@santanderbankgb Santander ignoring FOS findings - are they fit to be a bank?

[Planta genista]

Hi

I am attempting to help a registered disabled relative who was unable to cope when their life took a downward dive and Santander IMO took advantage to rack up the charges and mishandle the account.

 

Eventually I stepped in to help sort out a huge spiralling problem which was occurring in part because Santander had only disclosed their charges when it was too late.

 

There is a lot more to this, but to keep it short, we complained to the FOS who took over a year to reach their decision. They did not find for us over the claim of mishandling of the account which I was very disappointed about, but did find that Santander had ignored written authorities to allow me to handle the correspondence and ignored the provisions of MALG. The FOS also noted the maladministration by Santander of the correspondence etc and their failure to accept the authorisation and instructions to correspond with myself, and the distress caused.

 

The FOS awarded my relative £100 compensation for this and observed that they expected Santander to have regard to the MALG and to be aware and active where it is clear that due to a person's lifelong condition and there being no likelihood of their situation improving, that Santander should effectively consider allowing the debt to be written off. (not quite worded like that - but that's the gist)

 

Acceptance of the decision was binding on both parties. The FOS decision was that the compensation had to be paid to my relative, not offset against the debt.

 

So, because it is not my account and all of this is very distressing for my relative and causes a decline in their ability to cope, we accepted the decision and the compensation was paid.

 

I duly wrote to Santander to ask them to consider allowing the debt to be settled for a nominal sum.

 

Not only did they ignore that letter, we then received exactly the same threatening letters addressed to my relative which the FOS had specifically cited as being against the MALG guidelines and the reason for the compensation.

 

I wrote to complain again, to both the complaints and the recoveries dept, and had to ask my relative to sign yet another letter of authorisation to ensure that there was no misunderstanding and Santander could not say that the old authorisation was no longer binding.

 

I raised a new complaint with the Complaints dept.

 

No response.

 

I wrote to the CEO of Santander. No response.

 

Today, we receive yet another threatening letter, with no reference to the correspondence, new complaint - nothing.

 

If a financial institution has been formally castigated and required to compensate for their maladministration, and failure to acknowledge LOA, yet still continue to do exactly the same as if they were not obliged to be bound by any rules, are they fit to be allowed to manage a bank?

 

I do not know where to go with this.

 

I know I can technically raise yet another complaint with the FOS, but a) that causes huge distress to my relative, b) the relative does not understand that they are not going to be allowed to continue paying £1 per month but will now be hounded by a debt collection agency (as per Santander's threats), c) Santander clearly is not going take a blind bit of notice of the FOS, d) court action is not an option.

 

I have been toying with the idea of attempting an SAR, so that we could see exactly what Santander did hold on the account and how they are handling it. I say "attempt" because it would mean having to get my relative to sign yet another document and explain what I am attempting and why - and that risks causing them to become extremely anxious and stressed again.

 

Does anyone have any other ideas as to what I can do about this.

[BankFodder]

I think that an SAR is a very good idea and that you should do it even if it is difficult.

 

Can you tell us more about the debt. Is it a loan, a current account a credit card?

How much are we taking about?

 

Also please read up about BCOBS - follow the Bcobs link and also please read up about s.140S and s.140B Consumer Credit Act.

[dx100uk]

was this a bank account?

 

dx

[Planta genista]

Hi

It was an ordinary bank account which went overdrawn by a tiny amount when the owner was away and not coping. Santander lumped the charges on but there was no prior indication about the charges before it was too late.

 

Neither, when the owner tried to cope on JSA, were they informed that by continuing to use their debit card, for payments of up to £5 the charge was £5, and for payments over £5 the charge was £15.

 

eg a payment to a supermarket for food of just over £5, incurred a charge of £15, making the whole transaction over £20.

 

I managed to step in pretty quickly after a couple of months, but by that time the amount owed was hugely (for my relative) increased by Santander's charges.

 

The problem is that Santander are refusing to abide by the FOS findings and decision, and refusing to accept an LOA, refusing to even respond to written communication, so I have no idea what to do.

