Institute of Trading Standards,
North Yorkshire.
9.5.14
Dear Sirs
Complaint against British Board of Agrement (BBA) , Property Care Association (PCA) ,Trustmark (T M ) and Royal Institute of Chartered Surveyors (RICS), regarding potential contravention of –
1 Misrepresentation Act 1967,
2. Sale of Goods Act 1979,
3. Consumer Protection Regulations 08.
4. Supply of Goods and Services Act 1982,
Background -
a. The Misrepresentation Act 1967 provides that negligent reckless or fraudulent representation can occur when suppliers make a statement that they know or believe is untrue or they make it recklessly as to whether it’s true or not. If the claim against the manufacturer is in negligence it is up to the manufacturer to prove it’s not untrue thus for example in BBA test Certificates they must provide evidence that their Certificated products work in accordance with their representation of being fit for purpose – an opinion they work or may work is unacceptable.
b. Sale of Goods Act 1979 sellers must supply goods which are fit for purpose and of satisfactory quality for their intended use. Sellers that rely on statements of others such as independent testing companies must also be reliable
c. Consumer Protection Regulations applied where - consumers must not be misled into making transactional decision upon misleading or false information.
d. Supply of Goods and services Act 1982 applies to a service using goods that may or may not work and that the service is inappropriate or unnecessary or not professionally or competently installed.
Complaint about BBA as supplier of testing services -
ISSE members represented by Simon Hare, Margaret Steele, Stanley Mallows and William Kidd wish to complain on behalf of all members and on behalf of the Institute in connection with what ISSE believes to be a cartel in the Property Care Association having secret meetings in or around end of January to early February 2014 in order to discuss what to do about fears on the part of the BBA that their October 13 statement (a copy of which is attached)expressed concern that damp proofing creams of low strength may not work.
BBA have a notice posted on their web site as of 5.5.14 implying that in addition to those fears expressed in 2013 the actual tests supporting the products up to that time were not relevant for those products – they claimthe test, MOAT 39, being invented before the advent of damp proofing creams.
The CEO of PCA Steve Hodgson wrote to BBA in October expressing concern that the low strength cream products’reliability described by BBA then the market would be adversely affected and potentially discredited.
In the opinion of ISSE the BBA and PCA then met to discuss ways of supporting the products either, while a new test was brought out, or they could support their fit for purpose claims in other ways.
If so this could form a cartel where 2 parties agree to influence the price of products and services.
During the period between the BBA announcing its findings and to date several certificates have now been altered where the references to how they were tested have been removed.
ISSE wrote a series of letters to BBA to seek clarification as to what test had been used. Their final response dated 8.5.14 suggests ISSE have made false assumptions based on out of context information and they remain in denial of any failings and state that they have an honest opinion that the products work. They suggest I have provided no new evidence as to BBA leading to review or withdrawal of the certificates.
They have simultaneously informed ISSE they have closed the file and will not respond to any more queries.
As Mr. Digby Harper the Chair of BBA has stated that ISSE have not presented any information to help clarify the matter, but ISSE would respond that they do not need to as BBA’s own statement conclusively states that the low strength products are not fit for purpose.Furthermore they imply that the tests undertaken since 1988 are not suited to dpc creams.
It is not the responsibility of ISSE to prove negligence under the Misrepresentation Act BBA should prove why the products work by submission or irrefutable evidence not a reckless opinion that they believe them to work.
That the Chairman of a nationally known and previously respected testing agency also misleads himself, consumers and ISSE by stating that Ms Curtis Thomas their CEO must be addressed as Dr is itself an indication of negligent or reckless regard to truth that one would hope would not prevail in an organisation that exists to give credibility to products used by consumers.
It is well known that those who are awarded honorary doctorates must not allow themselves to be addressed by others as Doctor. If Mr Harper did not know this then should one believe anything stated by BBA especially when it is not supported by an authoritative source of how the products came to be regarded as ‘gold standard’ ‘fit for purpose’ – (Misrepresentation Act) ?
ISSE believe this is important as it forms part of the web of misrepresentations that we believe BBA to be making.
