My daughter, who has mental heatlth problems, recently discovered that she has been able to use her debit card and go overdrawn although she does not have any authorised overdraft. Therefore, charges are being incurred.

I have today had a conversation with one of the executive team who have said that it is in their T&C's that if a Visa Card is presented for payment then they will honour the payment.

I thought the whole idea of having a bsic account with no overdraft facilities was to avoid this situation arising.

She only receives benefits so I was disgusted with TSB today that they are not prepared to stop the overdraft situation. Their only offer of help was a Cashcard.

Before I start complaining to the FSA and FOS I would like to make sure of my facts.

Would welcome advice on this situation please.

BCOBS means they have an obligation to play fair and to take into account financial hardship.

A written LETTER BEFORE ACTION to their ceo is required here.

Ask for help and peeps here will be able to help prepare such a letter. You will eb asking for the charges back and any interest charged on them.

I emailed the CEO originally quoting BCOBS who passed the matter to his executive team hence the phone call this morning. I was told that BCOBS didn't apply because it was in their t&C's.

lies, said on the phone.

letter before action now then

have someone draft it with you here

No more phone calls, insist on all communication in writing. As part of the letter before action, make reference to the phonecall and state you do not accept their findings and that you want them to review their postion and give you their final answer in writing.

They did say they would put the conversation in writing so will wait for that but I really wanted clarificaation on whether they should be allowing soneone to overdraw on a basic account without an authorised overdraf.

I emailed the CEO originally quoting BCOBS who passed the matter to his executive team hence the phone call this morning. I was told that BCOBS didn't apply because it was in their t&C's.

I suppose of course that you haven't read our customer services guide and so therefore you didn't record the call. Why not?

The banks terms and conditions are subject to the statutory duties requiring the fair treatment of customers. If there is a conflict then BCOBS takes priority.

letter before action now then

I'm afraid that this is not the time for a letter before action – because you really don't know what action you're proposing to take and whether you would be prepared to go through with it.

A letter before action should not be used as a bluff. You should know that you're going to take the action. You should know the steps. You should have it all planned out. You should not make the threat unless you prepared to carry it out.

None of that is the case here.

You say that she has learning difficulties. How severe are these? Does she lacked the mental capacity to make a contract? Would a doctor be prepared to say that? Does the bank know about her condition?

If there is a yes to all of these three questions then you certainly have a basis for saying that the bank should not have lent the money.

In any case, you should protect yourself now by writing to the bank, pointing out her mental condition and pointing out to them that she does not have the capacity to know what she's doing that she understands the significance of borrowing money and that she understands what it means to have to pay it back.

You should therefore instruct the bank to place a marker against her account and not to permit any further overdraft. Tell the bank that if she does end up making a contract with some supplier, then it will be a matter between her and supplier and that your instructions the bank are that transactions should not be paid.

On that basis, you should point out to the bank that they now have a duty to treat their customers fairly and that to refuse to obey her instruction would run them into conflict with you.

What would be very interesting would be whether on having received this letter from you, the bank then proceeded to close her account. This is entirely possible because the banks don't like taking a lot of trouble over things and they don't like having to bother to make allowances for vulnerable customers.

If their response to your letter was to close her account, then this in my view would definitely be a case for BCOBS as well as being a possible example of discrimination.

Thank you for your response. She had a pyschotic breakdown in 1996 at 25,since been diagnosed with schzophrenia and depression and basically lives in her own world. She has no concept at budgeting. What is really annoying is that when Lloyds and TSB merged I had already involved MP and FOS and reclaimed charges and they did stop her overdrawing. The situation has come about because of the change back to to TSB.

I'm just amazed that they won't stop the overdraft now they've been told again. I did tell them that I had every intention of continuing with complaint to the FSA and FOS as I believed she was not being treated fairly. This I have evety intention of doing.

I've just checked her account now and they have repaid the latest charges. However, this really isn't the issue, I really need them to stop letting her use the card if funds aren't available.

Would it be worth complaining about this to the FSA?

Many thanks

Excuse me Surprise for intervening but I wish to make an important aside . . .

Could I ever so gently remind peeps not to confuse mental ill health with learning difficulties [eg post #6]. They may overlap at times in various ways, including capacity issues, but are different matters entirely and this can have a bearing on how one supports the service user in dispute with a service provider.

Thanks.

Thank you oleg, I can understand what you are saying and one of the many underlying issues she has is the lack of concentration and has difficulty in taking in what is told to her this is why I manage her affairs and why TSB allowing her to overdraw is creating a problem because I don't know what she is spending until it appears on her statement.

She does have a CPN and I have discussed this matter with her and she was going to try and discuss the importance of budgeting with her.

I thought the whole idea of having a bsic account with no overdraft facilities was to avoid this situation arising.

A TSB Classic account is not a basic account.

There is no overdraft allowed on it. I remember many years ago she asked for an overdraft and she was turned down.

Surprise Don't let this matter distract you. The term Classic account has been inherited from former LloydsTSB Classic accounts which were standard no-fee current accounts, whereas the basic bank account they offer is called a Cash Account.

Whether Classic has a "planned overdraft" facility depends on whether one has been requested/offered and approved, after credit scoring. If this hasn't happened, the bank will often create an "unplanned overdraft".

If they had been made aware of your daughter's circumstances, it would be incumbent on the bank to have placed warning markers on her account. But do you have any record of notifying them of her special disability-related needs?

I actually forward the CEO a copy of the original authorisation for me to deal with the account dated June 2007. It did state due to mental health problems. It was just after this time when Lloyds only allowed her to draw what was in her bank.

This ws also the time whem I went to the MP as Lloyds allowed her a credit card which she couldn't pay. I complained to them at the time for allowing her to have a card given that she was only receiving benefits and it was clear she was struggling financially. My complaint was upheld and they wiped the debt off plus she had all her bank charges refunded.

According to the call today there is no marker on her account and they said they were unaware of any special circumstances.

But of course you have evidence that they *were* aware.

I don't suppose you recorded the call you received today?

If not, at least make a few notes to aid your memory as this call is a damning indictment of their disregard for disabled customers and reference to it needs to be included in your eventual complaint.

They may try to put it down to demerger of records when the bank split up but this won't wash.

I can't stay now but while you wait for further advice, I would suggest that you familiarise yourself with the procedures which Bank Fodder included in his post above, if not already done so.

As for credit cards issued without due diligence, they are renowned for it. They would send one out to a barn owl if it got its name on the electoral register.

Just an update. Received the letter following our conversation and they are doing nothing wrong!

Replied, then received a further phone call and they stated she has 2 options, pay £10 a month to have the account controlled or go back to a cashcard.

I discussed this with her and she will have a cashcard. They gave me a number to ring, telephone banking, in order to do the change but they said she needs to go into the branch they can't do it there. Its a joke.

She has incurred bank charges from 9/12 Feb of £46 but they are waiving these. So if they are doing nothing wrong why would they waive them?

I spoke with her CPN about the situation and she said she has a lot of patients in the same boat and she has had to tell them all to go to the FOS.

The thought of dealing with the FOS again fills me with dread just knowing how dire they are.