So why a problem but S.75 say "no breach of contract"?

ElsieAtOps

Following from a previous thread, I had a warm conservatory roof installed 2.5 years ago (no wood, no metal, installer certified building regs approved). From the very start, the interior plaster started cracking at the 'hips' (the long outer angled corners), not just settlement or hairline or board joint lines, but jagged spreading and very unsightly ones which open only when there is sun on the outer tiles (even a bit in winter - an outer heat issue not an inner one) and close when its cold or cloudy. Also cracking at other places with sun, but less big.

The installer has over the intervening period had the ceiling taken off twice (after initial installation) and reboarded with different boards each time and replastered by different plasterers; then also sent 'experts' to fill the cracks with super filler and tape. So they have accepted that there are issues and tried to rectify.

And as soon as the sun comes, it just cracks again, same basic places.

They even had the designer instruct them twice to strip it right back and refit it 'properly' - it was done once, not total strip back. Still no difference.

A structural engineer engaged by the designer (so also helping the installer) visited and sometime later put in a rather basic and unhelpful report saying that the roof was functioning properly (well it doesn't' leak!) but also confirming that its theoretical permitted calculated mathematical thermal expansion should not be enough in such a very small basic roof to cause the plaster cracking, and that there must be other unspecified contributory factors: but he never came back to see the cracks open, even, never said what else could be going on, and clearly no-one, himself included, knows what the real problem is.

It hasn't been pleasant, I was forced to pay 'under protest' to get any more remedials done; they have delayed, then said in writing that they don't think that the roof will take plaster (as designed and brochure advertised), but also can't suggest a suitable alternative - then said later that they want to plaster anyway, and not try to clad. Now they just want to fill and paint again - as already done several times.

They say it's just "cosmetic" - which, visually of course it is, but it's not able to be stopped from cracking and looking terrible (the paint and plaster have fallen off each tine, never mind mm wide cracks), and the sun-related thing is surely not just cosmetic in terms of cause, is it?

I am at my wit's end. Taken CAB and various free legal advice and told that I'm well covered by consumer law. Written so many letters and kept and copied every email, have 1000s of photos. Tried to suggest alternatives, be reasonable. Suggested ADR and mediation - no interest.

So I have now put it through a S.75 claim (too big a cost for small claims court): but they tell me that they won't accept it because there has been no breach of contract.

I just don't understand this. Surely I contracted and paid for a roof which came sold as one complete product including a plastered, nice looking interior ceiling, and the installer can't provide the latter, nor rectify it. The ceiling surely wouldn't crack continually and so badly after 3 different board/plaster attempts, and wouldn't crack only under the effects of outer sun, unless there was something going on underneath the plaster to cause movement/expansion, whether that's a design issue or a fault in the manufacture or measuring or fitting/installing or something, surely. This is not an acceptable internal ceiling to have to live with. "Unsightly" was actually the engineer's term! But the installer now won't do any more, and the S.75 refusal has just given them more ammunition to say it's all fine.

Surely there's some consumer law unfit for purpose, unsatisfactory or badly installed issue here?

I can't get a surveyor to look because they're too busy, or just not interested, and when I do ask them they just say it's obvious that the cracks are being caused by thermal movement - but they can't say why either. Plasterers all say it's obviously moving, but have no clue why; ditto builders.

But S.75 still say there's say no breach of contract, no cause for action, no right to a refund in whole (to get another roof fitted) or part (to get it timber clad, for instance - though it indeed should be plastered).

So I just live with this constant horrid looking thing and let CowboyzRUs get away with it???? Is that hiw consumer law and S 75 work?

Thanks for any pointers; just seems so wrong.

ElsieAtOps

Hi. I might have to take action against a home 'improvements' (!) company for a product with significant defects. (A specialised composite roof, if it matters.)
One way and another, it's not looking like they're going to engage further in rectifications. No-one else does the particular product system involved, so I can't find anyone else to redo the work (I have tried), and the only way I can see forward is to have the entire job redone from scratch. That will mean getting someone else in to provide a similar product but from a different manufacturer and of a different materials/design.

