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Consumer Rights Act - Are We Covered?
Davesnave
Posts: 34,741 Forumite
Here’s a long one for you.:o (Pictures in an even longer one below!)
In January 2016, we negotiated to buy a large conservatory from a local firm. It was agreed we’d erect the walls and they’d provide the superstructure. As usual, we had the14 day cooling-off period and the contract stipulated a 30% of total cost penalty for cancellation after that.
A few days after the salesman’s home visit, initiated by us, a manager phoned us to say a box gutter would need to be fabricated to connect the conservatory to the house and that would cost an extra £1k. As we felt the overall price was still OK, we agreed to pay the extra.
Shortly before the surveyor’s visit in February, some design drawings were sent to us. They weren’t entirely correct, but we didn’t expect them to be. The measurements were to 3 decimal places or in mm and, significantly, a 10 degree roof pitch was shown in words and in the diagrams. The words “For illustration purposes only” didn’t bother us as no survey had been done.
The survey took place and promises about the box gutter giving us sufficient pitch were made verbally to a relative with building experience. He understood it would be bespoke, especially as we’d agreed to pay 1K for it.
We did prep work during the summer, refurbishing the roof above, building new foundations, walls and diverting drains etc, so it was September before the surveyor returned to make the final checks and calculations. He found nothing amiss with our construction work.
Our next communication from the surveyor was simply more of the small, inaccurate drawings like those we’d received previously, with the same caveat, but this time the roof pitch was written as 10 – 11.5 degrees. We complained, but were told that this was the best their software could do, so we wondered how they could possibly make the thing!
As the drawings contained more errors, I enlarged one and returned it to the surveyor, annotated, just to sort out basic inaccuracies like walls and windows being pictured wrongly. It took a couple of goes and it was never quite right. All this is covered in this thread: (warning: quite long)
https://forums.moneysavingexpert.com/discussion/5569186
We therefore never received a scaleable set of drawings. Indeed, things were so bad communication-wise, we’d have pulled out, but for that penalty clause.
Fast forward to December when the conservatory was erected. As the roof went on, it was clear that the pitch was nowhere near 10 -11.5 degrees; it was only 5 degrees. This meant that the self-clean glass would not do its thing and large amounts of water just sat at the bottom of the roof lights and wouldn’t go away. Being at 500’ in a windy place, we were not happy with such a low pitch anyway.
Subsequent investigations showed us that the box gutter was installed dangerously, in contravention of the manufacturer’s instructions, but although this is a serious matter in itself, it’s not the main subject of this query. It wasn’t the bespoke job we’d have needed to get more pitch, just an off the shelf kit part, albeit a big one, like the rest of the roof. That’s significant.
When we realised the conservatory roof was not as expected, we stopped further work on it and entered negotiations with the firm’s surveyor. When he wrote to say that he’d made his decision re the roof pitch and it was ‘non-negotiable,’ we wrote to the firm’s MD rejecting the conservatory as built, as we felt we’d been misled.
The MD has now replied, reiterating that the roof is ‘well within tolerances,’ which I think means it was designed by their suppliers and meets their in-house criteria. In other words, he won’t accept our claim that we should have the conservatory they told us they were building, as the magic words “For illustration purposes only” are on the only details supplied to us.
Naturally enough, we feel that the Consumer Protection Act may allow us to rely on these drawings and the measurements recorded thereon, simply because they are all we were given.
We also had verbal assurances that a bespoke gutter would solve the problem of low eaves, but this didn’t happen. We got an off the shelf product.
Consumer legislation requires people like the surveyor to use ‘appropriate care and skill.’ Surely, if he had done that after his full survey in September, he would not have sent out drawings at such a late stage with such inaccurate measurements on them?
Obviously, at some point he realised that 10 degrees was not possible with the cheaper gutter he planned to use, but he chose not to tell us, so we were unable to explore other solutions.
Sorry this is so long. I know I can’t possibly head-off all questions people are likely to ask but mine is simple:
Have we been misled in the legal sense and has the surveyor used appropriate care and skill?
We have to decide where this goes next…..
