Won FOS Complaint but Barclays not complying

[BankFodder]

Here is a link to some guidance on dealing with a subject access request disclosure.

 

I suggest that you take it slowly and methodically and don't miss anything. Don't make any accidents or overlook anything. Everything is important – not only what is included – but what is not included as well. Apart from anything else you will have two sets of data – one from the SAR and one from the bank. Compare them. It will be extremely useful to check one against the other because that is the way that you will discover gaps and omissions.

 

[BankFodder]

No don't mention anything else for the moment. Just see what they have to say about CIFAS

[BankFodder]

They have 30 days to respond to a subject access request. When they did you make it?

Secondly, I think in view of the way they have handled this, you should be sticking out for extra compensation.

Do you mean then they have four weeks before you have to issue an action? – No not at all – but on the other hand maybe we should just a handful little while longer to see what happens.

I'll have to try and read over this thread on the weekend and get myself back in the loop. It's far too long.

Also I'll try and put a letter together which you can send to them.

Incidentally why are you hiding their signature. You should disclose all of their identities so that everybody is very clear as to which shower you are dealing with and who is working for them. They are clearly stupid enough to accept their instructions from their clients at face value instead of doing proper investigation. It shows a shabby approach

[BankFodder]

First of all – apologies to anyone who might feel a bit incensed about this. I've gone through the thread and I have taken out anything that I felt didn't particularly add to the story and in fact I managed to get rid of 91 posts and reduce the thread from eight pages to four pages. I wouldn't normally do this but it seems to me that some of the issues here are so important that it was worth condensing it and making it easier to read.

Once again, it's been going on long enough for I've lost the plot and so I just want to go over what's happened:

You made a chargeback against your bank – which they handled incorrectly and they have admitted that they didn't attach evidence at the correct time and this is why your chargeback was rejected.

• However, they had already put a credit into your account and you had started to spend against it but on the rejection of the chargeback, they took the money back and plunged you into debt.
• Your account apparently contained about £49 at the time that the account was closed and you didn't have any access to this.
• You disputed this with Barclays and the matter was then escalated to the ombudsman service.
• By coincidence and exactly the same time Barclays closed your account and also registered a CIFAS marker against you. (Could you just clarify why they did any of this please)
• according to their records the CIFAS marker was placed because of multiple fraudulent transactions. (Would I be correct in simply saying that you were spending the 790 odd pounds that had been returned to you under the chargeback?)
• You then referred the matter to the ombudsman and the adjudicator found in your favour and recommended an award of £150 plus your money back. However no comment has been made in respect of the CIFAS marker.
• The money wasn't paid to you.
• Barclays said that they had paid it to you. – Now they agree that it wasn't paid but they are blaming the ombudsman.
• Now Danielle Russell has written to you in kinder terms – blaming the ombudsman and and saying that Barclays "are prepared" to pay the £150 plus your money back and they want to know some account details to paid into.
• There is some vague undertaking to have your record amended – but nobody is clear as to what that might be or whether it will actually happen.

Could you address these points please and correct anything I have wrong.

[BankFodder]

Are you sure that there is a CIFAS marker? Have you got evidence that the FOS believed that the £150 had already been paid?

Please will you take a look at the provisional draft letter below. Check that it is correct. Also check it for typos – I use dictation software and there's all sorts of errors that creep in because I may not articulate correctly or because I don't proofread adequately.

 

Also check that these are the things that you want to say – if there is anything that you would like to add or if there is anything that you would like to take away.

 

Quote

Dear Danielle

 

Thank you for your letter of the X X X

 

Although you haven’t specifically admitted it, that its contents effectively admit that the bank is in error and has been from the very outset.

As you know full well this has been my position from the start.

 

The bank offered me £150 compensation – but that was in April 2019. It was never paid. Furthermore I have had no access to my own funds – about £49 blocked since then. We have moved on considerably and although the FOS adjudicator has indicated that he thought that £150 was fair, your clients have since increased the difficulty and have not remedied the matter and so we are going to have to revisit the entire question of compensation.

