Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • onyx911
    • By onyx911 8th Jun 17, 7:51 PM
    • 33Posts
    • 9Thanks
    onyx911
    Ombudsman rejected S75 Claim for £12,250.What next?
    • #1
    • 8th Jun 17, 7:51 PM
    Ombudsman rejected S75 Claim for £12,250.What next? 8th Jun 17 at 7:51 PM
    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 Sellerís 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 Tescoís 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 partiesí 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 donít disagree however it seems clear that the change of product and increased cost do not comply with the Consumer Rights Act. We surely canít be bound to a contract where the item we contracted to buy isnít 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.
Page 3
    • onyx911
    • By onyx911 9th Jun 17, 12:47 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    So you had access to them before posting here? Still begs the question as to why bother asking a bunch of strangers here rather than going directly back to the excellent barrister again?!

    You haven't got the answers you wanted to hear here so why not leave it to the professionals?
    Originally posted by lovinituk
    Relax, I called them this morning. I've sent the info the the clerk. That's as far as I got.

    The excellent barrister is very expensive. I still don't get what is wrong with asking for advice on a forum before incurring that cost.
    • lovinituk
    • By lovinituk 9th Jun 17, 12:49 PM
    • 5,371 Posts
    • 6,037 Thanks
    lovinituk
    Relax, I called them this morning. I've sent the info the the clerk. That's as far as I got.

    The excellent barrister is very expensive. I still don't get what is wrong with asking for advice on a forum before incurring that cost.
    Originally posted by onyx911
    Nothing wrong at all but just don't get upset when you don't hear what you want
    • onyx911
    • By onyx911 9th Jun 17, 12:52 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    Nothing wrong at all but just don't get upset when you don't hear what you want
    Originally posted by lovinituk
    The only time I got upset was when a poster told me I should have got my act together. We had a builder that tried to cut costs by not digging foundations at half the depth and a building control company that allowed it to happen by accepting photos as evidence of compliance with building regs rather than actual inspections. Something you'd see on cowboy builders and yet this builder was recommended by two colleagues.

    Despite the settled litigation, we haven't recovered all our costs as you would expect.

    This is now just another consequential dispute. I don't need sympathy and it's ok if you don't agree but to say this was my making is unfair. I didn't just buy something then change my mind and ask to return it. I wish the delay hadn't happened and I wish the units hadn't been discontinued. But they did.
    • unholyangel
    • By unholyangel 9th Jun 17, 12:58 PM
    • 11,278 Posts
    • 8,492 Thanks
    unholyangel
    The Ombudsman ruled in Tesco Finance's favour as it was a S75 claim against the credit card. The kitchen seller has been on the sidelines and not aware of the Ombudsman claim.
    Originally posted by onyx911
    Are you sure it was a section 75 claim and not a chargeback? Just chargebacks require a breach of contract in some way, s75 claims don't. If a section 75 claim, the ombudsman would have likely first considered whether you had a claim against the retailer.

    Its not uncommon for banks to raise chargebacks instead of section 75 claims (as obviously chargebacks are more generous towards them).

    What makes you think that you *ought* to be able to cancel a valid contract and get your deposit back? What sort of a one-sided contract would that be if it's binding on the seller but not the buyer? That is the crux of the dispute.

    The real problem is that the kitchen is coming from abroad, and the Pound has fallen. That has pushed up the cost, unfortunately. Somebody has to pay for it, and that somebody is you. Sorry.
    Originally posted by GDB2222
    You're saying that a contract needs to be binding on both but apparently are oblivious to the fact that allowing one to change what is supplied or the price that it is supplied at equates to the contract only being binding on one party. Each party are only bound by the obligations they agreed to accept. It can only be varied by agreement.

    Now it sounds as if OP sought to vary the agreement by delaying delivery. If the supplier agreed to it, its not a breach of contract its a variation.

    However OP is doing the right thing getting professional advice - especially since any court action is likely to be outwith the limits of small claims.
    Money doesn't solve poverty.....it creates it.
    • onyx911
    • By onyx911 9th Jun 17, 1:01 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    Are you sure it was a section 75 claim and not a chargeback? Just chargebacks require a breach of contract in some way, s75 claims don't. If a section 75 claim, the ombudsman would have likely first considered whether you had a claim against the retailer.

    Its not uncommon for banks to raise chargebacks instead of section 75 claims (as obviously chargebacks are more generous towards them).




    You're saying that a contract needs to be binding on both but apparently are oblivious to the fact that allowing one to change what is supplied or the price that it is supplied at equates to the contract only being binding on one party. Each party are only bound by the obligations they agreed to accept. It can only be varied by agreement.

    Now it sounds as if OP sought to vary the agreement by delaying delivery. If the supplier agreed to it, its not a breach of contract its a variation.

