Please help! Problems with DPA.

[concernedfromkent]

I've recently started trying to get money back from serveral banks but have some into some problems with Barclaycard. Despite two Subject Access Requests, they refuse to give me the info on charges made to my account and are using the microfiche argument. I've responded to this using templates I found on alanfromderby's thread http://www.consumeractiongroup.co.uk/forum/abbey-bank/2434-alanfromderby-abbey.html?highlight=microfiche, but this has got me nowhere. I then filed a complaint with the ICO and the Financial Ombudsman Service. I recieved a letter back from the Financial Ombudsman Service today as follows:

 

Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

London

E14 9SR

XXXXXXXX

XXXXXXXX

XXXXXXXX

XXXXXXXX

XXXXXXXX

XXX XXX

Dear XXXXXXXX

Your complaint about Barclays Bank Plc

Thank you for your recent enquiry.

I am sorry to disappoint you but your complaint does not appear to be one we would deal with because it is solely about the firm’s legitimate use of its commercial judgement.

I am afraid that there are some limitations to our powers. One of these is that we do not have a general “policing” function with regard to banks. We do not, for example, have power to order or recommend that a bank should limit its charges to a particular level or should exercise its discretion in levying charges in particular circumstances.

Unless you tell me that the specific charge is not in line with the normal tariff, I regret that, on the information you have given, your complaint does not appear eligible for investigation under our rules.

The bank is under no obligation to issue a list of charges which have been applied to your credit card account. However, they may issue statements which will have the charges listed on them. A charge may be applicable for the statements.

I enclose, for your information, a leaflet which explains our service. Should you have any further queries, or believe your complaint is within our rules after reading the leaflet, please contact us again.

Yours sincerely,

Jenny Bryan

Consumer Consultant

I am prepared to take Barclaycard to court over this, using this template

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6971-data-protection-act-non.html

but I want to make sure I'm doing the right thing first. Has anybody got any advice? Is it worth going to court or are they just going to reitterate what the Ombudsman has said? Will I get the same responce from the ICO? Has anybody done this before with Barclaycard? If so, how did you get on? alanfromderby's argument seems sound, and it worked for him, but that was with Abbey. I still have about a week until Barclaycard fall outside of the 40 days they need to supply me with the information before it falls outside DPA compliance so I will probably wait until then before sending a LBA. Should I wait for the ICO to come back to me first? Argh! Too many questions. Please help!!!

[alanfromderby]

To be honest that is what I would expect from the Financial Ombudsman. Fence-sitting seems to be the thing the do extremely well - nothing much else springs to mind.

 

The Information Commissioner may respond in a more helpful manner, but remember that they are snowed under with complaints at the moment.

 

It is your call as to how you proceed, but with my claim I went down the county court route. Have a look in the Bank Template Library under DPA non-compliance, for more information.

[concernedfromkent]

To be honest that is what I would expect from the Financial Ombudsman. Fence-sitting seems to be the thing the do extremely well - nothing much else springs to mind.

 

The Information Commissioner may respond in a more helpful manner, but remember that they are snowed under with complaints at the moment.

 

It is your call as to how you proceed, but with my claim I went down the county court route. Have a look in the Bank Template Library under Data Protection Act non-compliance, for more information.

 

Thanks! Does it matter that in my original Subject Access Requests I didn't use the actual wording "Subject Access Request" or put a header on the letter with this on? I did make it very clear that my request was for charges that have been made to my account and not statments, and that I was willing to pay a fee up to £10 for this service. Would it be worth sending another letter with "SUBJECT ACCESS REQUEST" on it? If so, will that mean another 40 days from this letter?

[alanfromderby]

Provided the letter clearly stated that your request was under the Data Protection Act, the wording was broadly in line with the template, and you have proof of delivery, then you have done all you need to do.

[Glenn UK]

Alan

 

This is the second post ive seen with a problem with Barclays and the SAR arguing the case in your letter supports their views.

 

I dont agree it does, but notwithstanding that, is this a change in tack from the banks or do you think its just an anomaly?

 

And I understand that once the approach is made under the DPA if they dont respond then its up to the claimant to push through the courts if necessary.

 

Glenn

[alanfromderby]

My gut feeling is that the banks are just desperate to find any means they can to stall claims, and the ICO provides a good opportunity.

 

I believe the ICO does not have a big staff to deal with a massive influx of complaints, and it is struggling to cope. It also has a structured approach to dealing with compaints which can take time, and does not have enough flexibility or resources with which to carry out an urgent and detailed investigation into the achived data storage system every major financial institutions in the country.

 

What they seem to be doing instead is dealing with complaints individually, and requesting that the bank comply with the individuals request. This buys the bank a great deal of time, and of course, does not really help all the other people in the same position.

 

As far as the FSA are concerned, they are stuck between a rock and a hard place. The banks can state, as they have, that their charges are lawful, we believe they are not, and the OFT has stated that only a court can decide.

 

Until a court is allowed to make a definitive decision, then I believe that the FSA are totally powerless to do anything.