It seems to me to be quite disingenuous that you have relied on the FOS statement that the £150 had already been paid. I have attempted to tell the FOS and you and your clients that it was never paid and I really fail to understand why your clients didn't simply consult their own files as clearly they must now have done and they have discovered that once again they were mistaken – and presumably it is your own clients who told the ombudsman that the money had been paid – so they have misled themselves, the ombudsman – and initially you yourselves.
Of course it is additionally galling that the FOS chose to believe Barclays bank over the word of myself, the complainant.  What has actually happened is that the bank have given the incorrect information to the FOS and then the FOS is simply repeated it back to Barclays and Barclays have taken it as gospel
Are your own clients really in such chaos that they mislead the ombudsman and then rely on the ombudsman's good faith belief that the money has been paid when in fact it is your clients who have caused the problem for everyone. It's all rather self-serving – Bravo.

However in the meantime, I’m certainly prepared to accept the £150 compensation plus also my own money which you have unfairly been withholding from me and this should be paid into my existing Barclays account which has been unfairly closed and the reopening of which will be a condition of any ending of this dispute. Your client already has the details of this account on their file – unless they have managed to lose those along with the other errors that they have committed.

Also I should point out now that in your letter you have used the word “settlement”. I will not agree that there has been any settlement of the issues and the £150 which I am accepting is simply a payment on account and as I have said, we will have to revisit the issue and explore a more realistic sum.
In addition to reopening the account and placing the funds there, I require an up-to-date bank statement so that I can now start to take control and manage my affairs.
 

You should bear in mind that your client has breached their contractual duty to me to run my account correctly which by their own admission they have not.

Your client also has a statutory duty to treat me fairly and it is clear from all circumstances that they have not done so. In particular, it is clear that the closure of my account was a retaliatory measure and as Barclays has now agreed to repay the chargeback money which they unfairly removed from my account, it is clear that all the other actions which they took against me were caused as a result of a mishandling of paperwork and their peremptory procedural actions against me which they are now attempting to undo. This is clearly a breach of FCA regulations. A serious statutory beach.

Additionally, are you aware that I have served a subject access request on your client and that they also in breach of their statutory duty in that respect as well. They have breached the time limit and the disclosure that they did eventually make was incomplete.

As you are apparently a data controller for your client, it seems to me that you have a direct responsibility to investigate this and to remedy the situation as quickly as possible.

You had better know that much of the missing material seem to involve correspondence around the subject of my complaint and your client’s communications with the ombudsman. My feeling is that Barclays is trying to hide their responsibility in this matter.

If I’m right then this would be a serious matter because not only would it be a statutory breach of data protection regulations, but would also be a further statutory breach of their duty to treat me fairly.

Finally – for the moment – there is the matter of my credit file and the CIFAS marker. I see that in your letter you have made some vague reference to the “Bank’s credit marker team” with a view to amending the record – but I think that I’m entitled to a full explanation of what is being proposed.

If you will not disclose this information to me then this is a further example of unfair treatment and a further statutory breach. You may not be aware that the bank has a statutory duty to communicate with me fairly – and they are not doing so.

As a side issue, it appears that your clients reported to CIFAS that I was perpetrating a fraud. It seems to me that you had a clear public duty to inform the police. Did you do so? What is the crime reference number please.

You can be sure that when all of this is sorted out that I shall also be making a complaint and sending a copy of any judgements to CIFAS so they can see how their subscriber has abused the system and continues to abuse it as part of a general cover-up.

I’m delaying the issue of proceedings the moment until I understand how far we can get with that this dialogue. But you should bear in mind that in every aspect of this dispute I am in the right and your clients are in the wrong – and the sooner they admit it the better it will be for all of us.

Please respond to this letter point by point and in the meantime I would suggest that the best advice you could give your clients would be to practice damage limitation by coming clean and addressing all the wrongs they have done to me and to attempt to rebuild some kind of relationship of trust.

I realise that as their legal representative you feel that your clients’ best interests are served by shielding them as much as possible that you would be quite wrong. Now is the time for a more modern and more honest and more decent approach.

 

Yours sincerely

 

 

 

 

I'm trying to reduce the issues by resolving as much of this is possible by means of dialogue and then afterwards we can see what is left and decide what legal action to take. If we can reduce the issues that become subject to litigation then this will be a very good thing for you.

