Do I have to pay for a replacement if my smart meter breaks down after 12 months? DEAN DUNHAM answers

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

However, last month I started having problems with the monitor and have now discovered that it is defective and needs to be replaced.

My provider says they only give free replacements within the first twelve months, so I’ll have to pay for a new one. Is this correct?

Edward Green, Norwich.

Dean Dunham replies: Your energy supplier cites a rule from regulator Ofgem, which stipulates that energy companies only have to repair or replace your in-house monitor if it is found to be defective within the first twelve months of delivery.

She may then charge costs for delivering a new copy.

However, this is simply Ofgem’s rule and my view is that it may breach the Consumer Rights Act, which is not lawful.

This law applies to four types of contract scenarios, two of which clearly don’t apply here, but the other two do.

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

Every piece of information you find online, from government information about smart meters to energy supplier websites, tells you that there is no ‘upfront charge’ for smart meters and can therefore lead you to believe that they are free.

For this reason, most believe that no purchase agreement has been concluded, and therefore the Consumer Rights Act would not apply.

However, this does not mean they are free, as you will undoubtedly pay for them, even if not upfront.

Some online sources, including Energy Saving Trust, a UK organization that promotes energy efficiency, state: ‘Smart meters are completely free. . . Your energy supplier will recoup the costs over time through your energy bill.’

This could indicate that providers are charging a fee on your regular bill. If your provider does this, the Consumer Rights Act applies.

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

This is defined in Article 8 of the Consumer Rights Act as a situation where ownership of the goods is transferred to the consumer and there is some form of ‘consideration’ other than the payment of money.

That would be the case, as the consideration is that the consumer agrees to accept the smart meter.

So unless the meters: i) remain the property of the energy supplier at all times and/or; ii) absolutely no fees are charged to the consumer; my view is that the Consumer Rights Act will apply.

In this case, consumers are entitled to free repair or replacement, even after twelve months, if the problem is a fault rather than a damage caused by the consumer. This also means that the regulator’s rule is contrary to consumer law.

• Have you been fined for repairing a defective smart meter? Email [email protected]

Cannot get a refund for the jacket

I returned a jacket and, after waiting five weeks for a refund, I filed a chargeback claim.

My bank has now rejected this and says 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 arguing that 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 does not mean that you have no further rights. In fact, there is a breach of contract. Your bank has therefore wrongly rejected your chargeback claim.

Under Article 45 of the law, the trader must refund the money within 14 days. This legal obligation for the trader becomes a condition of the agreement with the consumer.

The trader has clearly not paid you within 14 days and there is therefore a ‘breach of contract’.

The only exception would be if the merchant disputes the refund, as the 14-day clock would only start once your right to a refund was proven.

Go back to your bank and explain this breach of contract. If your chargeback is still refused, 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 pursue the refund.

• Write to Dean Dunham, Money Mail, Scottish Ny Breaking, 20 Waterloo Street, Glasgow G2 6DB or email [email protected]. The Ny Breaking cannot accept any legal liability for any answers given.