CHOICE membership

Cooling off periods- when do they apply?

I recently heard from my brother that my mother, who lives iin a granny flat at his place, recently went into her local Telstra shop to disconnect her land line and get help about an app on her mobile. A taxi driver apparently told her the taxi app doesn’t work on her Sony Xperia phone (a few years old), so she asked about it since she was going to the shop to get her land line disconnected. This was to save money ($480/year - a significant expense on an old age pension), and just use her mobile phone for everything.
It seems the sales person has talked her into a new contract with a new phone, which will wipe out most of the savings! I heard after a few days that she wasn’t all that happy with the new phone, so I suggested she go back and cancel the sale and get a refund, as there should be some sort of cooling off period.
My brother has just informed me that the sales person told her that there is no cooling off period for in-shop sales.
Is that true?

That is correct. See the TIO website.

It states “Cooling-off periods do not apply where a consumer visits a provider’s store, calls to request a service or orders a service online. The purpose of a cooling-off period is to protect a consumer from being bound by an unsolicited contract that does not fit their needs, by giving them time to reassess and cancel the contract if necessary.

If the phone is unsuitable for the purpose it was bought for, say, your mother can’t hear the ringing due to partial deafness (ring tone not loud enough) or can’t read the screen clearly due to poor eyesight and the sales rep in the store indicated that the phone would be suitable for people with such limitations, then it may be possible to argue that the sales rep mislead your mother when purchasing the phone under contract. These may be difficult to determine in a store demo and only possible once the phone is used in normal environments.

One might also be able to argue that the phone sold is beyond the technical capabilities of your mother as well and see what the response is from Telstra. This might be difficult to argue since she already has had a smart phone.

For the above, it is possible they might exchange the phone under the same contract, but she may not be able to break the contract.

Likewise for contract costs etc. If your mother was mislead and told would be no different to what she was currently on, then this would need to be resolved by Telstra. It would be difficult however to argue as she would have accepted costs as part of the contract agreement signed in store.

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Thanks, I feared that may have neen the case, even though they talked her into something she clearly does not need.

I’ll talk to her tomorrow and find out what she doesn’t like about it, but I suspect it wont be enough to escape the contract.

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Telcos have poor histories holding their unhappy customers feet to their fires, but a salesman that takes advantage of an older person by upselling something they do not need has made an unconscionable sale as I see it.

Consider approaching Telstra management (shop and then regional and perhaps executive) for a cancellation, hat in hand, at less than full cost. The biggest obstacle other than inflexible business policies could be that the new mobile has been used so they cannot resell it as new. If there is no receptivity from Telstra toward an amicable resolution perhaps the TIO might step in on the basis of unconscionable sales tactics. Nothing ventured nothing gained.

If the key issue is that she does not like the new phone, it is common to dislike new things that are different from our old things as we age. That would not be persuasive for cancellation. If the key issue is the plan is unaffordable for a pensioner they might be more receptive, or not.

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But… she didnt visit with the intention of ordering a service. She wanted to cancel one. Small point, but perhaps one worthwhile to point out to the sales people.

You said yourself OP… she was going to the shop to get her land line disconnected.

This may also be a useful link…

don’t take advantage of disadvantage
A compliance guide for businesses dealing with disadvantaged
or vulnerable consumers

Vulnerable consumers

The Australian Competition and Consumer Commission (the ACCC) Guidelines on Don’t take advantage of disadvantage: a compliance guide for businesses dealing with disadvantaged and vulnerable consumers (2011) (the Guidelines) say that some groups of people may be disadvantaged or vulnerable in the market place if they:
have a low income
are from a non-English speaking background
have a disability, including intellectual, psychiatric, physical, sensory, neurological or a learning disability
have a serious or chronic illness
have poor reading, writing and numerical skills
are homeless
are very young
are elderly
come from a remote area, or
have an Indigenous background.
Telecommunications providers are required under clause 6.10.1(b) Telecommunications Consumer Protections Code (TCP Code), to adopt best practice as set out in the Guidelines.
The Guidelines include the following guidance for providers:
If it is apparent that a potential customer may not have the capacity to make a voluntary or informed purchasing or contractual decision, a provider needs to act responsibly and take extra care in its dealings to ensure that no unfair advantage is taken.
A provider should be alert to any special needs its customers have and make sure it has systems in place to prevent any unfair treatment.
A provider should consider that it may be appropriate for a guardian, carer or other appropriate person to be present to either act on the consumer’s behalf or help explain and assist the consumer with a decision.
If things go wrong, a provider should be open to resolving complaints and, where appropriate, setting aside contracts or agreements.
Under clause 4.4.3 of the TCP Code, a provider must train its sales representatives on how to interact with disadvantaged or vulnerable consumers appropriately.