 

I can keep writing letters till I'm blue in the face, but where do we go if Santander continue to refuse to be bound by the industries own codes of conduct and legal requirements?

 

I'll read up on those links, thanks, but seriously, is there a way to report this to a higher body for full offical investigation?

[BankFodder]

That's OK, The more uncooperative and unreasonable they are, the better it is for you. They are playing into your hands.

 

Have you done the reading I suggested?

 

Also, you haven't told us how much is involved

[Planta genista]

Looking at the list in the link, I think one of the big problems is that, because all of this occurred before 2009, almost all those examples are not relevant as the account has not been in use since before then.

 

The first one is an issue, but they will certainly claim that they sent letters attempting to discuss the repayment. The fact that the letters are distressing as identified by the FOS and threatening, and that they refuse to deal with myself as instructed is the only thing that I can assume is covered.

 

They have refused to accept the offer of monthly payments from day 1. So they are technically not reneging on any agreement by threatening my relative with debt collection agencies.

 

 

However, it's all about taking the bank to court - Santander don't care, they just keep ignoring the law and I don't feel it's right that a single person should have to struggle to deal with this.

 

If I start to up the ante and make threats, I have to be able to carry them out to conclusion and obviously Santander know that this is going to be a problem because it's not my account.

 

Do you have a link for info on s.140S and s.140B Consumer Credit Act?

 

I've tried to google it but what I'm finding doesn't seem to be the right bits.

 

The amount owed is under £500 - not much I know compared to the amounts many people are struggling with - but it's a huge amount for us.

 

And - it's not even so much about the amount, it's about the fact that Santander are acting as lawless bullies, refusing to abide by official decisions and will not communicate.

 

My relative is still paying the £1 per month that was offered a long time ago, and Santander have never refused this.

[Planta genista]

I should also explain that my relative has another much older student account debt with a different bank, for a lot more, and they have been accepting his £1 per month payments under agreement for over 3 years now.

[BankFodder]

Even if the account is older than 2009, BCOBS still applies to their behaviour in respect of the account since then.

Before 2009 they are subject to COBS which imposes raoughly the same duties except that there is no direct right of action and so instead you ave to imply the dity into the contract.

 

Google s.140A and S.140B CCA.

They are very important because where you can say that a loan - including overdraft - regulated by the consumer credit act is affected in some way by an unfair relationship, a judge has the power the decelare that it is unenforceable.

 

£500 is a nice small claim which allows you to take a legal action on the small claims track in the County Court with very little risk if things go wrong.

Read up on small claims procedure in the county court. It is not difficult.

 

You ask is there any better route than the FOS. The answer is yes - the county court using the small claims track. Now you see how toothless the FOS is although their decision and the bank's failure to observe it will help you.

 

On would have to look more carefully at the facts of your case to make sure that there are no snags but in principle you should consider bringing a claim under s.140 on the basis that the the rleationship is unfair because of the way that it has been conducted by the bank.

You would also allege that they are acting in breach of their duty to treat you fairly under BCBS or COBS.

 

The only problem is that the action would have to be brought in your relative's name and they would have to be present in court.

 

Have a read also of the FSA guide know your rights

[BankFodder]

Have a read also of the FSA guide know your rights

[Planta genista]

I have read it briefly, but apart from going back to the FOS, I can't see what to do next.

 

This kind of problem and situation seems to slip through the holes in the net.

 

The MALG has a number of Guidelines:

 

(I can't post the weblink)

 

eg

 

Guideline 1

Creditors should have procedures in place to ensure

that people in debt with mental health problems are

treated fairly and appropriately.

 

1.1 Creditors should consider their processes and systems

to ensure that they can be responsive to a consumer16 in

financial difficulties, from the point at which the creditor

is made explicitly aware of (a) mental health problem(s).

 

1.2 The creditor will need to take steps to establish whether

the mental health problem affects a consumer’s ability to

manage money and debt, based on relevant testimony to

be provided by the consumer and/or their representative.

Guidelines 12 and 13 provide further guidance regarding

the collection of relevant evidence.

