Complaining to the Financial Ombudsman Service

[tifo]

Originally Posted by Pinky69

the FOS .... The banks and DCAs don't seem to bother about them.

The banks and to some extent DCAs, know how to manipulate the FOS and your complaint to their own cause. Having the FOS sympathetic to their case helps as well.

My experience is that no matter what you say about a DCA/bank, as long as they say there is some money owing somewhere, the FOS will take their side and see you as a 'won't pay'. The DCA/bank breaches of legislation, guidelines etc does not matter to the FOS and they will say they are not a court. Their motto is 'we have to consider law but not follow it'. The question i've asked is how do they make a fair and reasonable decision if it does not follow law but is based on an adjudicator's subjective opinions? I intend to take them to court over this, as they have now given away some £12,000 of my refunds (from banks) to DCAs, whom they have never even contacted for anything and some which i have cleared in full.

[davey77]

"'we have to consider law but not follow it'." Exactly what i was told over the phone several times. Sure is their Motto alright!

I hope you get satisfaction tifo.

[Pinky69]

I fully expect something similar and I intend to take it further if this is the kind of response I get. What the FOS are saying in effect is that they condone banks and DCAs breaching consumer law. I would answer each point they made and inform them that I would be forwarding their replies to the DTI and my local MP.

[tifo]

Originally Posted by davey77

I hope you get satisfaction tifo.

I hope so too. I just want to manage my own debt affairs without the bank/FOS becoming my agent for me.

One of the reasons i've been given is 'we don't think you'll pay the DCA', which is an opinion used to make a decision. But this is not based on law and they've not even contacted the DCA.

Basically, bank says they'll refund me the charges but pay the DCA. FOS agree and tell me to accept it or lose it. I've no idea how the balance at the DCA has been arrived at, does it include any DCA charges, how are they entitled to my money etc. They've not had to lift a finger and are getting a lot of my money from the bank. Kind of vindicates all their breaches etc.

Kind of seems unfair after all the law and guidelines the DCA has breached. But hey, the FOS/bank/DCA don't have to follow law. Only the consumer has to. We have law shoved down our throats all the time.

[reallymadwoman]

I insisted last time that any compensation awarded was paid direct to me, and it was. I used the 'unfair to other creditors' argument mostly.

There is always the option that if you don't agree that your money should go to a DCA, don't accept the settlement. If you've already got to the final ombudsman stage, all it means is that though you've been awarded that amount, nobody will actually get it. You don't get it, but neither do the DCA. However, when/if they take you to court, I imagine the FOS decision in your favour would carry some weight. Alternatively, you could use it to take the case to court yourself. What's the betting that if you did, the OC would cave in and pay you?

[tifo]

Originally Posted by Pinky69

I intend to take it further .... I would be forwarding their replies to the DTI and my local MP.

Would be interesting to know what else we can do. Taking court action agains the FOS is difficult, because you don't have to accept their decision and can still take bank/DCA the court, at which stage it looks bad against you.

I have passed it to my MP who has got a response from the Treasury (who oversee the FSA/FOS). The response is similar to what the FOS themselves state, in that the decision has to consider law. Nothing in their guidelines says they have to follow it. But a decision cannot be fair if it is contrary to the laws of the land, i argue.

The FOS say they look at the 'overall picture' which is not bogged down with legislative technicalities, so if i owe the money, that's where the refund goes. The DCAs actions are not looked at. The fact that legislation states they're not entitled to any money makes no difference, because the FOS don't 'follow' legislation, only consider it. That's like saying, yeah we know they're in breach, but we decided not to follow that part.

At the end of the day, it seems to be an adjudicator's subjective opinion that makes the decision, which can ignore any law it likes. As long as he/she thinks they're making a fair decision, which would not be bogged down with legal matters.

In a way, they put themselves above the court and the law. Answerable to no-one. Decisions set in stone. Even if found to be flawed, they cannot be changed. No appeal, only acceptance.

