Section 75 Assistance

DMorgan71

Dear Forum
Just before Christmas I purchased a crosstrainer from Fitness Superstore, Nottingham; it cost £2,299 and included free installation. On installation there were issues with a loud grating noise with the right footplate and on my second use, it became unsafe to use. I completed an online service request and an engineer came to rectify the problem. He mentioned that it had not been installed correctly in the first place.
After repair another grating noise became apparent, this time on the left hand side, along with a resistance issue. Again I logged an online service request. Once again the engineers came to repair. On completing the electronic paperwork I requested for a manager to call, as I was unhappy with not having had a fully functioning machine since purchase; no-one did.
After the second repair the resistance issue became worse, along with another knocking noise. Again I logged another online service request and I also repeatedly tried to speak to a senior manager to discuss matters, but each time I was told that they "were in a meeting" and that someone would "call me back".
I finally managed to speak to someone and said that due to all the issues and not having had a fully functioning machine since purchase in December that I wanted a full refund. They said they would need to speak to their manager. They arranged for the crosstrainer to be taken back to their depot to be tested. When the engineers dismantled it, they remarked how tight the fittings were and again that it had not been installed correctly. Once again I requested someone to call me on completing the electronic paperwork.
No-one called me to discuss matters. I then received an email stating that they had resolved the noise issue, which was due to "the floor levellers not set up correctly". However, they stated that the resistance issue was due to "user error".
I tried to address this, having used crosstrainers (different makes and models) over the years; again no-one would return my call.
I then approached Sainsburys Bank, as I had made my purchase with a credit card, after having read the pages on this website about Section 75 Rights. I sent all details (18 supporting emails) to their disputes team. They then wrote to Fitness Superstore.
I have just received a letter from Sainsburys Bank stating (not surprisingly) that Fitness Superstore responded that they were not in breach of the Consumer Act, reiterating that it was due to the floor levellers not having been set up correctly.
Sainsburys Bank have not fully read my dispute and taken notice of the fact that there have been three separate issues with installation and that the price paid included free installation (along with annual servicing and warranty of parts) and I have never had a fully functioning machine.
I am disappointed with Sainsburys Bank as they are not protecting me as a consumer. In terms of Fitness Superstore I would strongly urge anyone reading this not to use that company, as their customer care is shocking.
The reason for my post is that I would like some guidance as to what to do next, since Sainsburys Bank are stating that I need to provide evidence that Fitness Superstore are in breach. What more can I do, as I cannot afford to let this matter drop?
Many thanks in advance
Debbie

wealdroam

DMorgan71 wrote: »

Dear Forum
Just before Christmas I purchased a crosstrainer from Fitness Superstore, Nottingham; it cost £2,299 and included free installation. On installation there were issues with a loud grating noise with the right footplate and on my second use, it became unsafe to use. I completed an online service request and an engineer came to rectify the problem. He mentioned that it had not been installed correctly in the first place.
After repair another grating noise became apparent, this time on the left hand side, along with a resistance issue. Again I logged an online service request. Once again the engineers came to repair. On completing the electronic paperwork I requested for a manager to call, as I was unhappy with not having had a fully functioning machine since purchase; no-one did.
After the second repair the resistance issue became worse, along with another knocking noise. Again I logged another online service request and I also repeatedly tried to speak to a senior manager to discuss matters, but each time I was told that they "were in a meeting" and that someone would "call me back".
I finally managed to speak to someone and said that due to all the issues and not having had a fully functioning machine since purchase in December that I wanted a full refund. They said they would need to speak to their manager. They arranged for the crosstrainer to be taken back to their depot to be tested. When the engineers dismantled it, they remarked how tight the fittings were and again that it had not been installed correctly. Once again I requested someone to call me on completing the electronic paperwork.
No-one called me to discuss matters. I then received an email stating that they had resolved the noise issue, which was due to "the floor levellers not set up correctly". However, they stated that the resistance issue was due to "user error".
I tried to address this, having used crosstrainers (different makes and models) over the years; again no-one would return my call.
I then approached Sainsburys Bank, as I had made my purchase with a credit card, after having read the pages on this website about Section 75 Rights. I sent all details (18 supporting emails) to their disputes team. They then wrote to Fitness Superstore.
I have just received a letter from Sainsburys Bank stating (not surprisingly) that Fitness Superstore responded that they were not in breach of the Consumer Act, reiterating that it was due to the floor levellers not having been set up correctly.
Sainsburys Bank have not fully read my dispute and taken notice of the fact that there have been three separate issues with installation and that the price paid included free installation (along with annual servicing and warranty of parts) and I have never had a fully functioning machine.
I am disappointed with Sainsburys Bank as they are not protecting me as a consumer. In terms of Fitness Superstore I would strongly urge anyone reading this not to use that company, as their customer care is shocking.
The reason for my post is that I would like some guidance as to what to do next, since Sainsburys Bank are stating that I need to provide evidence that Fitness Superstore are in breach. What more can I do, as I cannot afford to let this matter drop?
Many thanks in advance
Debbie

When exactly did you take delivery of this thing?
During the first six months following that date, any fault can be assumed to have been present at the time of sale and it is for the seller, or the credit card company, to prove otherwise.

In other words, during that first six months you do not have to prove breach of contract, it is for the seller, or the CC Co under S75, to prove that no breach has taken place.

If your bank still cannot see that, then maybe you should approach The Financial Ombudsman Service.