    However OP is doing the right thing getting professional advice - especially since any court action is likely to be outwith the limits of small claims.
    Originally posted by unholyangel
    Thank you. I didn't seek to change the date at all. No date was ever agreed. Similar to buying a house off plan - you get given notice when it's nearly ready. Seller asked us to let them know when we are 12 weeks from completion.
    • martinsurrey
    • By martinsurrey 9th Jun 17, 1:03 PM
    • 3,054 Posts
    • 3,735 Thanks
    martinsurrey
    The only time I got upset was when a poster told me I should have got my act together. We had a builder that tried to cut costs by not digging foundations at half the depth and a building control company that allowed it to happen by accepting photos as evidence of compliance with building regs rather than actual inspections. Something you'd see on cowboy builders and yet this builder was recommended by two colleagues.

    Despite the settled litigation, we haven't recovered all our costs as you would expect.

    This is now just another consequential dispute. I don't need sympathy and it's ok if you don't agree but to say this was my making is unfair. I didn't just buy something then change my mind and ask to return it. I wish the delay hadn't happened and I wish the units hadn't been discontinued. But they did.
    Originally posted by onyx911
    get your act together -"galvanize oneself into organizing one's affairs effectively."

    If you think entering a contract for a £25k kitchen and handing over £13k when it was possible that there would be a 15 month delay is effective, then we have different ideas of what it means.

    I do feel sorry for you, I didn't mean any offence, but contract law is a harsh mistress, and a court case would be painful.

    while stating it was your making might sound unfair, in contract terms you and your agents (the builder) are "you" for the contract, the retailer is the one with little blame.

    Everything I've said is supported by what we're been told. Hopefully your barrister will find something in the details you haven't told us to get you your wanted outcome, and I wish you luck, but I'm out.
    • onyx911
    • By onyx911 9th Jun 17, 1:04 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    It was definitely section 75 and what the Ombudsman said on the phone and in the letter was they would act if there was a breach of contract by the retailer. There was no breach which I agree. They couldn't consider whether changing the cost or product fell foul of the Consumer Rights Act which is something I'd asked them to consider. My argument was as you say, the seller is free to change product and price and I am bound to anything they want.
    • onyx911
    • By onyx911 9th Jun 17, 1:14 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    get your act together -"galvanize oneself into organizing one's affairs effectively."

    Everything I've said is supported by what we're been told. Hopefully your barrister will find something in the details you haven't told us to get you your wanted outcome, and I wish you luck, but I'm out.
    Originally posted by martinsurrey
    Thank you.
    • GDB2222
    • By GDB2222 9th Jun 17, 2:35 PM
    • 13,957 Posts
    • 74,935 Thanks
    GDB2222
    Thank you. I didn't seek to change the date at all. No date was ever agreed. Similar to buying a house off plan - you get given notice when it's nearly ready. Seller asked us to let them know when we are 12 weeks from completion.
    Originally posted by onyx911
    Yes, but clearly neither you nor the seller anticipated that it would be two years later! Kitchen designs are fashion items, and ranges do get changed.

    I expect that the seller's contract deals with this sort of delay. Provided it deals with it in an even-handed sort of way (without a significant imbalance in the parties' rights), the terms with survive scrutiny under the Consumer Rights Act.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • onyx911
    • By onyx911 9th Jun 17, 3:26 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    Just a further question if anyone is still following. What if I take the original kitchen from them, minus the 4 curved units that are not available and get those made by a good carpenter. That would work wouldn't it? Surely the kitchen company has to supply the kitchen then without making us take an alternative more expensive product or setting an expensive price on a cheaper product They could even keep the money for the curved units that are not available. .

    Can they say no? Is it breach of contract if they refuse to supply?
    • martinsurrey
    • By martinsurrey 9th Jun 17, 3:30 PM
    • 3,054 Posts
    • 3,735 Thanks
    martinsurrey
    Just a further question if anyone is still following. What if I take the original kitchen from them, minus the 4 curved units that are not available and get those made by a good carpenter. That would work wouldn't it? Surely the kitchen company has to supply the kitchen then without making us take an alternative more expensive product or setting an expensive price on a cheaper product They could even keep the money for the curved units that are not available. .

    Can they say no? Is it breach of contract if they refuse to supply?
    Originally posted by onyx911
    Its a gray area, we don't have the full contract to hand. they could make any number of arguments as to why its not a breach to not supply on the original terms.

    One thing I will say is that its seems like a reasonable solution at face value, so if they did refuse, you would have a much stronger position in court as judges like to see where people have tried to compromise.
    • powerful_Rogue
    • By powerful_Rogue 9th Jun 17, 3:40 PM
    • 3,203 Posts
    • 4,672 Thanks
    powerful_Rogue
    Just a further question if anyone is still following. What if I take the original kitchen from them, minus the 4 curved units that are not available and get those made by a good carpenter. That would work wouldn't it? Surely the kitchen company has to supply the kitchen then without making us take an alternative more expensive product or setting an expensive price on a cheaper product They could even keep the money for the curved units that are not available. .