[tifo]

Originally Posted by reallymadwoman

I insisted last time that any compensation awarded was paid direct to me, and it was. I used the 'unfair to other creditors' argument mostly.

There is always the option that if you don't agree that your money should go to a DCA, don't accept the settlement. If you've already got to the final ombudsman stage, all it means is that though you've been awarded that amount, nobody will actually get it. You don't get it, but neither do the DCA. However, when/if they take you to court, I imagine the FOS decision in your favour would carry some weight. Alternatively, you could use it to take the case to court yourself. What's the betting that if you did, the OC would cave in and pay you?

Hmm, i've tried the 'unfair' bit and the bank/FOS wouldn't move. Payment to DCA only.

I've not accepted any settlements to pay the DCAs but the banks still state they've sent them my refund, so case closed. I don't understand why they ask me to sign something if they're not going to look at it. As far as i am concerned, the refund hasn't been paid to anyone and if the bank want to send payment to a DCA, it's not my payment but their own choice.

The problem is, the decision to pay a DCA is not in our favour but may work against us at court. I know the bank has accepted defeat and made an offer, so any court case should concentrate on the method of payment. Something like 'the bank has offered me £XXX.XX but has declined to send payment, instead wants to pay someone not a party to this complaint and an outside company. To settle the case, i require payment in the form of a cheque as i am capable of handling my own debt affairs'. If the court wants to, make the DCA a part of the case and get them to show why they want this money and why the bank can pay them.

[reallymadwoman]

How can the OC pay any settlement to anyone if you haven't agreed to accept it? How can the FOS allow this to happen? Presumably, if you haven't returned their formal acceptance the OC have just assumed you would agree and paid the money out.

I personally wouldn't consider taking a case to court for payment of anything if there is the slightest chance that there is an outstanding debt, but would only use it as part of a defence/counterclaim.

[tifo]

I've PM'ed you RMW ....

[tifo]

Originally Posted by reallymadwoman

I personally wouldn't consider taking a case to court for payment of anything if there is the slightest chance that there is an outstanding debt, but would only use it as part of a defence/counterclaim.

That would mean i never get my refund. It stays stuck with the bank and claim goes outside 6 years. Most have as the FOS has taken over 14 months to decide.

DCA is not taking me to court and i don't owe OC anything. So unless i take action first, i continue to lose. At worse, i'd lose the money to a DCA (same as now) but at least they'd have to turn up in court and work hard for it, unlike being given it on a plate by the FOS. At best, i'd get the refund as bank has no right of set off to an outside company and i can work out my own settlement.

[reallymadwoman]

The exact wording used when responding to a suggestion that compensation should be paid to the DCA. I might have been just lucky, or it might be that both the DCA and the OC seriously upset the Ombudsman, because it was never mentioned again.

'Payment of the full amount is to be made to me, by cheque. I would consider it wholly unfair to my other creditors for nearly of 50% of any award to be paid to XXXX when the debt to them represents less than 10% of my total debt. In my opinion this would represent profiting from their own misdemeanours.'

[reallymadwoman]

'That would mean i never get my refund'

It's entirely up to you of course and, as always, a cost v benefit decision. If you think it's worth any small risk, then it's worth doing.

[tifo]

Originally Posted by reallymadwoman

It's entirely up to you of course and, as always, a cost v benefit decision. If you think it's worth any small risk, then it's worth doing.

£12,000 (and counting) of my refunds given away to DCA. Basically, most of my claims. I think it should be worth it.

I would love to launch a claim against the FOS for this amount ... as compensation for the loss i have suffered as a result of their biased and flawed decisions. Now if only i could find a barrister ...

[tifo]

Originally Posted by reallymadwoman

I might have been just lucky, or it might be that both the DCA and the OC seriously upset the Ombudsman, because it was never mentioned again.

In my cases, there has never been a DCA involved in anything... other than having payment sent to them.

[reallymadwoman]

There must be some way of resolving this without tifo having to pay for a barrister. Is there nothing we can do to make the FOS behave reasonably? Anyone?