[BankFodder]

A few more edits

[BankFodder]

I think you have to remember that Danielle is working for her clients and she has their interests first and foremost – regardless of the morality or the fairness of the situation.

I understand that she is a trainee solicitor – when she becomes a solicitor then in principle she becomes an officer of the court. However I haven't noticed that many solicitors basically reform their attitudes when they do become officers of the court.

I think two issues are being correctly identified here:

I'm not aware that this was an adjudication by an ombudsman. I had the impression that this was a recommendation by the adjudicator. As such I'm not sure it comes within the normal rules of being binding.
In any event it is clear that the terms of the settlement were that the money was paid by a certain amount of time – and that hasn't happened so I would say that any agreement between you was vitiated.

Give us a while and we'll sort out response

[BankFodder]

 

Quote

 

Dear Danielle

 

Thank you for your message of X X X date

 

I realise that you are acting for your clients and in principle you have to defend them – but also I would remind you that under FCA regulations your clients are required to communicate with me fairly and that statutory duty cascades to you as well.

 

Firstly, this is not a determination by an ombudsman. It was effectively a recommendation by an adjudicator and my understanding is that this would not necessarily be enforceable in court. Maybe you would confirm this as I’m sure you will know better than me.

 

Secondly, it is clear that the recommendation made by the FOS adjudicator was that the matter be settled and the payment made by a certain date. Your clients did not do this. The reason that they did not do this is because they are in a state of chaos and they mismanage their own records as well as my account.

By not complying with the agreement – even if it was capable of being binding – they have vitiated the agreement and so we can say that it is at large.

I’m sure you must realise this and so I consider that it is unfair communication to try and persuade me otherwise. You should remember that these documents are likely to be shown to court. I’ve already said to you that I will not accept any without prejudice communication. Everything is available to be shown to court.

In any event, the agreement to accept a certain amount of money represented the state of affairs and certain date November. Because of their mismanagement of their own files – and in fact there is inaccurate data processing – they have managed to extend and prolong the issue including adding to my distress. So in any event, there are further issues to be dealt with here and the matter has to be revisited as I have already said to you.

 

Once again I don’t think that you are in a position to disagree with this and if you did then I think that you would be effectively trying to use your professional status to mislead me. Don’t do it. It will all be brought before the court and I have no doubt that the court will agree with me.

 

You are asking me to remind your clients of the date I made the subject access request and to provide you with a copy. Are you saying that your well resourced professional clients have lost sight of the subject access request? Can you confirm this please – because there should be no need to give me any further indications. A valid subject access request was made and they are in breach. We can raise the matter before the court.

Because they are in breach – you won’t be able to remedy the breach – but you may be able to mitigate the harm if you get a move on.

I notice that you have avoided answering my question as to the "Credit Market Team". I think I'm entitled to know what your clients are doing with my personal data.

I notice also that you have avoided answering my question about the CIFAS marker. As I'm sure you must be aware, this is one of the most serious and principal sources of damage caused to me by your clients unfair treatment and by their inaccurate processing of my personal data. I think anyone would be damaged in the same way and is absolutely foreseeable.

Finally, I hadn't included this in my SAR – but I'm now formally asking you to let me know with whom has my personal data been shared. Please will you confirm that you have received this request, that you have understood it and the timescale for implementing it.

 

Please address the questions that I have put to you. Also I will ask you to bear in mind that you hold yourself out as a professional and you know you are dealing with a litigant in person. This means to an extent I'm relying on what you say as being accurate. You may not like it but you hold a duty to me as well. You will have to decide whether your professional ethical duty is subordinate to your contractual duty to your client. Maybe you can let me know on this point. Frankly I think that as your clients are obliged to communicate with me fairly – I think you also obliged to communicate with me fairly and I think that means that you have to be straight dealing.

 

Yours sincerely

 

Please check it to see that you agree with it – that it is correct – doesn't contain any typos – that you don't want to take anything out or if you want to put anything in then let me know.

Also, this is highly likely to end up in court – I hope you are prepared to step up to the mark because you will be in court on your own – you will have our support but I'm quite sure that Barclays will send a lawyer along and you may even meet Danielle - but probably somebody a bit more ferocious.

