Do I’ve to pay to switch defective sensible meter? DEAN DUNHAM replies

In January last year, I agreed to have a smart meter installed after a great deal of encouragement from my energy supplier. 

Last month, however, I started experiencing problems with the monitor and I have now discovered it is faulty and needs replacing. 

My provider says it only gives free replacements within the first 12 months, so I will have to pay for a new one — is this correct?

Edward Green, Norwich.

Dean Dunham replies: Your energy provider is citing a rule imposed by the regulator, Ofgem, which provides that energy firms are only required to fix or replace your in-house monitor if it turns out to be faulty in the first 12 months after it was provided. 

Fault: A reader is being asked to pay for a new smart meter after his original unit developed a problem with its screen

After this, it can charge you for supplying a new one.

However, this is just Ofgem’s rule and my view is it potentially flies in the face of the Consumer Rights Act, which is not lawful.

This Act applies to four types of contract scenarios, two of which clearly do not apply here, but the other two might.

The first applies where there is a sale of goods (here the smart meter and monitor) for money. 

Every item of information you will find online, from Government information about smart meters to energy providers’ websites, will tell you that there is no ‘upfront charge’ for smart meters and may therefore lead you to believe they are free.

For this reason most believe there is no sales contract formed, and so the Consumer Rights Act would not apply. 

However, this does not mean they are free because, arguably, you do pay for them, even if not upfront. 

Some sources online, including Energy Saving Trust, a British organisation which promotes energy efficiency, state: ‘Smart meters are completely free . . . Your energy provider will recoup costs through your energy bills over time’. 

This would suggest providers levy a charge within your regular bill. If your provider does this, the Consumer Rights Act will apply.

The second scenario that may apply is where there is a ‘contract for the transfer of goods’. 

This is defined under Section 8 of the Consumer Rights Act as being where ownership of the goods is transferred to the consumer and there is some form of ‘consideration’ other than paying money. 

Here there would be, as the consideration is the consumer agreeing to accept the smart meter.

So, unless the meters: i) remain the property of the energy provider at all times and/or; ii) absolutely no charge is levied on the consumer, my view is the Consumer Rights Act will apply. 

In this case, consumers will be entitled to a free repair or replacement even after 12 months if the issue is a fault rather than damage caused by the consumer and it will also mean that the regulator’s rule is contrary to consumer laws.

• Have you been charged to fix a faulty smart meter? Email [email protected]

Can’t get coat refund

I returned a coat and, after waiting five weeks for a refund, I made a chargeback claim. 

My bank has now rejected this, saying there is no breach of contract as the retailer has agreed to refund me. What should I do now?.

Francis Taylor, Nottingham.

Dean Dunham replies: Your bank is correct in citing the remedy you are entitled to in these circumstances, under the Consumer Rights Act, is a refund. 

However, just because a refund has been promised, it does not mean you have no further rights and, in fact, here there is a breach of contract, so your bank was wrong to deny your chargeback claim.

Under Section 45 of the Act, the trader must refund the money within 14 days. This obligation on the trader under the law becomes a term of the contract with the consumer. 

Here, the trader has clearly failed to pay you within 14 days and this therefore amounts to a ‘breach of contract’. 

The only exception would be if the trader disputed the refund, as the 14-day clock would not commence until your right to a refund had been proven.

Go back to your bank and explain this breach of contract. If it still refuses your chargeback, file a claim with the Financial Ombudsman Service. 

If the facts are as you explain, this will be successful and your bank will have to pay out. You should also continue to chase the refund.

• Write to Dean Dunham, Money Mail, Scottish Daily Mail, 20 Waterloo Street, Glasgow G2 6DB or email [email protected]. No legal responsibility can be accepted by the Daily Mail for answers given.