In January 2016, we negotiated to buy a large conservatory from a local firm. It was agreed we’d erect the walls and they’d provide the superstructure. As usual, we had the14 day cooling-off period and the contract stipulated a 30% of total cost penalty for cancellation after that.
A few days after the salesman’s home visit, initiated by us, a manager phoned us to say a box gutter would need to be fabricated to connect the conservatory to the house and that would cost an extra £1k. As we felt the overall price was still OK, we agreed to pay the extra.
Shortly before the surveyor’s visit in February, some design drawings were sent to us. They weren’t entirely correct, but we didn’t expect them to be. The measurements were to 3 decimal places or in mm and, significantly, a 10 degree roof pitch was shown in words and in the diagrams. The words “For illustration purposes only” didn’t bother us as no survey had been done.
The survey took place and promises about the box gutter giving us sufficient pitch were made verbally to a relative with building experience. He understood it would be bespoke, especially as we’d agreed to pay 1K for it.
We did prep work during the summer, refurbishing the roof above, building new foundations, walls and diverting drains etc, so it was September before the surveyor returned to make the final checks and calculations. He found nothing amiss with our construction work.
Our next communication from the surveyor was simply more of the small, inaccurate drawings like those we’d received previously, with the same caveat, but this time the roof pitch was written as 10 – 11.5 degrees. We complained, but were told that this was the best their software could do, so we wondered how they could possibly make the thing!
As the drawings contained more errors, I enlarged one and returned it to the surveyor, annotated, just to sort out basic inaccuracies like walls and windows being pictured wrongly. It took a couple of goes and it was never quite right. All this is covered in this thread: (warning: quite long)
https://forums.moneysavingexpert.com/discussion/5569186
We therefore never received a scaleable set of drawings. Indeed, things were so bad communication-wise, we’d have pulled out, but for that penalty clause.
Fast forward to December when the conservatory was erected. As the roof went on, it was clear that the pitch was nowhere near 10 -11.5 degrees; it was only 5 degrees. This meant that the self-clean glass would not do its thing and large amounts of water just sat at the bottom of the roof lights and wouldn’t go away. Being at 500’ in a windy place, we were not happy with such a low pitch anyway.
Subsequent investigations showed us that the box gutter was installed dangerously, in contravention of the manufacturer’s instructions, but although this is a serious matter in itself, it’s not the main subject of this query. It wasn’t the bespoke job we’d have needed to get more pitch, just an off the shelf kit part, albeit a big one, like the rest of the roof. That’s significant.
When we realised the conservatory roof was not as expected, we stopped further work on it and entered negotiations with the firm’s surveyor. When he wrote to say that he’d made his decision re the roof pitch and it was ‘non-negotiable,’ we wrote to the firm’s MD rejecting the conservatory as built, as we felt we’d been misled.
The MD has now replied, reiterating that the roof is ‘well within tolerances,’ which I think means it was designed by their suppliers and meets their in-house criteria. In other words, he won’t accept our claim that we should have the conservatory they told us they were building, as the magic words “For illustration purposes only” are on the only details supplied to us.
Naturally enough, we feel that the Consumer Protection Act may allow us to rely on these drawings and the measurements recorded thereon, simply because they are all we were given.
We also had verbal assurances that a bespoke gutter would solve the problem of low eaves, but this didn’t happen. We got an off the shelf product.
Consumer legislation requires people like the surveyor to use ‘appropriate care and skill.’ Surely, if he had done that after his full survey in September, he would not have sent out drawings at such a late stage with such inaccurate measurements on them?
Obviously, at some point he realised that 10 degrees was not possible with the cheaper gutter he planned to use, but he chose not to tell us, so we were unable to explore other solutions.
Sorry this is so long. I know I can’t possibly head-off all questions people are likely to ask but mine is simple:
Have we been misled in the legal sense and has the surveyor used appropriate care and skill?
We have to decide where this goes next…..
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Comments
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I would be getting an independent specialist to write a report stating that the pitch is insufficient etc... and use this as leverage to get the modifications made.
If they do not play ball, then you could be looking st small claims court.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!)0 -
I would be getting an independent specialist to write a report stating that the pitch is insufficient etc... and use this as leverage to get the modifications made.
If they do not play ball, then you could be looking st small claims court.
