Complaint upheld for Approved Used BMW Hybrid Electric range depletion

Concerns about second hand Hybrid and electric vehicle battery range because of high voltage battery degradation presents a significant concern for buyers.

The problem is that although EV batteries lose capacity and range over time there is little or no information about the rate they lose charge and by how much the electric range depletes.

Instead, the manufacturer publishes the WLTP range for new vehicles and dealers simply disclaim the accuracy of this information for second hand cars leaving the consumer none the wiser.

However, the absence of information as to what the EV range is likely to be can give rise to a legal cause of action, as was the case involving used BMW X5 eDrive MSport.

The facts

Dr C  bought the BMW X5 eDrive MSport from a BMW maim dealer by way of a HP agreement with BMW Financial Services.

Dr C particularly wanted a hybrid car with enough electric range to enable him to commute to and from work entirely using the electric motor.

The new car information stated when fully charged the vehicle has a range of up to 31 kilometres (approx. 19 miles) in the all-electric drive mode and nobody at the BMW dealership gave him any reason to believe the X5 would not do about the same.

Soon after taking delivery because the BMW was only achieving an EV range of 11 miles Dr C returned the car to the supplying dealer.

The diagnostic testing revealed that in fact, the EV range was around 7 miles and Dr C rejected the car.

BMW Financial Services did not uphold the complaint because regardless of being an PHEV or not, the range available both in fuel capacity (MPG) and battery range is merely a guide of figures/range that can be achieved.

Our Instructions

Dr C instructed Stormcatcher to correspond with BMWFS and deal with the Financial Ombudsman Service.

A further diagnostic test was carried out by a different BMW dealer who concluded that for the range to be so low there must be a problem with the HV battery requiring its removal and inspection.

This significantly called into question the BMW approved used pre-delivery checks, whether they were ever carried out or whether the HV battery and/or the EV range was ever checked.

Preliminary decision

The Financial Ombudsman Service investigator concluded that because the range was under half that of a new vehicle means there must be something wrong with the car. This was supported by the car dashboard showing the battery as 100% full with a range of 9 miles.

While it was accepted that batteries degrade over time, the amount the vehicle range has depleted is below what a reasonable person would expect from a prestige car.

The investigator also agreed that Dr C could not be expected to pay the monthly finance payments and the costs of hiring an alternative car and that he should pay one or the other.

As a result the provisional decision was that Dr C was entitled to reject the X5 and BMW Financial Services should unwind the HP agreement, refund him the deposit and all but one monthly payment.

BMWFS accepted the provisional decision.

Conclusion

This case demonstrates how misrepresentation and breach of the implied terms under the Consumer Rights Act in relation to description can arise in circumstances where there is not an express statement of fact about the EV range.

Misrepresentation can arise by conduct and by concealment. Here the impression that the new car data would be at least comparable to a late model used car and the car had passed its PDI indicating it is operating as it should led Dr C to believe, the car would yield a similar range to that published by the manufacturer.