 

The unfortunate conclusion that I have reached from the above assessment is that we have two approaches realistically open to us:

 

1) We wait until the bank eventually sends the information - usually it does arrive, but it can be as much as three/four months later after seeral reminders.

 

2) We adopt a full-on vigourous approach, which the banks will find uncofortable, and at least keeps the timetable in our hands.

[Glenn UK]

Alan

 

Thanks for the response, I have been suggesting to people who's posts I have responded to follow the procedure for instigating a DPA claim if they are being stalled, seems to me that the legla approach is the least risky.

 

FWIW I dont have any formal legal training but i have worked in an area enforicng legislation, the biggest problem facing the organisation in pursuing succesful prosecutions was the failure on the part of its inspectors to conduct their work in a formal, legal way.

 

I dont see that 'being nice' to the banks or cc companies benifits us and ultimatley may do you claim harm if you slip up.

 

Its legal all the way for me to the best of my ability.

 

JMHO

 

Glenn

[gizmo111]

Took my claim against BC into court today using Alan's template, I claimed £20.50 in damages - 2 hours work @ 9.25 and 2 extra recorded delivery lettters - lets see what happens now.

[concernedfromkent]

Thanks for all the advice. Just to be doubly safe I'm going to wait a week until the 40 day compliance for the DPA has expired then send a LBA (any advice is most welcome). Here goes...

[Glenn UK]

Thanks for all the advice. Just to be doubly safe I'm going to wait a week until the 40 day compliance for the Data Protection Act has expired then send a LBA (any advice is most welcome). Here goes...

 

what do you mean 'doubly safe'?

 

Seems to me if your SAR was valid then claim, if it wasnt valid doesnt matter how long you wait it will still be invalid.

 

Since they seem to have responded as if your claim was valid in the sense they chose to tell give you the microfiche argument, if it wasnt valid they could have simply ignored it.

 

Personally im at the stage where they are using the microfiche argument. when/if they dont comply i will enter an estimate claim and a claim for non complaince with the dpa.

 

JMHO

 

Glenn

[concernedfromkent]

what do you mean 'doubly safe'?

 

Seems to me if your S.A.R - (Subject Access Request) was valid then claim, if it wasnt valid doesnt matter how long you wait it will still be invalid.

 

Since they seem to have responded as if your claim was valid in the sense they chose to tell give you the microfiche argument, if it wasnt valid they could have simply ignored it.

 

Personally im at the stage where they are using the microfiche argument. when/if they dont comply i will enter an estimate claim and a claim for non complaince with the Data Protection Act.

 

JMHO

 

Glenn

 

Thanks Glenn. I'm no legal expert (in fact this is all very new to me), but the way I see it is that B/card are saying my request for the info is invalid; I, however, am disputing this and saying it is valid. From what I've read on here it all boils down to whether the microfiche can be seen as a 'relevant filing system'. I say it can, they say it can't.

 

If, as I contest, my claim is valid, then I want to wait until they have exceeded the 40 day DPA compliance before I start county court action. I know they have already said they are not going to comply with my request, but I thought to be 'doubly safe' I would wait until the 40 days are up so that when it goes to court I can say that I have done everything possible to get the information from B/card before taking this action, and that I have entered into a dialogue with them etc. etc. I'd be happy to post the letter they sent me on here if anybody is interested...?

 

The way I see it is I might just get peoples backs up for no good reason if I go rushing into court action before trying every other option available to me first, which might then in turn go against me in court (hence complaining to Ombudsman and ICO first). Basically I want to appear to be a reasonable man... which I am

 

This might not be the best way to approach it, but but it made the most sense to me. Does anybody else have any thoughts? Glenn - you probably know a lot more about the legal ins and outs of these sorts of things so I'd value your opinion.

[Glenn UK]

Up front i am repeating things ive seen and read on here as opposed to being an expert.

 

I do try to be selective but you should always check things out to your own satisfaction before decidng whether to believe what anyone says.

 

I think to be hoens the microfiche argument is a smoke screen. Something to remeber as Vito Corleone said as he killed his victims 'its not perosnal, only business'.

 

Dont worry about offending anyone, you are exrcising your rights and the banks are triyng to stop you becuase it costrs them money.

 

I dont think they truly believe that they have aleg to stand on and this is why in general they are not actually fighting cases in court.

 

I think all you need to make sure is that you follow the step by step guide in the FAqs and once a dealine passes you can proceed to the next step.

 

I think you sound like a nice bloke whos trying to be polite, if you forgive me for saying so, too polite. The banks have been screwing us all over and now we are only trying to get back what they should not have taken inthe first place.

 

As i said its business for them and they dont give a stuff about us or our problems. we dont have to be rude to them but we do need to be firm

 

All JMHO

 

GLenn

[concernedfromkent]

[...] I think all you need to make sure is that you follow the step by step guide [...]

 

Which step by step guide is that? This one? http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6986-data-protection-act-non.html

Still trying to find my way around this site tbh.

