Section 75 - advice needed for house build

the_lunatic_is_in_my_head

RefluentBeans said:

Regardless of if they pay for the fitting or not, if the windows need replacing and the issue is the fitting, and the fitting is less than the cost of the windows, then I don’t see how that helps. The OP would be caught between the supplier and the fitter. S75 isn’t insurance and so the OP hasn’t got a lot of recourse if the bank decide that the issue is actually the fitting. 

S75 places the same liability upon the credit provider as it does the trader, which part of the Act are you referring to to stipulate the value of the transaction is the limit of the credit providers liability?

If bad fitting requires a remedy costing more than the fee for fitting this is direct damages, happy to be corrected with a quote from the legislation but it’s my firm understanding S75 covers the complete liability for loss as a result of breach of contract.

Pay for a window fitting service on credit and you are covered for any issues with fitting, pay for the windows with the same credit provider and either way they are on the hook.

We had a recent thread where the bank was paying out to remove spray foam insulation under S75 as an example.

RefluentBeans said:

Equally, we don’t know, for certain, if this is covered under S75. The bank could deem that this isn’t a B2C transaction (if the terms make it clear the seller only deals to businesses, and the OP has vouched saying that they are a business). In that case, where the consumer chooses to give up their rights (not where it’s buried deep in the terms as a ‘gotcha’), then I think that is kind of out of luck. 

A consumer can’t choose to give up their rights, it’s simply not an option. 

Yes someone can lie to get a trade account. 

However I’m not sure where this assumption the OP has been lying through their teeth to get a trade account has come from, or even that the window company are trade only? 

To be blunt until OP says otherwise we are in the fiction section with this aspect  

RefluentBeans said:

By splitting the order up, and keeping it below £30k to benefit from this may be constitued as malicious, and potentially make the claim more likely to be considered sketchy. It may be fine, it may not be. But it adds, at the very least, complexity to the situation. 

As I said I don’t think OP needs to split the orders and mess about, they just need an itemised invoice.

That is subject to:

born_again said:

Yes. That is a fair judgement. All depends on just what Op S75 claim would be for. 

If the CC gets wind that this is a house build, then they will take the view of the total value of the build.
You have to remember if this is a CC that is part of a bank that someone has their account with. They will check ALL accounts.

Not sure on what FOS take would be on this, but have seen S75 turned down on the basis that it has been treated as a whole build, rather than each separate invoice. 

This is one of these cases where people seem to think that S75 is like a form of insurance & a general cover all, which it is not.

Given the OP is talking about part CC & part bank payments. This will come out in the wash & I do see their idea on S75 unravelling & leading to a possible world of pain. Due to misrepresenting of the claim.
Hence that they would be better speaking to card providers in the 1st place.

Thanks @born_again

So if you just have new windows replaced on your home basically you are buying x windows but if you are building a whole home (or I guess the same applies to an extension) the bank will likely view the “item” as the building rather than the separate aspects and, unless the FOS or a court decide otherwise, relying on S75 won’t help and a purchaser would have to revert to their chances under S75A instead. 

I’m sure you said before a suit would be classed as one item which follows the same principle.

RefluentBeans

the_lunatic_is_in_my_head said:

RefluentBeans said:

Regardless of if they pay for the fitting or not, if the windows need replacing and the issue is the fitting, and the fitting is less than the cost of the windows, then I don’t see how that helps. The OP would be caught between the supplier and the fitter. S75 isn’t insurance and so the OP hasn’t got a lot of recourse if the bank decide that the issue is actually the fitting. 

S75 places the same liability upon the credit provider as it does the trader, which part of the Act are you referring to to stipulate the value of the transaction is the limit of the credit providers liability?

If bad fitting requires a remedy costing more than the fee for fitting this is direct damages, happy to be corrected with a quote from the legislation but it’s my firm understanding S75 covers the complete liability for loss as a result of breach of contract.

Pay for a window fitting service on credit and you are covered for any issues with fitting, pay for the windows with the same credit provider and either way they are on the hook.

We had a recent thread where the bank was paying out to remove spray foam insulation under S75 as an example.

RefluentBeans said:

Equally, we don’t know, for certain, if this is covered under S75. The bank could deem that this isn’t a B2C transaction (if the terms make it clear the seller only deals to businesses, and the OP has vouched saying that they are a business). In that case, where the consumer chooses to give up their rights (not where it’s buried deep in the terms as a ‘gotcha’), then I think that is kind of out of luck. 

A consumer can’t choose to give up their rights, it’s simply not an option. 

Yes someone can lie to get a trade account. 

However I’m not sure where this assumption the OP has been lying through their teeth to get a trade account has come from, or even that the window company are trade only? 

