six years. There is no strict definition on what this time should be, it depends on the goods.
My usual way of explaining is to say if a 10p torch broke after a year and a £1,000 plasma TV also broke after a year, you’d probably say the first was reasonable, the second not.
So here, as she had had the implants for three years when she realised there was an issue, it makes the "it didn’t last a reasonable time" argument stronger.
Does this set a precedent?
No, not in a legal sense, though it does at least indicate Lloyds’ attitude to those with ruptured PIP implants. Whether this can be read across for those who had implants for longer, for implants that haven’t ruptured yet, or the attitude of other banks is a big question. Although certainly it helps strengthen the argument in those cases.
It does, however, open the door
As a tactical decision it does, however, mean some people who are fighting for refunds from implant companies may want to switch target to their credit card provider if their implant company has a militant "no refund" stance.
After all, credit card companies have far deeper pockets and are less likely to be pushed into administration as this doesn’t affect their entire business model. (Please note whether that’s fair or not is a discussion for a different day.)
At the very minimum, if I were a Lloyds customer who’d paid on a credit card, I would see this as a strong option.
It also allows you to fight at the Ombudsman not the courts
One real advantage here for those who paid on credit cards is that they can appeal to the Ombudsman rather than the court if they are turned down by their provider.
With consumer rights, if you complain to a company, and it turns you down, you’d need go to court. While hopefully you’d be put in the ‘small claims’ track of the court, which means you can’t have massive costs awarded against you, there is no guarantee of this.
Yet if you’re challenging a finance company’s decision, eg, a credit card company refusing to pay out under Section 75 rules, then you can go, for free, to the Financial Ombudsman Service, without lawyers and with a much more simple process (full info in the Financial Ombudsman guide).
Plus, while courts can only decide based on the law, the Ombudsman looks at three pieces of info:
– The law.
– Whether you’ve been ‘treated fairly’.
– Standard industry practice.
You may be thinking "being treated fairly" is woolly, and indeed it is. But that’s to your advantage, as it’s a much more diffuse characteristic. Plus, after the Lloyds decision, you could argue we already have some industry practice in favour of paying out.
I hope some will find this brain dump useful – with these issues, it’s partly about waiting to see how things pan out. I’d love your comments below, especially if there are any consumer lawyers reading this.