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Good info that might help…

The purpose of a cooling-off period is to protect a consumer from being bound by an unsolicited contract that does not fit their needs, by giving them time to reassess and cancel the contract if necessary.

The cooling-off period for individuals is 10 business days. This period starts:

for sales made over the phone: the day after a consumer receives a written copy of the contract.
for sales made in person: the day after the agreement is made.
The consumer can cancel the contract for any reason during the 10 business days

This may also help…

Critical information summary
Providers must give consumers a written summary of a telecommunications offer before a consumer agrees to the offer. The written summary is called a critical information summary and it should contain important information about the contract such as the minimum contract term, billing and payment information and how a consumer can monitor their usage.

Consumers can check that the information they are told by a sales person matches the information in the critical information summary.

If there is a problem
Consumers may come to the TIO in a range of circumstances related to cooling-off periods. These include circumstances where the consumer:

has received bills despite cancelling during the cooling-off period, or
did not receive information about how to cancel and thus missed the cooling-off deadline.
If a problem arises, consumers should contact the provider as soon as possible to discuss the issue and give the provider an opportunity to look into the problem. If the consumer is not satisfied with the provider’s response, they can contact the TIO to help resolve their complaint.

Was she given a critical info summary prior to signing?

https://www.tio.com.au/publications/news/cancelling-a-contract-during-a-cooling-off-period

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Hi @Khary, I understand your points but it is my understanding is the cooling off period is for unsolicited approach by an seller such as by telephone, approached in the street/shopping centre or door to door selling. That being a contract is signed when a person had no intention to interact with or search/make inquiry about the services subject of the contract. This is broadly outlined by the paragraph preceding the one I quoted in an earlier post. The preceding paragraph is:

'Contracts which have been initiated by a service provider over the phone such as a telemarketing call or at a location other than the provider’s place of business (for example, a door-to-door sale or being approached in a public place such as a shopping centre) are generally subject to a cooling-off period. ’

As @gordon’s mother approached the Telstra store for a service…both with the intention of cancelling the home phone but also to discuss problems with having an older phone where latest taxi apps don’t work. The Telstra store attendant would have met the customer approach by cancelling the home phone and also by offering a phone under contract which allows taxi apps to operate. This doesn’t meet the TIO cooling off requirements as the purchaser initiated the contact.

It could be seen to be similar to walking into electronics store to inquire about the newest and latest model television but end up buying something else. Such would not have a cooling off period as the purchaser made the contact about the service provided, not the other way around.

It would be interesting to know whether the Telstra provided other options such as the purchase of an unlocked phone outright (which can be a significant capital outlay upfront, but cheaper over the life of a contract) or alternative monthly call plans. Such may never be known but expect that Telstra would possibly argue that the store contained information about outright purchase phones and alternative plans. Just like a electronic store that has in store information available about sale contracts and product prices and details.

As @TheBBG indicated, it may be worth approaching Telstra again to see their response when potentially trying the unconscionable sales tactics argument…to see if Telstra has a sympathetic ear.

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Yeah the unconscionable clause was second part I thought could help. It states… where appropriate, setting aside contracts or agreements…

"A provider should consider that it may be appropriate for a guardian, carer or other appropriate person to be present to either act on the consumer’s behalf or help explain and assist the consumer with a decision.

If things go wrong, a provider should be open to resolving complaints and, where appropriate, setting aside contracts or agreements.
Under clause 4.4.3 of the TCP Code, a provider must train its sales representatives on how to interact with disadvantaged or vulnerable consumers appropriately."

Re alternative options they are required by law to offer any available that meet the customers needs. I also wondered half heartedly if that was done as I wld lay money it wasn’t.