To be blunt until OP says otherwise we are in the fiction section with this aspect  

RefluentBeans said:

By splitting the order up, and keeping it below £30k to benefit from this may be constitued as malicious, and potentially make the claim more likely to be considered sketchy. It may be fine, it may not be. But it adds, at the very least, complexity to the situation. 

As I said I don’t think OP needs to split the orders and mess about, they just need an itemised invoice.

That is subject to:

born_again said:

Yes. That is a fair judgement. All depends on just what Op S75 claim would be for. 

If the CC gets wind that this is a house build, then they will take the view of the total value of the build.
You have to remember if this is a CC that is part of a bank that someone has their account with. They will check ALL accounts.

Not sure on what FOS take would be on this, but have seen S75 turned down on the basis that it has been treated as a whole build, rather than each separate invoice. 

This is one of these cases where people seem to think that S75 is like a form of insurance & a general cover all, which it is not.

Given the OP is talking about part CC & part bank payments. This will come out in the wash & I do see their idea on S75 unravelling & leading to a possible world of pain. Due to misrepresenting of the claim.
Hence that they would be better speaking to card providers in the 1st place.

Thanks @born_again

So if you just have new windows replaced on your home basically you are buying x windows but if you are building a whole home (or I guess the same applies to an extension) the bank will likely view the “item” as the building rather than the separate aspects and, unless the FOS or a court decide otherwise, relying on S75 won’t help and a purchaser would have to revert to their chances under S75A instead. 

I’m sure you said before a suit would be classed as one item which follows the same principle.

I think the assumption that most places that manufacture glass panels will only sell to trade is not an uncommon one. It is odd that someone wants to buy the windows and do the fitting through someone else. Understandably, most of these places that make glass panels will only want to sell to trade and professionals because dealing with direct to consumers opens up a load of other issues and can throw costings out (when they have other legal obligations they do not have with tradespersons). I do think the term ‘we only sell to tradespersons, and so by ordering and ticking this box you confirm you are purchasing as a tradesperson’ is not an unfair one. It doesn’t limit the consumers rights, as by definition they are not a consumer in this transaction. I agree, though, that if this is buried in the terms of sale/terms and conditions then it is an unfair term.

S75 does place the same liability as the retailer/fitter. But that also means that the bank can reject on the same basis. My argument is that it’s a far simpler case to make if the same entity provides and fits the windows. Take for example if the wrong type of frame is ordered. The OP, presumably, isn’t a window fitter. If there’s a case that the OP needs a specific type of window, but they have ordered the wrong one, S75 would not cover this for either the fitting or the supply of the windows - the OP chose the windows, and paid for an installation. You could try and make the argument that the window fitters should have rejected the job because it’s the wrong windows, but if they’re just fitting the windows and not inspecting the windows to order them, they meet the criteria of acting with skill by just fitting them. So the OP has no claim against the manufacturer - the windows aren’t faulty - they just aren’t suitable for this situation. And the fitters weren’t asked to do a survey before - they just fitted the windows. So the claim, rightly, in this case; would be rejected. This would be easier to claim against if the same company handled the supply and fitting. The company would order it and fit it; so if they’re wrong then that is due to the company. So a S75 claim would be more likely to be successful. 

Like I said in my first post, and reiterated from others, the whole splitting of payments is weird. If it’s protection the OP wants, then there’s easier ways to go about it. And by ‘massaging the numbers’ it gives off some ill-intent; even if there’s none there. At the very best it would make any S75 claim take a while to process to ensure that the OP isn’t trying to pull a fast one (and i assume the OP is just trying to get the protection from S75; not doing anything nefarious); or at worst it’ll be rejected and will have to go through a more lengthy process to enforce.

If the OP goes through with ordering and fitting separately, then one of three things will be the case:
1. The windows are itemised / like you say, and so each window will be above £100, and below £30k and so get standard S75 coverage - no need to split up orders. 

2. The windows are not itemised and by splitting the cost; it could be interpreted as trying to get protection that you’re not entitled to, and rejected, 
3. The S75 claim will be rejected in any case because of one of the reasons mentioned above (not being a B2C contract, the payment processor breaking the chain etc). 

Ultimately if the OP feels they are entitled to S75 protection then they should just have one invoice for it. If they are choosing to split it up, then it looks like they are acknowledging they aren’t entitled to the protection and the banks may just reject because of that. That may, or may not, be the ‘right’ decision but would require work to appeal. I still think the simplest way to get added protection is by having a reputable company measure, supply, and fit the windows. 

the_lunatic_is_in_my_head

RefluentBeans said:

I think the assumption that most places that manufacture glass panels will only sell to trade is not an uncommon one. It is odd that someone wants to buy the windows and do the fitting through someone else. 

