Claiming back bank charges - Hardship cases - Help needed please

[steven4064]

Thanks MrsFoot

In fact it was one of your posts that started me off down this road.

Originally Posted by mrsfoot

I have a set of POC for Benfit related claims. In my opinion the one above crosses over into penalty charges to easily and therefore may cause confusion. I suggest you only use the SSAA 1992 as it is in black n white that they cant take it, if you keep crossing over onto penalty claims then it becomes wishy washy.

Not just that, it is likely to get stayed pending the outcome of the OFT case.

There is a problem though which I am trying to bottom out at the moment. On the face of it, it should be plain sailing to show unlawfulness of charges under the SSAA 1992 (and the Tax Credits Act 2002). However, it appears that both those Acts use the word 'charge' in a specific, technical way and do not mean charges in the sense that we do when we talk about bank charges. These charges are defined in the Crown Procedings Act 1947 and mean legal charges such as an attachment of earnings.

It appears that we may be able to argue that they are an assignment (the acts say that assignments and charges are void) but Zootscoot tells me that an assignment is only an assignment is it is agreed. in this case it is agreed because it's in the bank's T&Cs which we agreed to. However, that agreement is also void under the Acts. So it becomes slightly circular. THe bottom line is that the bank's T&Cs that allow them to take money from benefits are void. Therefore there is no contractual provision that allows them to make charges.

In your case, MrsFoot, you settled out of court so all this didn;t matter. However, we now want a case that will stand up in court - hence the discussion above.

Any contribution to the debate gratefully received.

[mrsfoot]

Your correct in thinking claims I have helped with have all been settled before the court hearing, but the POC details are the same.

To make it solid i would suggest using the T&C as the contract. This allows the bank to apply a charge to your account (agreeing to the assignment). If you were not on benefits at the beginning of the contract but this happened later on in the life of the account the bank still have the right under the original contract to assign a charge but this is now void under the Acts, leaving the charges unenforceable and should be refunded to the client. I imagine a couple cases need to be put to court to check validity (as with everything) but I cant see the banks winning these cases.

I also suggest the claimant to have completed a right of appropriation and kept copies of each one handed into the bank. This is evidence that the bank was aware of the customer being on benefits and therefore did not comply with the Act in not assigning charges.

oh if only the banks used manual intervention they would see the changes happening to an account, realise the customer is now on benefits and stop charges being applied

[steven4064]

THe banks cannot say they don't know. On my friend's account, every payment is identified as a benefit. They also know the law. It is not rocket science to program the computer to recognise benefit payments.

In my friend's case, he was already receiving all his income from benefits when he opened the account.

If the OFT case finds in favour of the banks then it will be complicated for accounts with some income coming from benefits - but we'll cross that bridge when we come to it. The Govan Law Centre advises people in Scotland to have a seperate account for their benefits becasue of this.

[SOMEFRIENDLYUK]

i'm going to use financial hardship in my case if they go for a stay. I'm sure there was something in the wavier about financial hardship cases must be allowed to continue. I will have a look about.

[SOMEFRIENDLYUK]

ps -i'm not on benifit so my argument will not be that route but possible loss of my house and other problems -i really don't think they can be argued against in court -of course the banks will try as they really don't give a s**T

[tifo]

have a look at my thread here ...suffer hardship if no refund ....

i just got back £817 from Lloyds today after they sent stay letters and i sent hardship/benefit letters.

after keeping quiet for some weeks they make the offer because of my 'financial position'.

so it shows the hardship case can work with Lloyds at least ....

on this complaint, the FOS has put a stay from their side and i did not have statements, just asked Lloyds to send me all charges with interest.

now i have asked them for a breakdown of the offer.

[Chickenlicken]

Norwich & Peterborough told me my benefit argument was 'a claim based on a misunderstanding of the law'

[so*fed*up]

I have got together a letter ready to send to the Halifax re. hardship cases, but as I have already sent the prelim letter & LBA, should I just proceed straight to court?

My letter is posted below (thanks to everyone who has helped), but do I really need to give them ANOTHER 14 days when they've already told me that they aren't going to give me my money back! Shall I rip it up and take it to court instead?

BANK CHARGES
Dear Sir / Madam
I am in receipt of Child Tax Credits and Working Tax Credits (income related benefit). I also receive Child Benefit into the account. The charges that you have applied to my account have been taken from these benefits. This complaint bears no relation to charges being unfair in accordance with UTCCRs.
The money was taken from my benefit, which I receive for myself, my husband and twochildren. I refer you to Social Security Administration Act 1992 section 187. The following is the section which applies to England:
Certain benefit to be inalienable.

87.—(1) Subject to the provisions of this Act, every assignment of or charge on—
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
(b) any income-related benefit; or
(c) child benefit,
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.
The Tax Credits Act 2002 s45 states the same.
The only income that we are currently receiving is Tax Credits and Child Benefit.
I have severe financial difficulties at the moment, and the charges that you continue to apply to my account are making the situation worse. I therefore request that you stop applying these charges with immediate effect.
This direct quote is taken from the FSA Press Release, dated 27th July:

"The FSA also expects firms to continue to help their customers avoid incurring unauthorised overdraft charges in the first instance and to continue to deal with hardship cases."

and this in the FAQ's:

"Consumers who are in very difficult financial circumstances - 'hardship cases'

Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS."


After seeking legal advice I have been advised to write to you and explain the situation. I am aware of the current FSA and OFT case which will be heard at a future date, however as I have explained this case is not related to Unfair Terms in Consumer Contracts Regulations, rather the charges are contrary to the above acts.
I hope you will treat my complaint without the need for standard replies / leaflets. I request the amount of £XXXXX to be refunded within 14 days. If the money is not refunded, you will leave me no option other than to file my case with the court and begin legal action. This will be without any further notice.
Yours faithfully,

[overchargedandangry]

Hi so*fed*up! I sent a very similar letter to yours (I think we had the same help, lol) and the reply I received is on my thread

http://www.consumeractiongroup.co.uk...-re-claim.html

Still waiting on another reply so will be posting my 2nd letter shortly.

[steven4064]

We have been through this part of the process and hope to file a claim against Halifax on the grounds that charges are illegal pursuant to these acts - see my thread

[overchargedandangry]

Hi Steven, I'm assuming then that you didn't get anywhere with them outside court, hence the need for legal action?

[steven4064]

We just got the usual rubbish about their charges being reasonable and transparrent and then, more recently, about the OFT case.

[Gazza01]

Hi all,

Just had a interesting conversation that was wide ranging in which this fact came up, it appears that banks/building societies should be sifting bank accounts [according tto the banking code] and helping those people who are in financial dificulty - this was the advice I got from a person on the National DebtLine, in conjunction with that was that you are recovering bank charges it was advised to emphasis fact that monies returned would "makes a difference in how person can handle their debt".

I'll be using that argument myself when it comes time for me to go to court if I am still unemployed at that time - fully intend to recover charges beyond the 6 years limit. [A mate's cousin is a queens counciller, I think I will be making use of any advice that might come my way from that quarter when the time comes!!].

Regards

Gazza01