However, I take the view that you are effectively being bullied by the bank which really wants nothing better than to batten down the hatches and for you to go away.

[BankFodder]

CIFAS added in red

[BankFodder]

5 minutes ago, fkofilee said:

BF does the above take into the account by CIFAS?

I dont think that Danielle understands the concept of it and is brushing it off. IT needs to be addressed. It is the most damaging thing of the whole lot.

 

I would say that she has a duty to be aware of it and to understand its significance.

[BankFodder]

You're right – for some reason rather it didn't save down. It's there now.

No I really wouldn't bother to do court yet. As I've already said, let's see what they come back with. You got them paying attention now. I certainly wouldn't start instructing solicitor. You really would need a solicitor who understands a bit about these banking regulations and data protection regulations and you have difficulty finding one on the high street. It will cost you an awful lot money to instruct a solicitor and they will just get involved in some protracted negotiation, arrive at some negotiated settlement and then charge you much more than you will ever gain out of it.

It's up to you of course but you seem to have their attention now and so I recommend that you stick with this for the moment.

 

Also, with the virus issue at the moment – you have no idea what is going to happen and I can fully expect that people will either go or sick or the courts may even close and that means that there will be a huge backlog - when they eventually resume. Don't forget that civil matters will not be a priority.

The moment you issue a court claim, they will probably stop talking to you on the pretext that it is now a matter for the courts. Of course they could keep on talking to you but I think that they will exploit any possibility to delay matters and it could go on for many months – and even a year or more. Your best interests are in getting a solution – getting your money, getting your account reopened because if it is reopened that means that the CIFAS markers removed. If we can get you back roughly to square one – then you can start thinking about issuing claims for statutory breach and we will be absolutely delighted to help you.

 

[BankFodder]

Of course you're annoyed and it is perfectly understandable. Barclays are bullies. They're dishonest. They're careless. They breach their statutory duties and they don't care about that either – and nobody really bothers to enforce against them. They are used to getting away with it. It would cost them almost nothing to sort you out – give you a decent piece of compensation, open your account and remove the CIFAS marker and also they would benefit from a little bit of improvement to their reputation – but they don't care about any of this.

Too big to fail – too big to care.

They're bullies. Their solicitors sacrifice their principles working for them.

[BankFodder]

Well spotted. Have you sent the letter to Danielle?

[BankFodder]

Okay well keep it up your sleeve and it may come in useful later.

Clearly they should know this. They have a professional responsibility to know it. The bank has a professional responsibility to know it. It is yet more evidence of unfair communications and breach of their FCA statutory duty. Now you start to know what an ignorant load of bullies you are dealing with. I'm afraid that they get away with it because they assume – and generally speaking quite rightly – that their customers have no idea and trust them. Just like the FOS trusted Barclays when Barclays told them that the £150 had been paid.

You think that as a trainee lawyer should be a bit keener to get her stuff right.

So what we have here really is that the adjudicators view – or adjudication, when both parties agree to it simply becomes a working agreement. It's not binding in the way that she suggests. It doesn't stop you going to court – although I can imagine that the court would take a dim view if you change your mind without very good reason – but certainly Barclays failure to then implement their side of the agreement completely vitiated it.

I think it was extremely careless or else dishonest of her to suggest otherwise. Probably careless

[BankFodder]

I'm assuming that you had no reply from either Barclays or from the solicitors?

[BankFodder]

Can you remind me – did you give them an extension on the SAR? And if so till when?

[BankFodder]

They had their 30 days. Then they've had a further 14 days goodwill extension – and now they're not replying to emails.
 

[BankFodder]

And they haven't responded to your last email.

Well if you want, you could issue proceedings this weekend and click them off on Sunday night and I would suggest that you simply make a claim for distress which has been caused to you as a result of their statutory breach of data protection legislation. I would suggest that in view of the circumstances you put in a claim for £100 which will be cheap to bring and at least it will show them that you are prepared to take action.
If you want to do this then we can draft a quick claim form – have you registered with money claim? Have you looked through it and understood what to do?