[Glenn UK]

see my link for my response to them, made me feel happier not sure it makes any difference but i am reinofricng the dead line and repudiating their fiche argument.

 

HTH

 

Glenn

[concernedfromkent]

OK. The DPA peiod of compliance has expired so I'm posting a LBA to the Barclaycard DPA address, and also sending another letter to their customer service address beginning my claim. I'm going to send a copy of the preliminary letter listed in the library http://www.consumeractiongroup.co.uk/forum/bank-templates-library/671-letter-preliminary-approach-repayment.html, but have amended the section entitlyed "What I Require" as follows:

 

What I require

Due to your continued non-compliance with my Subject Access Request of 7th July 2006, I am unable to ascertain an exact figure charges you have levied to my account. In continuance of said purpose to claim fees and interest, I estimate that the amount you have taken at £XXXX. I would request that if you are able to offer further clarification on this figure that you do so. In the event of continued non-compliance in 7 days from today I will

seek a Court order obliging you to supply me with this information together with damages at the discretion of the Court, and without further notice. A Letter Before Action has been posted to your Data Protection Office in Knutsford today.

Additionally you may have entered a default notice against my credit record. These defaults would have occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

 

In addition to full payment of the sum mentioned above, I require that you remove the default entries that may have been entered against my account from the register. Please note that mere correction or amendment to the entry will not be acceptable.

I just had a few more questions for you guys before I sent it:

1) Does anybody have any suggestions or amendments to make to this before I post it?

2) What would you suggest is the best way to estimate the amount of charges levied?

3) Should I include a working of my estimation?

Thanks again for all of your help!

[bobtheb]

im going to do a spread sheet for my missing 4 years using estimations from the two years they have sent( i think my behaviour will have been roughly the same over the period) if you simply treble the 2 years as an estimation i don't think the interest will be nearly enough

[concernedfromkent]

im going to do a spread sheet for my missing 4 years using estimations from the two years they have sent( i think my behaviour will have been roughly the same over the period) if you simply treble the 2 years as an estimation i don't think the interest will be nearly enough

 

They haven't even sent me that though! I've sent them 3 letters now, all saying I make my request under the DPA and am willing to pay £10 for the service. They haven't even sent me the statements post 2004 for me to estimate!!! My first letter was dated 7th July which is 40 days ago tomorrow. Do you think I should just ridiulously overestimate (i.e. one charge of £30 every month since account was opened) and wait for them to correct it or is that a bad idea? Obviously they're going to have to access the microfiche to say I'm wrong, in which case they can give me the information I require.

[Warms]

They haven't even sent me that though! I've sent them 3 letters now, all saying I make my request under the Data Protection Act and am willing to pay £10 for the service. They haven't even sent me the statements post 2004 for me to estimate!!! My first letter was dated 7th July which is 40 days ago tomorrow. Do you think I should just ridiulously overestimate (i.e. one charge of £30 every month since account was opened) and wait for them to correct it or is that a bad idea? Obviously they're going to have to access the microfiche to say I'm wrong, in which case they can give me the information I require.

Hello concernedfromkent

 

If you haven't even got those statements since 2004, what are you planning on basing your estimate on?

What about going down the court route and claiming for non-compliance?

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6971-data-protection-act-non.html#post39317

Anyway, GOOD LUCK!

[concernedfromkent]

Hello concernedfromkent

 

If you haven't even got those statements since, what are you planning on basing your estimate on?

What about going down the court route and claiming for non-compliance?

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6971-data-protection-act-non.html#post39317

Anyway, GOOD LUCK!

 

Thanks! I'm doing that too. That's what the LBA I'm sending under separate cover is for, but I want to get things moving on the claim as it could be some time before court action is settled.

[concernedfromkent]

what are you planning on basing your estimate on?

 

Thats the problem! I'd just have to guess. I was thinking of going "worst case scenario". i.e. one charge of £20 every month for late payment, and another of £20 every month for overlimit fee. If they want to disprove me they are going to have to check the microfiche, in which case they can supply me with the information from it! Or is that a stupid idea? I don't know. I'm just clutching at straws here.

[Warms]

Thats the problem! I'd just have to guess. I was thinking of going "worst case scenario". i.e. one charge of £20 every month for late payment, and another of £20 every month for overlimit fee. If they want to disprove me they are going to have to check the microfiche, in which case they can supply me with the information from it! Or is that a stupid idea? I don't know. I'm just clutching at straws here.

I'm sorry, but I don't know if it's a stupid idea.

I can understand that you want to speed things up.

Barclaycard are a pain in the rear...

[kieron1810]

I'm in the same position as i have sent 3 dpa letters asking for statements for the period 2000 to 2004. Each time received the same letter in reply.

If i do estimate an amount and take barclaycard to court they will have to send the statements to disprove the amount.

As the court cost are 120 pound and the cost of the statements would be 144 pound, even if the case goes against me i can then use the statements to take them for the correct amount.

 

Can't see why barclaycard would go to court as i can prove they haven't provided me with the statements i have asked for.