If you are replacing the windows in your 3 bed semi then yes I agree but some people have money to spend on quality goods and, it's a cliché but, money talks and £45k is a fair sum for a business to turn down.

No different in walking into a trade only place and saying I want to buy a £5k kitchen and getting turned away but walk into the same place and say I want to buy a £100k kitchen and the business may well decide the profit justifies dealing with a consumer.

However they can't have it both ways and deal with consumers but contract out their rights by claiming the be trade only. 

RefluentBeans said:.

 I do think the term ‘we only sell to tradespersons, and so by ordering and ticking this box you confirm you are purchasing as a tradesperson’ is not an unfair one. It doesn’t limit the consumers rights, as by definition they are not a consumer in this transaction. I agree, though, that if this is buried in the terms of sale/terms and conditions then it is an unfair term.

A consumer is an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.

That's a statement of fact, ether you are or your aren't. If you are the CRA covers liability that cannot be excluded or restricted

https://www.legislation.gov.uk/ukpga/2015/15/section/31

It's a fundamental principle that consumer rights can not be contract out and the CRA clearly lays this out.

The CJEU has recognised that trader's are the expert in their field and consumer rights create balance against this, as I've said if some says "yes I'm a business, here's all my paperwork" that's different.

I don't see how any business could think or believe their customer is a business when that consumer is asking them about S75 cover for consumers. 

Ultimately the whole "trade only" thing is a red herring unless someone is going to lie, if they are going to lie that's on them and they'll suffer the consequences but until a poster says they are going to lie I don't think it's fair to assume they will  

RefluentBeans said:Take for example if the wrong type of frame is ordered. 

Yes if you need an alternator for your Ford and buy one for a Toyota to give to the garage that's your problem and such is also true if you order the wrong windows as your own mistakes aren't a breach of contract, making a mistake by ordering in this way is a risk for the individual to gamble on, a personal choice that doesn't have anything to do with consumer rights.  

If however the windows do not conform or the fitting does not confirm that is a breach of contract and liability is equally placed on the credit provider for either goods or services.*

OP hasn't grabbed a tape measure and gone "yeah my windows are about that size " instead they are building a house, they have plans and an architect, indeed if OP paid for the architect via credit they'd have S75 cover for the architect's breach of contract as well, should such occur.*

*Both subject to the caveat born_again has mentioned regarding the build itself being the "item".

Grumpy_chap

the_lunatic_is_in_my_head said:

However they can't have it both ways and deal with consumers but contract out their rights by claiming the be trade only. 

A consumer is an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.

That's a statement of fact, ether you are or your aren't. If you are the CRA covers liability that cannot be excluded or restricted

Are the definitions of a "consumer" a bit more nuanced?
If the supplier operates on a "trade only" basis, and the purchaser makes a declaration to that effect, what level of evidence / responsibility lies with the supplier if the purchaser's statement was, in fact, false?

We purchased a kitchen from Howdens which is a "trade only" supplier.  This was for our BTL and Howden's accepted our statement that it was for the BTL as eligible for "trade".  We did not need to be a Ltd Co., nor registered as sole trader, the statement of being for our BTL was sufficient for us to open the "trade account".  Could we go back and buy another kitchen for our own home on that same "trade account"?

This is where the nuance comes into the definition, the BTL is not the "individual's trade, business, craft or profession" for either my wife or I.  We both had (at that time) full time jobs that provided our majority income.

Is the kitchen purchase for the BTL a consumer purchase?

This gets even more nuanced in the case of suppliers such as Costco where there are trade and individual members.  I suspect their terms classify anything purchased on a "trade membership" as b2b and "individual membership" as consumer.

born_again

TBH.

The odds on needing S75 are slim.

the_lunatic_is_in_my_head

Grumpy_chap said:

This is where the nuance comes into the definition, the BTL is not the "individual's trade, business, craft or profession" for either my wife or I.  We both had (at that time) full time jobs that provided our majority income.

I would say a BTL is a business regardless of not being main income in the same way if as any other "hobby" type of business, whether that be selling online, making Youtube videos or whatever, if the income needs to be declared it's a trade, business, craft or profession.

Yeah Costco falls right in that grey area of wanting the best of both worlds, as I say it would be interesting to see what would happen with something like running a burger van but buying a lawnmower in such a place, I can't say  

Grumpy_chap

the_lunatic_is_in_my_head said:

I would say a BTL is a business regardless of not being main income in the same way if as any other "hobby" type of business, whether that be selling online, making Youtube videos or whatever, if the income needs to be declared it's a trade, business, craft or profession.

