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    • onyx911
    • By onyx911 8th Jun 17, 7:51 PM
    • 31Posts
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    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 4
    • onyx911
    • By onyx911 9th Jun 17, 6:20 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    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.
    Originally posted by bris
    This is not strictly true. Just based on what the case worker told me on the phone yesterday. Under S75 they can only consider breach of contract or misrepresentation by the seller. Obviously that's not the case here so I accept their decision and I'm not using their route of appeal. My complaint was that the seller requiring us to complete the contract on an alternative product at a price they specify may be unfair under the specific clauses of the CRA i set out in the original post. The case worker said they can't consider the contract terms and whether they are enforeable but suggested I see alternative advice such as CAB or OFT.

    The case workers are not solicitors. They make an assessment based on their training and if I don't agree then it can be escalated to an Ombudsman. That can take a few months as there are many case workers but not as many ombudsman.

    Out of interest, where is it you think I have breached the contract? There was no completion date and no one has ever suggested a breach on our part so I'm interested.
    • onyx911
    • By onyx911 9th Jun 17, 6:33 PM
    • 31 Posts
    • 2 Thanks
    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)
    Originally posted by Manxman in exile
    Thank you. We've definitely learned a lesson regarding trademan. The new building firm are a local family run company, well known locally, members of the FMB, very high rating on checkatrade etc. They are a lot more expensive and the settlement doesn't nearly cover their cost but we didn't want to take any chances this time. My new moto in life is "pay peanuts, get monkeys"

    I have sent the documents to the barrister and his clerk is going to come back to me with a fee on Monday. I hope its reasonable because he was very good.
    • lincroft1710
    • By lincroft1710 9th Jun 17, 8:04 PM
    • 9,314 Posts
    • 7,247 Thanks
    lincroft1710
    members of the FMB, very high rating on checkatrade.
    Originally posted by onyx911
    Unfortunately, membership of the FMB isn't a guarantee of anything, it is very easy to become a member. I'm not sure how reliable checkatrade is for sourcing good tradespeople.
    • onyx911
    • By onyx911 9th Jun 17, 8:39 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    Unfortunately, membership of the FMB isn't a guarantee of anything, it is very easy to become a member. I'm not sure how reliable checkatrade is for sourcing good tradespeople.
    Originally posted by lincroft1710
    Thank you. It's very difficult to find someone reliable and trustworthy.

    We are at the tail end of our extension and the builder seems to be doing a good job. The Local Authority building control (didn't use private inspector this time) have been really good. They were obviously well aware of what happened with previous builder/building control and they've been very thorough in their inspections, even knocking on the door or calling after every inspection to confirm what they checked. I didn't ask them to do this.

    Almost felt sorry for the new builder who has been in the business for 37 years and never been scrutinised like this! To be fair, he hasn't complained and always maintained he is happy for his work to be thoroughly inspected.

    Lesson definitely learned.
    • neilmcl
    • By neilmcl 9th Jun 17, 8:41 PM
    • 9,570 Posts
    • 6,577 Thanks
    neilmcl
    Unfortunately, membership of the FMB isn't a guarantee of anything, it is very easy to become a member. I'm not sure how reliable checkatrade is for sourcing good tradespeople.
    Originally posted by lincroft1710
    They tend to be better then most of the others as they do, as the name suggests, check all sorts of things such as references, qualifications and accreditations, id checks, insurance as well as actually interviewing the trader.
    • angryparcel
    • By angryparcel 9th Jun 17, 9:36 PM
    • 756 Posts
    • 425 Thanks
    angryparcel
    members of the FMB,
    Originally posted by onyx911
    That means nothing. a few year back my brother had an extension build and the quality of work was shocking.
    The builder was a member of the FMB, so my brother contacted them and the sent out an inspector to have a look ( but inspector is just another builder), he agreed the work was shoddy, so he put report into the FMB who told the builder to return and fix things, he returned once to remove the patio doors to put them in the right way round ( yes he had the inside of the door on the outside) and he never returned to put anything else right. FMB could not force the builder to return
    • Blackbeard of Perranporth
    • By Blackbeard of Perranporth 10th Jun 17, 2:43 PM
    • 4,312 Posts
    • 26,056 Thanks
    Blackbeard of Perranporth
    Don't tell me. Another job done on the cheap and no sign of an architect?
    Last edited by Blackbeard of Perranporth; 10-06-2017 at 3:55 PM.
    Your thoughts fade
    As you shake between the fags
    • bris
    • By bris 10th Jun 17, 3:24 PM
    • 6,624 Posts
    • 5,648 Thanks
    bris
    Out of interest, where is it you think I have breached the contract? There was no completion date and no one has ever suggested a breach on our part so I'm interested.
    Originally posted by onyx911
    When you first entered into the contract you would have given them a rough estimate, i.e "the builder reckons he will be done in around 12 weeks". This is a guide for the kitchen seller.


    When the timescale over that becomes unreasonable then they can or may be able to force your hand by issuing you with a "time is of the essence" letter giving you a deadline. Two years is a significant delay that could easily be considered unreasonable. I never not said they ever suggested you were in breach but that they could have. The seller has been patient with you but your delays have meant a cost increase not of there doing. The below quote was taken from a solicitors website explaining time is of the essence in contracts.


    3. a party who has been subjected to unreasonable delay gives notice to the other party and makes time of the essence.
    • onyx911
    • By onyx911 10th Jun 17, 10:58 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    When you first entered into the contract you would have given them a rough estimate, i.e "the builder reckons he will be done in around 12 weeks". This is a guide for the kitchen seller.


