Consumer Protection from Unfair Trading

Published on 2015-08-07

Aim of the Regulations

The Consumer Protection from Unfair Trading Regulations 2008 prohibits unfair commercial practices. The aim of the Regulations is to encourage businesses to be truthful about goods, services and prices and deal fairly with consumers.

Consumer

The OFT guidance refers to the average consumer. This is defined as someone who is reasonably well informed, reasonably observant and circumspect, taking into account social, cultural and linguistic factors; someone who would check out publicly available information for themselves where this can be easily done and would take reasonable care of their own interests.

Guidance from the OFT for estate agents was published in 2012 and much of that guidance could equally apply to residential letting and management agents. At the end of 2013, draft guidance for consultation was produced covering the residential letting and management sector. Full guidance is expected in due course. The main thrust of the guidance is that agents must supply sufficient information to customers to enable them to make an informed decision. The information should be specific to the consumer and related to the property or service in question.

Offences

A commercial practice is unfair if it does not meet the requirements of professional diligence and distorts the average consumer’s economic behaviour i.e. it appreciably impairs the average consumer’s ability to make an informed decision so causing them to make a transactional decision (e.g. view a property, make/ accept an offer etc) they would otherwise not have done. A commercial practice is also unfair if it is:

  • A misleading action: containing false information and is therefore untruthful or is likely to deceive
  • A misleading omission: omits or hides information or provides unclear or unintelligible information
  • Aggressive: impairs the consumer’s freedom of choice through harassment, coercion or undue influence
  • Listed in Schedule 1 of the Regulations: this lists all 31 commercial practices that are considered unfair in all circumstances e.g. displaying a professional body logo when not a member.

Offences, which can be committed by individuals or companies, are punishable by a fine, or an indictment to a fine, or up to two years’ imprisonment. A due diligence offence may be provided by an agent under certain circumstances.

Enforcement

The regulations are enforced by the Trading Standards Office (TSO), which has legal powers of entry, inspection and seizure. Action must be taken within three years of the offence taking place, or one year of the TSO being notified, whichever is the earlier.

TSOs can decide to take civil action to address breaches. NAEA and ARLA have negotiated ‘primary authority’ status with Warwickshire Trading Standards. This means that any member of these organisations who signs up to the service can receive consistent advice from Warwick on trading standards matters and this will have to be accepted by the TSOs local to the agency.

Categories: General Law