Sky UK Limited · DRN-3750138

The complaint Mr P complains that Sky UK Limited unfairly asks him to repay lending it provided for goods he says he didn’t receive. What happened On 31 March 2021 Mr P entered into a fixed sum loan with Sky to finance the purchase of a mobile phone, which was also to be supplied by Sky. Mr P says that he wasn’t at home when the device was meant to be delivered, but the package was taken in by a family member. He subsequently told Sky that when he returned home a few days later he found that the device wasn’t in the package. Mr P raised the issue with Sky on 5 April 2021. Sky wasn’t persuaded by what Mr P had said as it thought there wasn’t any evidence the package had been tampered with. It gave Mr P referral rights to this service, and Mr P subsequently asked us to look into the matter. Our investigator didn’t uphold Mr P’s complaint. They accepted that Mr P had provided pictures of the package he’d received which seems to show that it’d been accessed. However, they also said that Sky had provided pictures of the package when delivered which they said showed that it had likely not been accessed or opened before the point of delivery. They suggested it was possible the package could’ve been somehow accessed after it had been delivered but before Mr P ultimately opened it fully. Overall, they were persuaded that the device had most likely been in the package that had been delivered. Mr P didn’t agree. He said that no one else at his address would’ve accessed the package and suggested it could’ve been accessed by the courier, or that the device might not have been in the package from the outset. He maintained that he hadn’t received the goods he was meant to and had now had to buy an alternative device. Mr P asked for an ombudsman to make a decision on the case, so it’s been passed to me. What I’ve decided – and why I’ve considered all the available evidence and arguments to decide what’s fair and reasonable in the circumstances of this complaint. Sky provided Mr P with a fixed sum loan to finance the purchase on an electronic device. It was also the supplier of the device, so it was responsible for its delivery. As well as the fixed sum loan to cover the cost, Mr P had an additional contract with Sky for the supply and use of the device, as well as associated services. I’ve seen that the terms of Mr P’s fixed sum loan linked the other contract for the supply of the device. Given this, and as it appears that both contracts were sold as one package, in my view the contracts were intrinsically linked - the credit agreement actually sets out that it is a requirement for Mr P to also enter into a contract for the supply of equipment. As a

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result, I’ll consider both contracts together in determining whether Sky has treated Mr P fairly. Mr P’s fixed sum loan has terms which seek to stop him setting off a claim under one contract against the other. This might apply in a situation where Mr P seeks to make a claim about the failure to supply the goods to him under the linked contract for goods and services. I’ve thought about what the Consumer Rights Act 2015 (CRA) says about contract terms, and I’m also aware that it is for a court to decide if a term is unfair, but I’m required to take into account relevant law when deciding what is fair and reasonable. Having carefully considered this, I don’t think it would be fair to exclude Mr P’s right to set off a claim under one contract against the other. I think we can consider Mr P’s claim that Sky breached its contract with him by not supplying the goods. In any case there is a regulated credit agreement, under which Mr P is being charged for the goods, so I can consider whether Sky is acting fairly by asking Mr P to pay where there is a dispute about delivery. As a result, I’m able to decide whether I think, on balance, that the device in question was delivered to Mr P’s address. When the evidence is incomplete, inconclusive or contradictory (as it is in this case), I make my decision on the balance of probabilities – that is, what I think is most likely to have happened given the available evidence and the wider circumstances. Mr P made a number of submissions to our investigator and he might find I’ve not mentioned every point he’s made. That’s simply because I don’t find it necessary to do so in explaining what I consider to be a fair and reasonable outcome. I can, however, assure him that I’ve carefully considered everything he’s said and submitted. It seems both parties agree that a package was delivered to Mr P’s address. The courier’s notes show that someone at the address had provided Mr P’s identification to receive the package. Mr P accepts he left identification with a family member to receive the package. He contends, however, that the device wasn’t inside that package. Sky has gone into detail regarding the process it follows in fulfilling an order like Mr P’s. That includes receiving the device directly from the manufacturer and then employing various security measures, such as factory surveillance, anti-tamper measures as well as a digital record of the whereabouts of the package. Sky hasn’t provided any evidence relating to this specific device, but I can see from the pictures that Mr P provided that the weight of the contents of the box is recorded on the label at 0.85kg – a weight likely consistent with the device. So, given the process Sky’s explained as well as the level of security measures it seems to have employed to track and monitor the device’s whereabouts, and the information on the box’s label, on balance I think the device was likely in the package which was delivered. Additionally, Sky provided a picture of the package which was delivered to Mr P’s address, on what appears to be his doorstep. I think that picture shows that the package was undamaged, and it didn’t appear to have been tampered with. Mr P told us that when he returned after a few days away, both the top and bottom of the package were loose to the extent that it had gaps. The pictures of the package that Mr P has provided show it having been opened, but I agree the bottom of the package looks very loose, like it could’ve been accessed. That’s quite different to the condition of the package in the courier’s delivery picture.

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Mr P refutes that the package could’ve been accessed following its delivery, in his absence. He accounts for the difference in the appearance of the package due to the courier’s picture being of lower quality. I disagree. I think that the picture Sky has provided from its courier is sufficiently clear and shows that the package which was delivered was unlikely to have been accessed prior to delivery. So, on balance, I think it’s likely the device Mr P ordered was in the package which was delivered to his address. Taking all of the above into account, and on balance, I’m not persuaded that Sky failed to provide Mr P with the device he was given a loan for. So, it follows that I think Sky has acted fairly by asking Mr P to repay the loan it provided him with. My final decision For the reasons explained above, my final decision is that I don’t uphold this complaint. Under the rules of the Financial Ombudsman Service, I’m required to ask Mr P to accept or reject my decision before 7 April 2023. Stephen Trapp Ombudsman

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