A: Vulnerability can manifest in many ways and it is hard to define what makes one consumer more vulnerable than another and how their rights may vary. The first question which requires attention is, therefore, can you identify your vulnerable customers?
The CTSI Guidance for Traders on Pricing Practices, succinctly addresses the issue:
The Regulations require traders to ensure that consumers are not treated unfairly, by reference to the standard of an average consumer. However, it is important to understand that the characteristics of the average consumer may include vulnerability.
This highlights the first issue when assessing vulnerability and the challenges of fair dealing with consumers in vulnerable circumstances. It is very difficult to categorise vulnerability and any one of use can be in a vulnerable circumstances at different times in their lives, not least when concluding contracts in their own home.
Traders should also be mindful of not putting consumers in vulnerable circumstances by the actions of your organisation and your failure to provide an inclusive service. It is these circumstances that I will address in this article which looks at some of the issues traders can face when concluding contracts and carrying out works in a consumer’s home. This should be a catalyst for traders to look again at their obligations and assess internal policies to ensure they are inclusive and that customers are being treated fairly, whatever their personal circumstances at a particular point in time.
One of the first skills in establishing whether a consumer has specific needs is to establish trust and, by using the art of conversation and observation, to create opportunities to encourage personal contact so that consumer’s specific requirements are more easily identified. This, in short, means training and nurturing soft-skills among colleagues, sub-contractors and consultants – in short any one that may be placed within a consumer’s home environment.
Rules of Etiquette
Making sure everyone in a project team is aware of these rules, is an important first step to ensuring any service is accessible and considerate of its customer’s needs.
There are some easy steps that can be incorporated into business processes such as setting boundaries – where are you authorised to be; where do you need access to for reasonable completion of the works?
This enables customers to better anticipate what to expect and plan for this, allowing for a journey with as little disruption as possible and no surprises along the way…
Too much to do; too expensive to implement?
There is a British Standard on providing exclusive services which aims to enable organisations to identify which of the provisions apply to their service and to cultivate a fair and flexible approach to all of their customers.
Citizens Advice states that these could result in a reduction in costs, for example by eliminating repeat calls and enabling more targeted interactions, both of which increase satisfaction levels which has a positive impact on the business. Setting the standards of an organisation above those of its competitors could be considered to be money well spent, not only in terms of best practice, but also in meeting legal obligations since, notwithstanding the aspirations set by the British Standard and undeniable benefits of providing an inclusive service, there are certain legal obligations which also need to be considered in order to ensure traders are compliant, as well as considerate.
Equality and Discrimination - From a legal perspective, it is important to note that there are obligations under the Equality Act 2010 with regards to protected characteristics which are designed to ensure that everyone is treated equally. People should not be treated in a discriminatory way because of the protected characteristics which are outlined in the Act and no service provider is exempt from this requirement. This continued to apply after the consumer has ceased using the service, so if a reasonable adjustment has been made at some point in the past, this is a continuing duty in future contacts.
The 2010 Act also concerns provisions relating to consumers being treated unfairly because of something connected with a disability. The discrimination is not unlawful if the you can show that you did not know or could not reasonably be expected to know that the person was disabled, however you should take reasonable steps to find out whether someone is disabled without infringing on a person’s privacy and dignity. There is a positive duty to make reasonable adjustments to enable a consumer to access the service in question and this entails proactive, anticipatory steps to avoid the disadvantage.
Remember discrimination can be direct or indirect; intentional or unintentional and it advisable for organisations to carry out regular process reviews to ascertain who uses its services, how they do so and ensure that they are open and accessible to all, throughout the whole engagement with them – not just when things go wrong.
Fitness for Purpose - Under the Consumer Rights Act 2015, goods must be fit for all usual and common purposes and any purpose made known to the seller. This includes something which ought to have been obvious from the context of the sale. So, for example, if a consumer has a mobility issue which brings accessibility into the context of the project, this should be incorporated without the need to ask. Similarly, if a product is simply not suitable for a particular consumer, using the soft-skills during the course of the sale, can make for a happier consumer with a more suitable product for their needs.
This gives rise to sometimes sensitive issues relating to the use of products by individuals. Sales colleagues should be made aware of the ramifications of getting it wrong and also given training and support to enable them to assist the consumer in making the best possible choice to suit all of their requirements.
The customer in their home
Whether selling in a consumer’s home or visiting to carry out inspections or service visits, the consumer is more likely to be vulnerable within this environment for one very obvious, but often overlooked reason: they cannot leave.
Signing a completion certificate following installation will not negate a consumer’s right to a remedy. This accepted maxim is based in common sense and an acknowledgement of the fact that you are a stranger in their safe environment.
The Consumer Contracts Regulations 2013 which deal with distance selling, also acknowledges this, giving the consumer a right to cancel for whatever reason they choose within a specified timeframe when contracts are made within the home. This is, again, an acknowledgement that selling within the home can bring with it a set of unique circumstances which may in themselves add to the consumer’s vulnerability.
However, remembering why the consumer requires the product and taking all steps to ensure that the processes are adequately explained to the consumer, will help alleviate any issues should they arise. Allowing the consumer an initial “cooling off” period before entering into production, may be of assistance in ensuring the consumer has goods which are suitable for their needs and making sure the business does not end up with a returned product which is unsuitable for resale.
As a footnote, and with an eye to changes which were implemented by the General Data Protection Regulations and new Data Protection Act 2018, which place a greater onus on businesses with regards to personal and sensitive data, data protection is more than worthy of note here. Often where vulnerability is concerned third parties intervene on a consumer’s behalf and it is important that authority is sought from the person named on the contract to deal with any such third party, be it son, mother, counsellor or trading standards. There are also important considerations regarding data sharing and consent to direct marketing which cannot be overlooked.
Why is this important?
Membership of an alternative dispute resolution scheme, such as The furniture Ombudsman, will ensure that consumers are catered for at every point of their journey, even when they are in dispute. This avoids the expense and uncertainty of daunting court action.
By raising the threshold and treating all consumers with sensitivity and without presumption, you ensure fair and equal access to the services and demonstrating a commitment to raising standards and promoting responsible retail.
We therefore propose a Charter for Fairness which means that every organisation will have inclusive service at the heart of its policy and goes beyond the legal minimum.
Best Practice - A Charter for Fairness
- Take time to talk to me
- Treat me as an individual
- Encourage flexible, tailored outcomes
- Don’t wait for me
- I need help
– review your processes: do you have time to listen?
- no 2 claims are the same: do you make assumptions?
- no 1 size fits all: do you make allowances?
- be proactive: do you encourage forward thinking?
- Signpost: do you know where I could go?
Head of ADR & Senior Ombudsman