Also I would suggest that you send an email immediately to Danielle and tell her that your patience is exhausted, that you consider that it is a discourtesy for her not to respond to your last email and that you consider that they aren't taking the issue seriously. The failure to abide by the data protection rules is serious statutory breach and unless there is a resolution, you will be following through with your letter of claim which was sent to them on X X X date and proceedings will be issued on Sunday.

Tell her that you are not prepared to get involved in any other discussion about it.

Tell her also that the other issues containing your email have still not been dealt with and if this continues then you will also be issuing a further and separate legal action for breach of their statutory duty to treat you fairly and to communicate with you fairly.

[BankFodder]

In that case send the email that you are not prepared to wait any longer et cetera.

Put draft up here if you want

[BankFodder]

Quote

The claimant is a data subject and sent to the claimant, a data controller a valid data protection act subject access request on X X X date. The defendant's data  disclosure was incomplete. The claimant informed the defendant and gave them a further 14 days to comply with the statutory duty. 14 days has expired and the defendant has failed to respond. The defendant is aware of all the details. The claimant has suffered a great deal of distress which is ongoing as the personal data is badly needed to resolve serious other issues with the defendant bank and therefore seeks damages of £100.

 

Can you check that the above is correct. Is there anything that you want to add or take away? You would not claim interest here. Address this to the bank at their head office.

I can't remember whether they actually met the original deadline. Please will you let me know

[BankFodder]

Okay I've edited it. Please have a look and see if that is satisfactory – after you have checked your own records. Also you better have a look around this site and elsewhere to understand the steps in bringing a county court claim. It's pretty straightforward – but it is better if you know each step in advance is that will give you greater confidence.

You can be fairly certain that when faced with a possible judgement for breach of statutory duty, that the bank will try to respond viciously. They are bullies and they will spend more time and money trying to crush you on this then it would cost them simply to get it right.

[BankFodder]

Just wait and see. It is clear that they have breached their duty but they will put in a defence rather than admit. Of course this is entirely unreasonable and it would be an abuse – but that's what they do.

They may decide to offer you the £100 – in fact this is quite likely – and conditions of confidentiality and that you withdraw the claim. For the moment I would say that you should not accept this. Then they will start to threaten you with costs if you do not accept and they will send a letter saying "without prejudice – save as to costs" – on the basis that they think that they will be able to get the court to exercise it's very rarely exercised discretion to award costs of all the legal representation against you. This will intimidate you and you will feel very worried about the kind of bill you are chalking up. This is where you will get nervous and this is where the bank will count on their bullying tactics. If Danielle gets involved in this then she will be part of it. If the solicitors try this then of course shame on them and they are effectively abusing their position as professionals and acting unethically because they will know first of all that – yes, they are in breach – and also, you will not have costs order against you.

You will have to stand firm.

[BankFodder]

I think I may not have suggested that you make a complaint to the ICO.

I think you should do this straightaway. See if you can do on the telephone – if not do it online. See if you can get a reference number. However make the complaint so that we can add the fact that to your claim.

[BankFodder]

Quote

Dear Danielle

I'm letting you know that I am issuing a claim for compensation for breach of statutory duty against your clients. I haven't heard from you and I haven't heard from them.

Just to let you know, that I actually work in the emergency services. The bank knows this and as they have provided you with all the information about me then you must surely know this as well.

This just gives you another aspect of the unfair treatment I have suffered at the hands of Barclays bank and with the virus crisis which has been emerging since January, my job has become even more difficult – and has been made extremely stressful by the unlawful treatment of me by your client.

Having to deal with my own job in extremely demanding circumstances attempting to do my bit to protect the public which presumably includes Barclays personnel and yourself.  I've had to juggle my own duties with trying to manage Barclays, their mishandling of my account, their lack of responses – and now your own failure to acknowledge my messages or to respond to them.

Bravo

Yours sincerely

 

[BankFodder]

In view of the information you've given, I've amended the particulars of claim so that you are claiming £200 for distress. If you're happy with this and I suggest that you click it off.

There is a principle in law that the wrongdoer takes the victim as they find them. You are in a very stressful situation in very bad circumstances and so it seems to me that to claim for that level of distress is extremely reasonable.