Gordon play on her age (sorry mum), that she gets confused etc and u shld have really been there. Press them on their staff training. Ask did they offer all options and provide the required information by law prior to signing her. They may be willing to change the phone or plan if u play on that and mention both TIO and ACCC. Even if it’s to get u to go away u might get lucky. U never know lol

She has contacted the TIO, who suggested she go back to Telstra, but they aren’t interested… I’m 400km away and my brother works in Sydney so isn’t around during office hours to go with mum, who is 83, and was no doubt taken advantage of.
More than 10 days have passed now, so I think she is stuck with an expensive phone she doesn’t need. I’m sure the taxi app will work on her old phone, she just needed help with operating it, and asking Telstra for help was clearly a mistake.
I will certainly (continue to) avoid any dealings with Telstra, as their behaviour sucks.

Slightly off topic, yet not given its an 80 yr old pensioner and Telstra…

I saw this post on a friends facebook feed and thought I would post it here as another example of Telstra taking advantage of our elderly… Unbelievable !


27 March at 21:35 · Sydney, NSW ·
#refundannie My 80 years old elderly neighbour Annie, a pensioner, fragile, vulnerable, constantly in and out of hospital, computer illiterate and no understanding or knowledge for data usage or call plans, approached me for some advice on her Telstra bill.
I was shocked. Annie’s Telstra bill for the month of March was $142.70. I’m a tech savvy IT professional, and I don’t even pay that much for my internet and mobile service.
Annie told me she only uses the internet to pay bills, the occasional email and Facebook logon to stay in touch with relatives overseas, and a couple of calls to friends, relatives interstate and to her doctor.
I called Telstra on the behalf of Annie to find out how much she actually consumed for the month of March.
Poor Annie paid $142.70 for:
• 10 mobile calls - $30
• 2 landline calls – $52.75
• 3 gig – $59.95
Annie has been paying Telstra roughly the same amount for the past 10 years, that’s around 17 thousand dollars.
The Telstra operator offered a new bundle deal for $100 which had unlimited mobile and landline calls, and 100 gig of internet data. Apparently this was the best Telstra could offer, but I didn’t think that was good enough. Annie would never come close to consuming that kind of data or have the need for unlimited calls.
With Annie’s agreement, I cancelled her internet with Telstra and offered my WIFI but unfortunately my signal was too weak. Luckily we have another great neighbour Loraine from the apartment above Annie and she was more than happy give Annie access to her WIFI. Annie now no longer has to pay $59.95 per month for internet.
We changed the $52.75 unlimited landline plan, to a basic $26.50 a month line rental. This means Annie will now only pay for calls made and potentially saving $15 a month.
Rather than paying $30 a month for her month-to-month Mobile plan, we changed it to a prepaid plan with $30 credit for 6 months. Based on 10 calls per month, she will save another $15 per month.
In total, Annie will now save between $90 and $100 a month or around $1000 a year.
I wonder how many other vulnerable pensioners Telstra are taking advantage of this way. Is there not a consumer protection law in place to protect the vulnerable?
The Telstra brand for many pensioners is the only brands they recognise and they often remain brand loyal. Shouldn’t Telstra offer a specific product for loyal pensioners like Annie who barely consume any data?
Telstra also have the ability to identify vulnerable customer by Date of Birth that are consuming very little from a product for a long period of time. Though this would be wishful thinking, but they certainly know exactly who is over paying, but prefer to just take money from the vulnerable. Where is the trust in that? And why should these customers remain loyal to a brand that doesn’t really care for them, but yet have the power to care?
Particularly for pensioners, every cent counts, Telstra what are you going to do for Annie and other pensioners out there??
TELSTRA KEPT DELETING THIS POST AND FINALLY THEY HAVE COME UP WITH AN EXCUSE AS TO WHY. APPARENTLY THE BILL WAS DISPLAYING PERSONAL OR ACCOUNT DETAILS AND SECURITY. SO HERE IS THE POST OF THE BILL ON THEIR PAGE WITHOUT THE DETAILS…
https://www.facebook.com/photo.php?fbid=10155036728570120&set=o.9322764314&type=3&theater
Here is the link to the tweet if anyone uses Twitter:
https://twitter.com/ranui/status/846544347927474176
#telstra #ripoff #overpriced #telstratakingadvantageofpensioners

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@Khary - thanks for sharing. Based on the computer literacy stats I have seen, it makes me wonder just how much of this type of thing is occurring. Let’s hope some common sense kicks in and Annie receives fair treatment!

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