Thanks, if we have to stay with this crew, we will be having whatever is finally built inspected independently.
Two points of clarification:
We could probably go to the Glass & Glazing Federation now for dispute mediation, but there is no guarantee that they'll do any more than confirm that the manufacturer's guidelines have been met, as the roof vents are deemed "acceptable" at 5 degrees and up.
And who deems them acceptable? Oh yes, the people who supply the conservatory companies. There is no independent British Standard etc.
This is why we want to use national legislation, if we can. It will trump (sorry!) the industry regulators' decisions
We have only paid a deposit of £500. One of the salesman's key points was that, "you don't pay any more till you're satisfied." We're testing this.0 -
In legal terms, you need to work out whether you have a contract for "goods" or a contract for "services".Have we been misled in the legal sense and has the surveyor used appropriate care and skill?
If you have a contract for "goods", Chapter 2 of the Consumer Rights Act applies, and the conservatory would need to be "satisfactory quality".
If you have a contract for "services", Chapter 4 of the Consumer Rights Act applies, and the seller has to use reasonable care and skill.
Correct me if you think I'm wrong, but it sounds to me like you have a contract for "goods". It sounds like you had a contract for a whole conservatory, not a separate contract for surveying. In that case the seller is not under an obligation to use reasonable care and skill, but does have to make sure the conservatory is satisfactory quality.
There are two other legal avenues you could use:
1) You could say the conservatory company is in breach of contract, if you were not given what was promised.
2) You could say the conservatory company made a pre-contractual misrepresentation, if it told you things which weren't true to get you to sign up to the contract.
If you were promised a roof with about a 10'' pitch, and you got one with a 5'' pitch, and what you got is different to what you asked for, then it sounds like you do have a claim.
If you think you can fit your experience into either of those two headings, or if the conservatory is not satisfactory quality (having regards to what was promised to you), then you may have a legal claim. You could set that out in a formal letter to the company and see if you can use it to negotiate a better result.
This sounds like a very sensible idea and would definitely help the Op negotiate. I just want to point out that this type of report is unlikely to be permitted to be used as evidence in small claims proceedings, if it came to that.I would be getting an independent specialist to write a report stating that the pitch is insufficient etc... and use this as leverage to get the modifications made.
If they do not play ball, then you could be looking st small claims court.
You need the court's permission to use an expert report, and the expert would usually need to be jointly appointed by both parties. That rule is in place as it prevents the Op from shopping around for an expert who gives him the result he wants to hear.0 -
This is why we want to use national legislation, if we can. It will trump (sorry!) the industry regulators' decisions.
National legislation is quite general, as there are thousands of situations in which sale of goods law might be engaged.
The key thing is to look at your paperwork to work out what you were actually promised. To take this further I think you will need to be able to point to something specific that you were promised but was not delivered.
Have a read of http://www.legislation.gov.uk/ukpga/2015/15/section/9. Note that the legislation hinges on the description of the goods you were given and any statements made by the trader.0 -
Hi,steampowered wrote: »In legal terms, you need to work out whether you have a contract for "goods" or a contract for "services".
If you have a contract for "goods", Chapter 2 of the Consumer Rights Act applies, and the conservatory would need to be "satisfactory quality".
If you have a contract for "services", Chapter 4 of the Consumer Rights Act applies, and the seller has to use reasonable care and skill.
Correct me if you think I'm wrong, but it sounds to me like you have a contract for "goods"
I think I have to pursue this as a service, not because I'm some kind of legal genius , but because 'Which?' say so:
Supply of a service
The term 'service' covers a wide variety of services including large and small-scale work you might have carried out in your home or elsewhere.
From a small repair job on a vehicle with no written details or the installation of solar panels to a haircut or major building work, all these require you to enter into a contract.
Services can be provided alone or they may be provided with goods, for example, the fitting of a new kitchen.
What I'm trying to get my head around at present is whether the contract was fair. This required me to sign up to something with the right to reject within 14 days, but nothing in the way of a proper drawing of that something was provided within the time limit, only some small 3D representations and measurements marked "For illustration purposes only."
