Ombudsman rejected S75 Claim for £12,250.What next?

The complaint related to a kitchen ordered through a local kitchen store. The kitchen ordered on 14 December 2015 was by a well known manufacturer. The price for the kitchen and appliances were £24,500 and the deposit paid on 14 December 2015 was £12,250. The deposit was paid by Tesco Mastercard (£250) and debit card (£12,000). The Seller required 12 weeks notice to place the order with the manufacturer. At this stage, the Seller was well aware that we were in the early stages of a construction project to extend our house and kitchen.
Due to very poor workmanship, the building project was halted in April 2016 and the builder's contract terminated. The builder had not complied with any of the Building Regulations and the Local Council required the partially completed extension to be demolished and rebuilt. I was out over £26,000 and therefore entered into litigation with the builder and private building control inspector in August 2016. The Seller was kept informed of events at regular intervals. The litigation was settled almost in full in January 2017.

I notified the Seller in November 2016 that a new builder had been appointed and the building project would commence in January 2017. At this stage of our litigation, the settlement negotiations were well underway and we were able to appoint a new builder.

On 5 November 2016 I received an e mail from the Seller notifying me that certain doors/units we had ordered are no longer available and those parts of the kitchen design would need to be amended. I met with the Seller’s design manager on the 26 November 2016 and discussed various proposals, none of which I accepted but stated that I was open to further suggestions. The Seller suggested that an alternative supplier could make the kitchen but the price of the kitchen had gone up by £2,400. The new manufacturer is one that I had never heard of whereas the one previously selected was is a widely recognised kitchen brand.
I informed him that we did not want to proceed with the alternative brand and required the refund of our deposit.
In the e mail dated 14 December 2016, I stated that this sale is covered by the Consumer Rights Act 2015. Under Chapter 2, Section 11, the goods are to be as described and any changes made after entering into a contract are not effective unless expressly agreed between the consumer and trader. The material changes here are the change of manufacturer of the new units and the significant price difference between the price we agreed. Essentially, we are no longer being offered the kitchen we contracted to buy.
The Seller has refused to refund the deposit.
I then made a claim to Tesco Mastercard in January 2017 under Section 75 of the Consumer Credit Act 1974. Tesco responded with their final decision and have also refused to refund the deposit on the basis that they do not believe the Seller has breached the contract. Tesco are also relying on various terms of the Contract which do not comply with the Consumer Rights Act 2015 and therefore cannot be enforced for example the seller's right to charge an increased price and substitute the product. I then made a claim to the Financial Ombudsman I set out below the basis of Tesco’s refusal and why I believe them to be incorrect.
Tesco state that they are unable to see where the merchant has breached or misrepresented the contract. They failed to consider the clauses of the Consumer Rights Act that I had pointed them to.


1. The Consumer Rights Act 2015 Chapter 2, Section 11 states that the goods are to be as described and any changes made after entering into a contract are not effective unless expressly agreed between the Consumer and Trader.


3 Part 2 Section 62 (1) of the Consumer Rights Act 2015 states that an unfair term of a consumer contract is not binding on the customer. Schedule 2 of the Consumer Rights Act 2015 deems the following may be unfair, (12) allowing the trader to decide the characteristics of the subject matter of the contract after the consumer is bound, (14) allowing the trader discretion to set the price after the consumer is bound, where no price or method of determining the price is agreed when the consumer is bound, (15) allowing the trader to increase the price of goods without giving the consumer the right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded.

Part 2 Section 62 (4) of the Consumer Rights Act 2015 states that a term is unfair, if contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the customer.

It appears both Tesco and the Ombudsman are looking purely at whether there was any wrong doing on the part of the retailer. They maintain that the retailer did nothing wrong in this instance. We don’t disagree however it seems clear that the change of product and increased cost do not comply with the Consumer Rights Act. We surely can’t be bound to a contract where the item we contracted to buy isn’t available and the seller can substitute it for any other brand and at any other cost and we just have to pay? The increase in £2,400 being 10% is no small amount.

Any advice would be appreciated.