Now, let's assume that I paid them £15k on a credit card ('under protest' according to CAB advice).
The cost of a replacement would now be £20k, say.

Can I (hopefully) recoup £15k via S75 and then take court action under consumer law for the remaining £5k to get someone else to put the job right (redo it)?
Or is it one route or the other only?
Court costs and process would obviously (or most likely) be much easier for £5k than £20k.

Thanks.

TheSpectator

Might be best if you stick to the facts instead of 'let's assume' - have you in fact paid in full for the alleged defective work or are CAB advising you to pay now under duress?

the_lunatic_is_in_my_head

Hello OP

If you paid with a credit card and the total job was less than £30k then the credit card company are jointly liable, i.e not just for the £15k but also for any damages however if a service like this isn't performed correctly you get someone else to correct the work for a reasonable price and claim any extra you paid over the original quote.

Purely for example: job £15k, paid £12k, cost of correction £5k, damages is £3k.

In some cases what was done might require completely stripping out and redoing from scratch.

Purely for example: job £15k, paid £12k, cost of remove and redo £18k, damages is £15k.

For services burden of proof will be upon yourself so you'll likely need some kind of independent inspection to confirm the service was not carried out due care and skill. You can add the reasonable cost of this to your claim. 

If the job cost more than £30k best to post more details on exactly what the job was and how it was priced for more details.   

ElsieAtOps

TheSpectator said:

Might be best if you stick to the facts instead of 'let's assume' - have you in fact paid in full for the alleged defective work or are CAB advising you to pay now under duress?

Sorry if not clear. I have paid the full invoice amount (under duress, but CAB and a legal helpline both advised me to pay using "under protest" given the specific circumstances). 
"Let's assume" was just in relation to a sum of money.

DullGreyGuy

S75 isnt capped by the amount paid on the card

Why did you pay them "under protest" rather than not pay them and leave them having to sue you rather than you having to sue them to get the same money back?

ElsieAtOps

the_lunatic_is_in_my_head 

If you paid with a credit card and the total job was less than £30k then the credit card company are jointly liable, i.e not just for the £15k but also for any damages however if a service like this isn't performed correctly you get someone else to correct the work for a reasonable price and claim any extra you paid over the original quote.

Purely for example: job £15k, paid £12k, cost of correction £5k, damages is £3k.

In some cases what was done might require completely stripping out and redoing from scratch.

Purely for example: job £15k, paid £12k, cost of remove and redo £18k, damages is £15k.

For services burden of proof will be upon yourself so you'll likely need some kind of independent inspection to confirm the service was not carried out due care and skill. You can add the reasonable cost of this to your claim. 

If the job cost more than £30k best to post more details on exactly what the job was and how it was priced for more details.   

Thanks

Not entirely clear what your figures mean in terms of "job", "cost", "paid" and "damages".

In my case - yes, it is below £30k - the contract price was £15k. I have paid £15k on a credit card. The cost of a replacement product would be £20k. 

Getting an independent inspection is proving to be difficult, for a variety of reasons, but I shall have to try.
The firm has agreed there is an issue, they have already attempted many rectifications to fix it, but admit also that they don't know what the cause of the (very visible, and many times photographed) problem is. It's not been right pretty much from day 1. It's now 18 months and they've seemingly decided to walk away. It is under guarantee by them too.

Okell

ElsieAtOps said:

... Now, let's assume that I paid them £15k on a credit card ('under protest' according to CAB advice).
The cost of a replacement would now be £20k, say.

Can I (hopefully) recoup £15k via S75 and then take court action under consumer law for the remaining £5k to get someone else to put the job right (redo it)?...