Complaint about PCA and TrustMark regarding supply of Services –
PCA contactor members have as of 5.5.14 not been informed by their trade body that the products they are using may be ineffective. Thus their members may be acting in contravention of the Supply of Goods and Services Act 1982.
Their CEO Steve Hodgson is also a director of Trustmark the govt sponsored flagship regulatory consumer protection body that exists to offer consumers reliable and fair services. Yet Alan Slaney MD of Trustmark sees no conflict of interest and has made no comment on DPC creams being ineffective. He has not stated he will investigate the complaint which is what he should have done when it comes from a members’ Institute within the industry.
Complaint under Sale of Goods Act 1979 relating to Sovereign, Wykamol and Triton manufacturing members of PCA, despite being known to their CEO Steve Hodgson and director of Trustmark,Mr Hodgson has notas of 5.5.14 yet informed the trade body’s contractor members of the potentially ineffectiveness of the low strength creams.
Therefore their services are continuing to be endorsed by Trustmark in offering such services and products to consumers. As a director of Trustmark and PCA, Mr Hodgson had, and still has, an urgent need to inform his members and to advise Trustmark of this matter in order to protect the interests of consumers.
His failure to do so must by any reasonable definition amount to recklessness. Mr Slaney’s duty of care should be act in the public interest and order an investigation into this matter. He has despite being fully aware of the issues failed inform ISSE that he will do so and we believe he has not acted on this information to protect the public.
Complaint About RICS under Supply of Goods and Services Act 1982 – RICS surveyors have entered into agreements with Esurve and thousands of RICS members to restrict consumer choice to PCA members only. ISSE are discriminated against in this area by RICS members and by RICS themselves who refuse to even investigate this practice despite written evidence of their logo being used in connection with the practice and in spite of their web site statements that their members must follow procedures which protect the public.
Their Charter granted by Queen Victoriawas on the basis that they served the public. RICS are driving consumers against their free choice to using only PCA members that were criticised by Which 2011 in offering unnecessary services.
We attach the following documents –
1.BBA statement on damp proofing issued Oct 2013. see current statement on their web site.
2. Which Article on Damp Proofing 2011
3. PortsmouthUniversity test of dpc cream results.
4. Letter to Privy Council from ISSE regarding none response to complaint.
5. Final response from BBA to ISSE.
6. Sorted PR response to RICS final response to their press release with copy of RICS report attached demonstrating the restrictive practice.
Below is an addendum of extracts from various consumer organisations and their summary of the legislation.
Please can you advise on your opinion of these matters and accept these as a complaint to CMA and Trading Standards ?
Yours faithfully,
William Kidd
Seaton Hall, Staithes, Saltburn by the Sea, TS13 5AT -- 07957 845599
Which Summary -
Fraudulent misrepresentation
A fraudulent misrepresentation occurs when someone makes a statement that -
- they know is untrue, or,
- they make without believing it is true, or,
- they make recklessly
If you enter into a contract as a result of a fraudulent misrepresentation, then you can cancel the contract, claim damages, or both.
The Misrepresentation Act 1967 allows you to base your claim on negligence or on the fraud.
In addition, when a misrepresentation claim is based on negligence, the law states that the person who made the misrepresentation has to disprove the negligence.
In other words, they must prove that they had reasonable grounds to believe the statement, and that they believed the facts represented were true.
The Sale of Goods Act 1979
When you buy goods you enter into a contract with the seller of those goods.
Under the Sale of Goods Act 1979 goods must be:
- the sellers to sell
- as described
- of satisfactory quality
- fit for purpose made known– this means both their everyday purpose, and also any specific purpose that you agreed with the seller
Consumer Protection regulations 08 -
Prohibition of unfair commercial practices
3.(1)Unfair commercial practices are prohibited.
(2)Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3)A commercial practice is unfair if—
(a)it contravenes the requirements of professional diligence; and
(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.
(4)A commercial practice is unfair if—
(a)it is a misleading action under the provisions of regulation 5;
(b)it is a misleading omission under the provisions of regulation 6;
(c)it is aggressive under the provisions of regulation 7; or
(d)it is listed in Schedule 1.