    When the timescale over that becomes unreasonable then they can or may be able to force your hand by issuing you with a "time is of the essence" letter giving you a deadline. Two years is a significant delay that could easily be considered unreasonable. I never not said they ever suggested you were in breach but that they could have. The seller has been patient with you but your delays have meant a cost increase not of there doing. The below quote was taken from a solicitors website explaining time is of the essence in contracts.


    3. a party who has been subjected to unreasonable delay gives notice to the other party and makes time of the essence.
    Originally posted by bris
    Wrong again. I'll never know why people are quick to make assumptions. If original post is too long to read then ask questions. We did not give an estimate of time frame. We had literally just started the extension. The seller said to call them when we were 12 weeks away from kitchen being fitted. If it's not clear from that statement then let me state we were considerably more than 12 weeks away.

    Now that you've mentioned it, it would have been sensible for the seller to tell us to wait until that 12 week mark before taking our order. Definitely makes more sense than taking an order for some time in the foreseeable future.

    Yes the seller would not have expected it to be a year before we were ready to give an estimated completion date but to keep suggesting there was an agreed date is factually incorrect.

    Regarding time is of the essence, there would have to have been a clause in the contract to apply this. Commonly used in new build and construction contracts. My first job after university (many moons ago) was for a National housebuilder. The vast majority of houses back then were bought off plan - (in some cases 2 years or more before completion) When the completion date is not known then a clause is provided for completion to take place on x number of days notice given by the seller. If this date was then not met, either party could serve notice requiring the other to complete. Whenever we served this notice, we stated that time was of the essence.

    This is not something the kitchen seller included in their contract. There was no clause requiring the contract to be completed. Only a clause stating that we can't hold the seller liable for any delays to the delivery or installation of the kitchen.. This goes back to my earlier point about making assumptions.
    Last edited by onyx911; 11-06-2017 at 8:01 AM.
    • onyx911
    • By onyx911 10th Jun 17, 11:04 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    Don't tell me. Another job done on the cheap and no sign of an architect?
    Originally posted by Blackbeard of Perranporth
    I don't know if this was directed at me or the poster above me. In case it was me, no, not done on the cheap. There was an architect and we have plans/ planning permission. There was a structural engineer and plans passed by building control. Original builder wasn't cheap, but he was cheaper than the new builder.
    • GDB2222
    • By GDB2222 11th Jun 17, 9:02 AM
    • 13,839 Posts
    • 73,746 Thanks
    GDB2222
    Wrong again. I'll never know why people are quick to make assumptions. If original post is too long to read then ask questions. We did not give an estimate of time frame. We had literally just started the extension. The seller said to call them when we were 12 weeks away from kitchen being fitted. If it's not clear from that statement then let me state we were considerably more than 12 weeks away.

    Now that you've mentioned it, it would have been sensible for the seller to tell us to wait until that 12 week mark before taking our order. Definitely makes more sense than taking an order for some time in the foreseeable future.

    Yes the seller would not have expected it to be a year before we were ready to give an estimated completion date but to keep suggesting there was an agreed date is factually incorrect.

    Regarding time is of the essence, there would have to have been a clause in the contract to apply this. Commonly used in new build and construction contracts. My first job after university (many moons ago) was for a National housebuilder. The vast majority of houses back then were bought off plan - (in some cases 2 years or more before completion) When the completion date is not known then a clause is provided for completion to take place on x number of days notice given by the seller. If this date was then not met, either party could serve notice requiring the other to complete. Whenever we served this notice, we stated that time was of the essence.

    This is not something the kitchen seller included in their contract. There was no clause requiring the contract to be completed. Only a clause stating that we can't hold the seller liable for any delays to the delivery or installation of the kitchen.. This goes back to my earlier point about making assumptions.
    Originally posted by onyx911
    Obviously, nobody here has seen your contract with the seller. I have assumed that there are contract terms dealing with the situation where there's a prolonged delay, or at least implied terms. You are suggesting that any such terms not in your favour must fall foul of the consumer rights act, but that clearly depends on what is in the details. I would be interested in what your barrister says.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • pinkshoes
    • By pinkshoes 11th Jun 17, 9:12 AM
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    pinkshoes
    Why not just ask the company how much profit they were set to make on this project, and pay that from the deposit then have the rest returned?
    Should've = Should HAVE (not 'of')
    Would've = Would HAVE (not 'of')

    No, I am not perfect, but yes I do judge people on their use of basic English language. If you didn't know the above, then learn it! (If English is your second language, then you are forgiven!)
    • GDB2222
    • By GDB2222 11th Jun 17, 9:15 AM
    • 13,839 Posts
    • 73,746 Thanks
    GDB2222
    Why not just ask the company how much profit they were set to make on this project, and pay that from the deposit then have the rest returned?
    Originally posted by pinkshoes
    You don't think that might be £12000? They have their showroom and salesmen to support, plus a design service sold as a loss leader. I can well imagine there's a 100% markup.
    Last edited by GDB2222; 15-06-2017 at 8:03 AM.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • newwave19
    • By newwave19 15th Jun 17, 1:34 AM
    • 27 Posts
    • 3 Thanks
    newwave19
    i would be very careful with this one as the retailer hasn't done anything wrong. From what I read, you paid a deposit, but didn't actually place an order at that time ("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."). Correct me if i'm wrong though.
    Secondly, the time scale isn't on your side. Even if you did order it, and it had of been delivered to the retailer, do you think its reasonable to have it left in they're store for over a year.
    If you do go down the legal route though, just remember that you might get hit with more than just your own legal fees.
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