If you paid £15k for the job and you got that £15k back because the job was a "bad 'un", I'm not convinced that you can then claim a further £5k from them if that's what you should have paid someone else to do it properly in the first place.  Do you follow?

eg you had a job that needed doing and someone quoted you £15k to do it.  The job didn't work out and you got your £15k back.  You're back where you started - the job still needs doing and you've got your £15k back.  Why would they owe you another £5k for someone else to do the job properly for £20k?

Maybe I'm not understanding or maybe you aren't explaining it very well?

the_lunatic_is_in_my_head

Okell said:

ElsieAtOps said:

... Now, let's assume that I paid them £15k on a credit card ('under protest' according to CAB advice).
The cost of a replacement would now be £20k, say.

Can I (hopefully) recoup £15k via S75 and then take court action under consumer law for the remaining £5k to get someone else to put the job right (redo it)?...

If you paid £15k for the job and you got that £15k back because the job was a "bad 'un", I'm not convinced that you can then claim a further £5k from them if that's what you should have paid someone else to do it properly in the first place.  Do you follow?

eg you had a job that needed doing and someone quoted you £15k to do it.  The job didn't work out and you got your £15k back.  You're back where you started - the job still needs doing and you've got your £15k back.  Why would they owe you another £5k for someone else to do the job properly for £20k?

Maybe I'm not understanding or maybe you aren't explaining it very well?

But OP should be in the position they would have had been in had the breach not occurred? 

the_lunatic_is_in_my_head

ElsieAtOps said:

the_lunatic_is_in_my_head 

If you paid with a credit card and the total job was less than £30k then the credit card company are jointly liable, i.e not just for the £15k but also for any damages however if a service like this isn't performed correctly you get someone else to correct the work for a reasonable price and claim any extra you paid over the original quote.

Purely for example: job £15k, paid £12k, cost of correction £5k, damages is £3k.

In some cases what was done might require completely stripping out and redoing from scratch.

Purely for example: job £15k, paid £12k, cost of remove and redo £18k, damages is £15k.

For services burden of proof will be upon yourself so you'll likely need some kind of independent inspection to confirm the service was not carried out due care and skill. You can add the reasonable cost of this to your claim. 

If the job cost more than £30k best to post more details on exactly what the job was and how it was priced for more details.   

Thanks

Not entirely clear what your figures mean in terms of "job", "cost", "paid" and "damages".

In my case - yes, it is below £30k - the contract price was £15k. I have paid £15k on a credit card. The cost of a replacement product would be £20k. 

Getting an independent inspection is proving to be difficult, for a variety of reasons, but I shall have to try.
The firm has agreed there is an issue, they have already attempted many rectifications to fix it, but admit also that they don't know what the cause of the (very visible, and many times photographed) problem is. It's not been right pretty much from day 1. It's now 18 months and they've seemingly decided to walk away. It is under guarantee by them too.

Great so the contract price was £15k and you paid £15k.

So in terms of £20k to replace, can you demonstrate a replacement is required rather than matters being repaired/fixed/whatever for a lesser sum? 

If it must be replaced then you claim the £20k from the credit card company under S75.

If it can be repaired/fixed/whatever for less then, as you have a duty to mitigate (lessen) your loss, you instead claim the cost of repair/fix/whatever from the credit card company under S75.

That way you end up with what should have been done and will end up having spent £15k, if you see what I mean.

Grumpy_chap

Does S75 still provide protection to the OP in this case?

I get that the CC is "jointly and severally liable" but, here the OP had the work done and was unsatisfied with the outcome.  It seems as though no deposit / advance payment was made but, after the work was done, the OP made the full payment of £15k on CC "under protest".
If that is the correct sequence of events, does the CC still hold a liability even though the dispute was in motion before the CC was even utilised?

ElsieAtOps said:

 It's now 18 months and they've seemingly decided to walk away. It is under guarantee by them too.

What are the terms of the guarantee?
What type of guarantee is it?
If this is an insurance backed guarantee, rather than simply the firm saying they will resolve any faults, it may be worth contacting the guarantee company directly to seek a resolution.