Thread: elseg vs LLoyds TSB

FSA grants waiver to firms on complaints handling



Clive Briault

We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way.




FSA/PN/090/2007
27 July 2007
The Financial Services Authority (FSA) today (Friday 27 July) issued a 'waiver' from its complaints handling rules that apply to unauthorised overdraft charges complaints. This follows the decision by the Office of Fair Trading (OFT) and some firms to initiate a test case in the High Court to resolve legal uncertainties on the application of the law to these charges.
This action means that, until the test case is resolved, any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (fos) has adopted a similar approach and the county courts are expected to follow.
Clive Briault, Managing Director, Retail Markets, said:
"The FSA supports the test case on unauthorised overdraft charges as the current situation does not provide certainty or consistency for consumers or firms.
"We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges, complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to."
The conditions in the waiver include dealing promptly with complaints once clarity is achieved and communicating clearly with consumers throughout the process. 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.
The FSA will review the waiver in two months time to ensure, among other things, that firms are complying with its conditions. The FSA can also revoke the waiver at any time if it considers that the waiver is no longer appropriate, for example if progress on the test case is not being made or if a delay in the resolution of the test case is likely to cause undue risk to consumers.
The FSA will publish later today the results of thematic work on how firms are currently handling complaints on unauthorised overdraft charges. Practices varied across the visited firms, but in some the FSA found significant deficiencies and important areas of weakness in their approach. These included:

• a failure to respond to complaints fairly and consistently; to address adequately the subject matter of complaints; or to ensure complaints are resolved at the earliest possible opportunity;
• unfair closure of accounts, or threats to do so; and
• false or misleading statements made to complainants.

FAQs

1. What is a waiver?

A 'waiver' from a rule means a firm does not have to comply with the requirement being waived.
2. What is being waived?

In the main, we are waiving our rules that specify time limits for dealing with any complaint about the level, fairness or lawfulness of unauthorised overdraft charges. This means firms will not have to deal with these complaints within the normal time periods required by our rules.
A firm will still have to record the complaint and acknowledge it within 5 days of receipt, but the normal time limit for handling complaints will not apply. Time will be treated as not running in relation to complaints on charges for the duration of the waiver.
Normal time periods:

• within 4 weeks of receiving the complaint, the firm must issue a written response or a holding reply; and
• within 8 weeks of receiving the complaint, the firm must issue a written response or reply informing the complainant of the reason for delay, expected date of final response and right to go to FOS.

The waiver is initially being granted for one year, or until the resolution of the test case. We will review it after two months to ensure that there is a stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland; the FOS is not proceeding with cases about unauthorised overdraft charges until resolution of the test case; that firms granted the waiver are complying with the conditions; and, more generally, the continuation of the waiver remains appropriate.
3. Why has the FSA granted a waiver?

We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to.
4. What does it mean for consumers and banks and building societies?

Consumers:

• Consumers with complaints outstanding (currently with a bank/building society)
  The complaint will remain with the bank/building society; normal time processing rules will not apply. Complaints will be dealt with as quickly as possible once the test case is concluded.
• Consumers who have just been given an offer from the bank/building society
  Consumers will have two months to decide whether to accept the bank or building society's offer or to wait for the outcome of the test case. If consumers choose to accept the offer, it is unlikely that they will be able to complain again later regardless of the outcome of the test case. If consumers choose to wait for the outcome of the test case, they will not be able to take up the firm's original offer and the firm will only deal with the complaint once the test case is concluded.
• Consumers who may wish to complain from today
  Consumers can still complain now or they can wait until the test case is complete - they will not be disadvantaged. The complaint will be recorded and stored by the firm and will be dealt with as quickly as possible once the test case is concluded.

We will still require any new complaints to be acknowledged within 5 days.

• Consumers for whom Scotland is the most likely jurisdiction
  Consumers may choose to take their complaint to the FOS or the courts in Scotland. The right to refer the complaint to the FOS will not be affected. However, if the customer wants to bring a claim to the courts in Scotland, the timing of when the claim is raised may be important. They are advised to seek independent advice on filing a claim now to protect their rights (although a court fee will be payable).
• Consumers who have already had a settlement and think they may want it reviewed
  A Full and final settlement stands. In some exceptional circumstances the complaint can be reviewed, for example, if there is evidence of coercion or bullying.

