I was just checking that the Chair is awake. I rise to move Amendment 46A in my name and that of my noble friend, Lord Stevenson. We have given him the day off today, so I fear that you are going to hear rather a lot of my voice.
Amendment 46A is, of course, of central importance to users of services, as it would ensure that they have access to the remedies laid out in the Bill, should a service fail to deliver on the promised or anticipated outcome. The amendment would bring the regime for services into line with that for goods and digital content. That is important for the clarity of the Bill, but it would also ensure that the Bill lives up to what customers expect, which is that a service should do what it is supposed to do, rather than being measured simply on whether the service provider used “reasonable care and skill”.
The amendment would also do what the BIS Select Committee in another place recommended, which is that the Bill should apply an outcomes-based standard to how we measure services. Thus, whether a service has been satisfactorily delivered should be measured against what it was meant to do, not the attributes of the provider.
We might note that the Solicitors Regulation Authority has moved to outcomes-based regulation. It places the emphasis not simply on compliance with rules, but on achieving the required outcome for clients. Many of the excuses given for the Bill not adopting this outcomes-based standard have cited lawyers, but they are the very people who have accepted that standard. Given that we have these very welcome statutory remedies in the Bill for substandard services, we fear that they will not properly protect consumers if they only test whether the trader exercised reasonable care and skill, with no consideration of the outcome.
Let us take the example of a householder getting their windows cleaned. Were the windows cleaned properly? No, but the company said it used reasonable care and skill, so the customer may have no remedy for the late arrival of the window-cleaner, one window overlooked or a few smears left on the door. They would have no chance of a price reduction, or even a rewash, as the firm used skilled window-cleaners who said that they took reasonable care.
With many services, particularly those provided by the professions, it would be difficult, if not impossible, for a client to prove that the service had not been performed with reasonable care and skill, even when it is very obvious that the result is unsatisfactory. Furthermore, I understand that there is no general definition of “reasonable care and skill”, so we will have to await case law in due course to set out what will be taken into consideration when judging whether a service has met the required standard. It will be hard for the consumer to know, therefore, whether they have the right to a remedy if they are not satisfied with a job. By contrast, a professional trader or service provider is far more likely to know, and therefore be able to advise in advance, what outcome can be anticipated. It is, after all, the outcome that matters to the customer.
The organisation Which? told us that the majority of complaints it sees are about services, particularly about broadband, mobile phones and energy. Its research
showed that consumers do not feel well protected when they are buying services and they are not confident that they will be treated fairly. Indeed, one-third of the consumers who failed to complain even when unsatisfied did not bother to do so because they simply did not believe that anything would be done. They have no knowledge of how a satisfactory service is to be measured at the moment, nor would they under the Bill.
Amendment 46A would also address the problem that, without it, the Bill sets two different standards for goods and services—that goods must be “of satisfactory quality” whereas services need be delivered only with “reasonable care and skill”. Perhaps we can revert to a discussion that we had earlier in Committee of the sort of transactions in which both those elements are involved. For example, our kitchen is purchased as a good, but its installation is a service. Surely, it would be to the advantage of both the consumer and the trader if the definition of what is satisfactory was the same for both. Also earlier in Committee we discussed botched plumbing and the problems of divvying up the elements of the contract. That would be made even worse if different standards applied to the different parts of the final service. So, just as we may not know whether the flooding of the kitchen has been caused by a faulty sink or by poor installation, it will be even harder if the test on the reasonable outcome, if there was a leak, is different for the two elements of goods and service.
In another place, the Government claimed that Clause 50 requires traders to comply with any information that they have given before the contract started and that, therefore, the concept of outcome is embedded in the legislation. However, that contract may well not specify outcomes in the terms of, “Well, we’ll install a bath and taps such that water flows into the bath rather than down the side of the bath and on to the floor”. No consumer is going to check whether the pre-work contract specifies such expectations, which they rather take for granted. They may read very carefully, for example, whether the old bath is to be taken away, but they will hardly check that the plumbing and the electrics will work and that the place will be left clean and tidy afterwards. Yet these are reasonable expectations to have of a service.
Amendment 46A places the consumer’s experience of the service—that is, its outcome—as a part of the definition of satisfaction rather than its simply being a matter of the provider’s claim to have used skill and care. I beg to move.