I understand, and probably agree with, your perspective.  Particularly applying a "lay-person" view.  Indeed, it is often mentioned as such - being a business - in the "House Buying, Letting etc" area of these forums.

However, HMRC are clear that BTL income (by an individual, not Ltd Co owned) is not "trading activity" and nor is it "earned income" - which is important for the perspective of whether or not NI (including voluntary NI) is payable and whether or not pension contributions can be made against that income.

RefluentBeans

born_again said:

TBH.

The odds on needing S75 are slim.

Agree. I understand OP wants the protection, but by stacking the transactions like this it gives the impression that (to me) they know they’re not entitled to the protection and trying to ‘play the game’. Unfortunately, the banks have been ‘playing the game’ for a lot longer. Even if they are wrong to reject the S75 claim, by rejecting and having to appeal, the OP is going to take so much longer. 

I think the whole thing is a storm in a teacup as S75 shouldn’t be the immediate go to for issues with the product or fitting. 

the_lunatic_is_in_my_head

RefluentBeans said:

Agree. I understand OP wants the protection, but by stacking the transactions like this it gives the impression that (to me) they know they’re not entitled to the protection and trying to ‘play the game’. Unfortunately, the banks have been ‘playing the game’ for a lot longer. Even if they are wrong to reject the S75 claim, by rejecting and having to appeal, the OP is going to take so much longer. 

I'm not sure OP knows much about S75 other than the £30k limit (which is why they are seeking advice).

The important bit is what born_again has said which pushes them on to S75A. 

There are two important things to note with S75A, the additional requirements:

(1)If the debtor under a linked credit agreement has a claim against the supplier in respect of a breach of contract the debtor may pursue that claim against the creditor where any of the conditions in subsection (2) are met.

(2)The conditions in subsection (1) are—

(a)that the supplier cannot be traced,

(b)that the debtor has contacted the supplier but the supplier has not responded,

(c)that the supplier is insolvent, or

(d)that the debtor has taken reasonable steps to pursue his claim against the supplier but has not obtained satisfaction for his claim.

and this clause

(6)This section does not apply where—
(b)the linked credit agreement is for credit which exceeds £60,260 [F2and is not a residential renovation agreement], or

I'm not sure if a new build is a "residential renovation" but the figure in (6) is the amount of credit borrowed rather than the "item" cost so OP is under that any way.

RefluentBeans said:

I think the whole thing is a storm in a teacup as S75 shouldn’t be the immediate go to for issues with the product or fitting. 

I haven't seen OP say they'll jump on the phone to the bank if one of the windows is scratched however there was a thread here this week were someone is out 10 grand on windows, I think it's very sensible to have S75 cover where it's applicable and the system doesn't need to be "gamed" in the way OP suggested, they simply buy the windows and look to S75A should they need it   

born_again

the_lunatic_is_in_my_head said:

RefluentBeans said:

Agree. I understand OP wants the protection, but by stacking the transactions like this it gives the impression that (to me) they know they’re not entitled to the protection and trying to ‘play the game’. Unfortunately, the banks have been ‘playing the game’ for a lot longer. Even if they are wrong to reject the S75 claim, by rejecting and having to appeal, the OP is going to take so much longer. 

I'm not sure OP knows much about S75 other than the £30k limit (which is why they are seeking advice).

The important bit is what born_again has said which pushes them on to S75A. 

There are two important things to note with S75A, the additional requirements:

(1)If the debtor under a linked credit agreement has a claim against the supplier in respect of a breach of contract the debtor may pursue that claim against the creditor where any of the conditions in subsection (2) are met.

(2)The conditions in subsection (1) are—

(a)that the supplier cannot be traced,

(b)that the debtor has contacted the supplier but the supplier has not responded,

(c)that the supplier is insolvent, or

(d)that the debtor has taken reasonable steps to pursue his claim against the supplier but has not obtained satisfaction for his claim.

and this clause

(6)This section does not apply where—
(b)the linked credit agreement is for credit which exceeds £60,260 [F2and is not a residential renovation agreement], or

I'm not sure if a new build is a "residential renovation" but the figure in (6) is the amount of credit borrowed rather than the "item" cost so OP is under that any way.

RefluentBeans said:

I think the whole thing is a storm in a teacup as S75 shouldn’t be the immediate go to for issues with the product or fitting. 

I haven't seen OP say they'll jump on the phone to the bank if one of the windows is scratched however there was a thread here this week were someone is out 10 grand on windows, I think it's very sensible to have S75 cover where it's applicable and the system doesn't need to be "gamed" in the way OP suggested, they simply buy the windows and look to S75A should they need it   

That has to be linked finance, which would need to be provided by the company. Nothing to do with a CC in anyway.