DMorgan71

Thanks for the advice. It was ordered and paid for on 13/12/16 and installed on 24/12/15. The first issue was logged on 29/12/15, then repaired on 06/01/16. Second one logged in January and repaired on 19/02/16. Third one logged in February and finally taken away on 15/04/16.

naedanger

wealdroam wrote: »

If you believe your bank have not handled your claim correctly, then maybe you should approach The Financial Ombudsman Service.

To the op:

I echo the above suggestion.

Send Sainsbury's a written complaint explaining why you are unhappy with the way they (Sainsburys) have handled your complaint. (Point out that the issue arose within 6 months of purchase. Ask them what exactly they require further from you - make clear you are willing to have them inspect the item if they wish.)

Head your complaint as a "formal complaint" and ask for a copy of their complaint procedure. Be sure to follow that procedure as you can only go to the Financial Ombudsman Service once Sainsbury's have stated the complaint has reached deadlock or 8 weeks (I think) from your initial complaint to Sainsburys if sooner.

wealdroam

Specifically, it is Section 19 of The Consumer Rights Act 2015, subsection (14) which says:

(14) For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

The Consumer Rights Act Explanatory Notes, note 97, put it in perhaps more easily understood terms:

97. Subsections (14) and (15) provide that, if a breach of the statutory rights – for example a fault - arises in the first 6 months from delivery, it is presumed to have been present at the time of delivery unless the trader proves otherwise or this presumption is incompatible with the nature of the goods or the particular breach or fault.

The trader saying "it is a user error" may be a stumbling block, but is not the trader 'proving otherwise' - in my opinion.

bris

wealdroam wrote: »

The trader saying "it is a user error" may be a stumbling block, but is not the trader 'proving otherwise' - in my opinion.

That's exactly what it is, the trader took it away and had their engineers examine it and discovered user error, that's exactly what proving otherwise is or what would you say that statement means if it's not proving otherwise? The onus is now on the OP to prove them wrong.


S75 is not a money back guarantee, it places the same liabilities on the card holder for breach of contract. With the report they now have they are saying there is no breach so aren't just going to refund.

naedanger

bris wrote: »

That's exactly what it is, the trader took it away and had their engineers examine it and discovered user error, that's exactly what proving otherwise is or what would you say that statement means if it's not proving otherwise?

It is not necessarily proving otherwise. The person judging the merits of the complaint (e.g. the Financial Ombudsman Service if it gets that far) will need to read the report and decide whether what it says (along with any other evidence) proves the fault was user error or not. If it simply says "user error" with no explanation of what error was, and how it accounts for the fault, then I hope the report would not be regarded as sufficient. (On the other hand the manufacturer's engineers may have provided a very convincing explanation of how the fault was caused by user error.)

The onus is now on the OP to prove them wrong.

Not necessarily - it depends on whether the manufacturer's assessment that the fault was caused by user error proves their case. The op may be satisfied that it does not.

S75 is not a money back guarantee, it places the same liabilities on the card holder for breach of contract.

Agreed. But the op can pursue the credit card company rather than the retailer.

With the report they now have they are saying there is no breach so aren't just going to refund.

The op may dispute that user error has been proved. In which case they can complain to the credit card company that the credit card company is refusing to settle a valid complaint. If the cc company disagrees the op can ultimately complain to the Financial Ombudsman Service. They will then decide whether or not the credit card company (and the retailer and manufacturer) did prove the fault was user error.

PS To the op: Even if the Financial Ombudsman Service rules against you, you can still then pursue legal action (at some cost). However if you start legal action before FOS has finalised their ruling then FOS will immediately withdraw and offer no help.

DMorgan71

Thanks for clarifying. My main issue with the fitness company is that since purchase there have been three separate installation faults with the machine and at no point did I have a fully functioning machine; the price included their installation. The company has no substantiating proof that it was "user error" only what they have said in a brief email to me; furthermore, it will have been undertaken by the same engineers who could not detect previous faults until I highlighted the issues to them.
Agree that it is for me now to take forward with the credit card company and will write a complaint letter to them. If that gets no where then will follow up with the FOS.

bris

naedanger wrote: »

Not necessarily - it depends on whether the manufacturer's assessment that the fault was caused by user error proves their case. The op may be satisfied that it does not.



Agreed. But the op can pursue the credit card company rather than the retailer.

Of course the OP doesn't agree with it but they need proof to counter it.


They can pursue the CC co all they want and in case you missed it they already have and been rejected because they have the vendors report. But the same thing applies, they have their report from the vendor, unless the OP produces something to counter it they will not budge.


The FOS will take the same stance, it's all about proof, they have theirs, the OP will get no where without producing theirs.


There is also one other thing to take into consideration, their is no breach of contract anyway. The right to reject it is past and as the vendor is actually fixing it then they are doing what they need to do and repairing it so breach, this seems to have been skipped over.

naedanger

bris wrote: »

Of course the OP doesn't agree with it but they need proof to counter it.


They can pursue the CC co all they want and in case you missed it they already have and been rejected because they have the vendors report. But the same thing applies, they have their report from the vendor, unless the OP produces something to counter it they will not budge.


The FOS will take the same stance, it's all about proof, they have theirs, the OP will get no where without producing theirs.


There is also one other thing to take into consideration, their is no breach of contract anyway. The right to reject it is past and as the vendor is actually fixing it then they are doing what they need to do and repairing it so breach, this seems to have been skipped over.

To the op:

I suggest you do not let the above discourage you from pursuing your complaint as you are doing.

I would wait for the credit card company's response to your formal complaint before deciding what, if anything, you need to do further.

Fergie76

Do you have a copy of their engineers report which actual details what the user error is?