    Can they say no? Is it breach of contract if they refuse to supply?
    Originally posted by onyx911
    This is what you should be asking your barrister.
    • GDB2222
    • By GDB2222 9th Jun 17, 3:53 PM
    • 13,957 Posts
    • 74,935 Thanks
    GDB2222
    Just a further question if anyone is still following. What if I take the original kitchen from them, minus the 4 curved units that are not available and get those made by a good carpenter. That would work wouldn't it? Surely the kitchen company has to supply the kitchen then without making us take an alternative more expensive product or setting an expensive price on a cheaper product They could even keep the money for the curved units that are not available. .

    Can they say no? Is it breach of contract if they refuse to supply?
    Originally posted by onyx911
    Say that reduces the price you pay the kitchen company by £4k, but it costs you £8k? What then?

    And will it ever match properly?
    No reliance should be placed on the above! Absolutely none, do you hear?
    • onyx911
    • By onyx911 9th Jun 17, 3:59 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    Say that reduces the price you pay the kitchen company by £4k, but it costs you £8k? What then?

    And will it ever match properly?
    Originally posted by GDB2222
    I don't anticipate it will cost £8k to make 4 units.

    I called the manufacturer this afternoon to see if there was any way they would special make the units that have been discontinued. They said no but they did give me a paint code. It wont be an exact match obviously as the colour can vary between batches.

    The price of those units was roughly £2.5k so allowing the seller to keep that money should cover the cost of increase - it would represent a 10% increase for the rest of the units for us.
    • Nodding Donkey
    • By Nodding Donkey 9th Jun 17, 4:25 PM
    • 2,431 Posts
    • 2,052 Thanks
    Nodding Donkey
    Surely the original building contractor is the one you should be suing for the increased price?
    • Manxman in exile
    • By Manxman in exile 9th Jun 17, 4:37 PM
    • 812 Posts
    • 533 Thanks
    Manxman in exile
    Surely the original building contractor is the one you should be suing for the increased price?
    Originally posted by Nodding Donkey

    Already answered I think. The OP reached an agreed settlement with the original builder, but the terms of that settlement excluded OP from any further claims. Unfortunately, OP did not know at that point that the kitchen was now unavailable.
    • Manxman in exile
    • By Manxman in exile 9th Jun 17, 4:44 PM
    • 812 Posts
    • 533 Thanks
    Manxman in exile
    Just a further question if anyone is still following. What if I take the original kitchen from them, minus the 4 curved units that are not available and get those made by a good carpenter. That would work wouldn't it? Surely the kitchen company has to supply the kitchen then without making us take an alternative more expensive product or setting an expensive price on a cheaper product They could even keep the money for the curved units that are not available. .

    Can they say no? Is it breach of contract if they refuse to supply?
    Originally posted by onyx911

    I think that if I were in your position I would be seriously considering this. You get the kitchen (more or less) that you want, without losing the deposit. It'll cost a bit more than you originally bargained for, but may be worth it if you get (more or less) what you originally wanted.


    But make sure you get a good joiner/carpenter. (Do your research. It's the sort of decision I hate having to make. I'd go with personal recommendations, but I think you said earlier the original builder had been recommended!)


    Good luck


    (Edit: but if you have faith in your barrister - you've used them in the earlier settlement? - see what they think about this idea)
    Last edited by Manxman in exile; 09-06-2017 at 4:46 PM. Reason: Addition
    • bris
    • By bris 9th Jun 17, 4:50 PM
    • 6,818 Posts
    • 5,850 Thanks
    bris
    The problem you have is that the financial ombudsman are not just pen pushers denying claims. There is legal due process they go through and the courts will have a similar understanding of the circumstances.
    The extra costs are down to a significant delay that could have constituted a breach on your part. Have you stopped to think that they could have forced you to conclude the contract much earlier? Significant delays don't just go one way.


    They will see this significant delay as a contributing factor to the rising costs, outwith the sellers control. It's not as if they are just sticking the extra on for profit.
    • GDB2222
    • By GDB2222 9th Jun 17, 4:57 PM
    • 13,957 Posts
    • 74,935 Thanks
    GDB2222
    I don't anticipate it will cost £8k to make 4 units.

    I called the manufacturer this afternoon to see if there was any way they would special make the units that have been discontinued. They said no but they did give me a paint code. It wont be an exact match obviously as the colour can vary between batches.

    The price of those units was roughly £2.5k so allowing the seller to keep that money should cover the cost of increase - it would represent a 10% increase for the rest of the units for us.
    Originally posted by onyx911
    Radius work is quite expensive, but it's probably a bit easier if it's being painted. Certainly, my woodworking skills wouldn't be up to it. (LOL)

    Any chance the factory will give you some of the paint batch they use for your main units?
    No reliance should be placed on the above! Absolutely none, do you hear?
    • onyx911
    • By onyx911 9th Jun 17, 6:14 PM
    • 33 Posts
    • 9 Thanks
    onyx911
    Radius work is quite expensive, but it's probably a bit easier if it's being painted. Certainly, my woodworking skills wouldn't be up to it. (LOL)

    Any chance the factory will give you some of the paint batch they use for your main units?
    Originally posted by GDB2222
    That's a good point. I will ask if we go down this route. Thank you
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

325Posts Today

3,056Users online

Martin's Twitter