Being reasonable, I didn't expect accurate drawings before a surveyor's visit, but no plans were subsequently provided that I could rely on, despite several attempts by me to obtain them.
I therefore conclude that I had to rely on what I was shown, which was not what was built.
Having had 2 visits from the surveyor by September, I think it was reasonable for me to expect a set of accurate drawings by then, prior to making final decisions. He wouldn't or couldn't supply them, so what was I to do? If I cancelled the contract then, as I felt like doing, I laid myself open to a breach claim from them of over £4k.0 -
Whether something is characterised as a contract for services or a contract for goods depends on which is the dominant/most expensive part.Hi,
I think I have to pursue this as a service, not because I'm some kind of legal genius , but because 'Which?' say so:
Supply of a service
The term 'service' covers a wide variety of services including large and small-scale work you might have carried out in your home or elsewhere.
From a small repair job on a vehicle with no written details or the installation of solar panels to a haircut or major building work, all these require you to enter into a contract.
Services can be provided alone or they may be provided with goods, for example, the fitting of a new kitchen.
Do you think the main/most expensive part of your contract was the goods/materials used to make your conservatory; or the installation of the conservatory?What I'm trying to get my head around at present is whether the contract was fair. This required me to sign up to something with the right to reject within 14 days, but nothing in the way of a proper drawing of that something was provided within the time limit, only some small 3D representations and measurements marked "For illustration purposes only."
Unfair terms law looks at specific terms in contracts, not the entire contract. You can't really have an entire contract that is unfair, only specific terms in that contract.
The effect of an unfair term is that it the unfair term is not binding on the consumer, but the rest of the contract remains in effect. See http://www.legislation.gov.uk/uksi/1999/2083/regulation/8/made.
In order for this to be a runner you'd have to identify a specific term of your contract which was not fair.
It sounds like you are out of time to cancel the contract, so the point about a 14 day cancellation period doesn't sound like a runner to me. Better to focus on whether the trader is in breach of contract - i.e. identify exactly what it is that they promised but didn't deliver.0 -
I would also have a read of the Consumer Protection from Unfair Trading Regulations - especially the section on 'misleading actions'. http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/5
Although you said it says 'illustration purposes only' on the drawings, you've then said you went back and queried the angle and were told it was the best the software could do. I don't think a factor of two difference can be called 'illustration purposes'. And irrespective of the drawings, this correspondence could prove key - if they've stated the angle will be 10-11.5 degrees, then that's part of what they've sold you.0 -
ThumbRemote wrote: »I would also have a read of the Consumer Protection from Unfair Trading Regulations - especially the section on 'misleading actions'. http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/5
Although you said it says 'illustration purposes only' on the drawings, you've then said you went back and queried the angle and were told it was the best the software could do. I don't think a factor of two difference can be called 'illustration purposes'. And irrespective of the drawings, this correspondence could prove key - if they've stated the angle will be 10-11.5 degrees, then that's part of what they've sold you.
Thank you. That is very helpful. This is goes to the heart of our dissatisfaction; that a company can produce figures/diagrams that are so wrong, yet deny any responsibility for this.
When we received the second set of drawings, after final survey, we became concerned at the general inaccuracy of the surveyor's submissions and fearful that something would go wrong.
It seemed unreasonable that no definitive scale plan was being supplied and that we appeared to be buying a 'pig in a poke.' We complained to the person who originally sold us the conservatory and the installations manager, but with hindsight, we should have gone higher. There were no contact details for the MD.
At that point nothing had been manufactured, and if there was a problem getting close to the spec shown on the drawings, we weren't made party to it. The surveyor has since written to us, proudly stating that he "rarely involves customers in decision-making."
We feel sure that his decision at that point was entirely cost-driven. A bespoke box gutter would have achieved the correct angle, but he had only budgeted for something off the shelf, and we can prove that he'd not even made the correct preparations for installing that. Our builder offered to do them and was brushed aside.
The surveyor has now admitted that the installation of the gutter, a major structural component, was shoddy and contrary to the manufacturer's instructions
We agree that figures being out by a factor of two is not an illustration of anything, except the originator's incompetence. They may as well have written, "Here is our back of a fag packet rough estimate of what you might receive, if you're lucky."0
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