 

1.3 The creditor will also need to establish whether

the mental health problem will affect a consumer’s

ability to deal with telephone, letter, or face-to-face

communication, based on relevant testimony to be

provided by the consumer and/or their representative.

 

1.4 It is important to remember that the fact a consumer

has a given mental health problem, formally diagnosed

or otherwise, is not of itself an indicator of their relative

inability to manage money and debt. The issue is the

effects of the consumer’s condition (and/or associated

medication). These effects will differ from one

consumer to another, and may vary over time.

 

1.5 The appropriate response from creditors will differ in each

case, and could involve a range of approaches, including:

Working positively wiith an advice agency

■■ Promptly carrying out agreed actions

■■ Being flexible in responding to offers or schedules

of repayment

■■ Sensitively managing communications with the

consumer (for example preventing unnecessary and

unwelcome mailings)

 

1.6 (see page)

 

1.7 Of key importance is the need for creditors to be mindful

of mental health issues and ensure that they have

systems in place to be able to respond appropriately.

Such a high-level commitment should be enshrined

in relevant codes of practice. By way of example, the

Finance & Leasing Association (FLA) Code states:

 

“Health problems

We will take particular care if you are suffering from

health problems, including mental health difficulties,

when we are made aware of this.

This includes:

■■ Appropriately training staff to handle accounts,

including those dealing with complaints and

collecting debts for us; and

■■ Being sensitive to your condition and responding

appropriately when dealing with you or someone

authorised to act on your behalf

In order to do this we may need to ask for appropriate

evidence of your health problem and may need your

permission to record this information on our system.”

 

It goes on - but these are just guidelines, not something that is enforceable, unfortunately.

[Planta genista]

So, taking the BCOBS bit about treating in an unfair way and communicating unfairly , and applying the MALG Guidelines which the FOS expected Santander to have a regard to, technically there might be a case against Santander?

 

Practically, however, as I said right at the beginning, going to court is not an option because it is not my account. I cannot put my relative through this level of stress and risk a decline in their health.

 

I do appreciate the help you're giving, but the issue is that for many people, their legal rights are denied them because they cannot manage to enforce them.

 

This is not good - there has to be another way to force Santander to obey the law and act within the industry guidelines.

[gezwee]

Whilst you consider your next step I'd be inclined to report everything to the FOS. The adjudication having been largely ignored by the bank, they would be obliged to re-open the case file.

 

Was the decision binding or a recommendation only, and do you still have the contact details for the adjudicator?

 

 

Gez

[Planta genista]

Hi Gez

Yes, the decision was binding.

 

I prefer not to say any more - I have said too much already.

Edited March 17, 2012 by Planta genista

[gezwee]

That's interesting that they believe it's a new complaint, they really shouldn't have an issue with pulling the original case from the archives and pressing the bank to adhere.

 

This case may interest you, not necessarily the subject matter, more the judiciary findings on FOS binding agreements.

 

http://www.bailii.org/ew/cases/EWHC/Ch/2010/2875.html

 

When you next speak to the FOS, ask them for copies of all correspondence from the bank in relation to the previous complaint. They won't supply anything marked privileged or w/p but everything else is fair game. Be nice to see if there's an admission of their failings within.

 

Gez

[Planta genista]

Thank you so much for helping Gez. I will apologise for not being able to use that link - I have tried to read it but I struggle very much with this kind of complexity.

 

I shall leave this now.

 

Thank you for all your help.

Edited March 17, 2012 by Planta genista

[gezwee]

Typed a long reply earlier and......... connection went down as I hit reply - arghhhhhhhhh

 

No worries about the case above, it's a reference to 'merger doctrine', in essence the effect of a Fos decision on future civil proceedings.

 

Tbh, I believe the simplest route at the mo would be to see if the Fos have any damning correspondence first. They should be able to supply you with data within a few days.

 

Appreciate it's a bit of a waiting game, but sometimes the Fos [if you know what to ask for] can come up trumps and present you with a shortcut to resolving your complaint

 

Gez