Consumers can still complain about new charges incurred.

• Consumers who have received a final response from the bank/building society which does not include an offer
  Consumers still have the option of complaining to FOS. However, the banks and building societies have also requested that the FOS does not consider any complaints about unauthorised overdraft charges until resolution of the test case.
• 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.

This is an extract from FSA waiver - you can get the full transcript from the Internet.

might help

Jan

I have a hearing date about the N244 i filled in

see post 3 on this thread

Michael Browne is recommending completing one of these i think

If you go to LITIGATION section in red you can get a list of all the cases that have been settled out of court just on this website -

Also keep reading the cases where the stays have been lifted

I am not sure what else will help - but I think you will have to rely on the document you sent in - prove that you are a special case and take any evidence that the banks were deliberately delaying and had no intention of defending.

On the internet is the FSA statement about the agreement - that might help.

Jan

juicyd v AIB - STAY REFUSED - **WON**


Read this thread as well if you have not already

Jan

suffer hardship if no


reference your pm - I dont know whether you have read this thread - but there is reference to Lloyds on there as well.

The main thing I have read is that you must personalise your appeal in that its seems to be recommended to bring to the judges attention your specific situation as in my post above you can see that hardship cases are supposed to be filtered through.

I have no experience of LLoyds but A&L seemed to make it a case of who blinks first before the hearing then they backed down.

I am sure evrybody is nervous about going to court - but most judges will understand you are a litigant in person and will try and be helpful.

As I said as I have no experience of LLoyds I dont know if my method of ring them two days before the case will work for you.

I will keep reading and if I see anything else I will let you know

Really hope you are successful

Best of luck

Jan

Other questions


which court are you in?

Was there an aq with your case ?

And also can you show that Lloyds have used deliberate delaying tactics - in other words has it taken months to get this far?

In respect of the bundle - I assume you sent yours in?

Unfortunately the defendant can rely on their original defence - so it may not help you that they did not send their bundle in.

Jan

Hardship cases, please read this article, comment by fos***

Other questions


which court are you in?

I am in Hastings Court, on friday 7th (not 12th as prev thought

Was there an aq with your case ?

No, it was allocated immediately to the small claims, with a request to provide all evidence 2 weeks prior to hearing (which was for directions, but actually gave directions to hand in bundle??)

And also can you show that Lloyds have used deliberate delaying tactics - in other words has it taken months to get this far?

They did not supply all my statements - even to this day there are a few missing

In respect of the bundle - I assume you sent yours in?

Yes, and I have electronic proof of signing that they recieved it

Unfortunately the defendant can rely on their original defence - so it may not help you that they did not send their bundle in.

Their original defence was rubbish!

The above link doesnt seem to be working either, sorry

E xx

Hi

sorry I coud not get the link to work either.

Have you been reading whether Lloyds are appearing to defend stays ?

I hope you get on ok tomorrow - I would concentrate more on your personal situation above the standard defence document - and how you have been treated by the bank -I am sorry if I can not help much but I did not get to your stage - I just wish you all the luck in the world

Urgent Info Needed To Confirm A Bank Leak


Jan

*** Hardship cases, please read this article, comment by fos***

it is the halifax section - last post 29th August

jan

HDR - v - HSBC

this may be worth reading post OFT

Hello

How did you get on?

Jan

Oh I am really sorry - I think sometimes as you say if the judge has made his mind up you are just banging your head against a brick wall - Why would you have been liable for costs - was it outside small claims court?

Still all is not lost - the case is stayed but not over - I really admire you for actually getting into the court - you did your best - dont take it personally as lots of others are in the same position as you - you have had the guts to go as far as you did so I hope things will work out for you in the end.

Jan

I know the fos have put a stop on claims as well but do you think it would be worth a letter sending the FSA agreement with the banks - stating that you felt you were a genuine hardship case and in the terms of the agreement you should have been filtered through and treated as an individual case?

Just a thought.

The only other thing is that seeing the POC for the case next year it may be the banks turn to squirm yet?
OFT Test Case POC's



Jan

Hi Elseg,

I just saw your post on malaga's thread, sorry you still got stayed, the judge said the same to you as he did to me on the hardship case, so perhaps a warning to others not to try that one after all!

It does seem that they have no intention of lifting stays or going ahead, however hadyanth has had success in principle today, so good news there.

BW,

Fzrkitten.