Tesco Bank - CIFAS Placed 2016 - Advice On How To Handle?

[BankFodder]

Please could you put up the written decision from the FOS which suggest that the matter hasn't been handled correctly by Tesco.

[BankFodder]

These documents are very useful. However it is clear that there are two issues.

The first issue is that the process used to place the CIFAS marker against you was carried out unfairly.

Everybody seems to admit that completely – even Tesco's. Have you been offered compensation for that? And have you accepted it?

I've noticed that you say that you have received compensation because of breaches of subject access requests – did you actually accept these compensation sums? Please could you tell us about the note or letter which accompanied the offer of compensation. It say that this was in full and final settlement? Did it say that the compensation offers were made as a gesture of goodwill?

The second issue is that everybody is saying that despite the fact that the process was carried out unfairly, the final decision was correct.

I don't know if you can understand the fact that this can be divided into two issues. It's important that you do.

Effectively what they are saying is that even if the correct procedure had been carried out, the result would have been the same and that you would have had a CIFAS marker against you.

Of course this is possible – but equally it could well be that the bank and the FOS are simply being protective. You should have no confidence in the independence of the FOS. By and large they are an industry poodle.

The ICO has found that procedures were not correctly applied – but only in respect of the way that your data is handled. In terms of the actual decision being made, the ICO has simply said that it is not within their jurisdiction to express any opinion. That is a reasonable thing for them to say.

Of course one thing that troubles me – and it troubles me with all of the CIFAS issues – is that these banks never ever inform the police. I'm amazed that there is no statutory duty – but it troubles me and I think it is unfair not to inform the police. I think they should inform the police so that they can be a proper investigation and your site can be put to them.

I understand that you were asked to make any representations about these allegations of fraud. Is that correct?

Also, going back to this thread, I see at some point that one of my site team colleagues has said that the CVV of a debit card was disclosed. Is this correct? How did that happen?

At the time of the fraudulent activities, had you parted company with your card at any point?

[BankFodder]

Once again, when they offered you the compensation, what did they write? How much was the compensation? Also, how did they pay it to you?

Did you tell Tesco's about giving this car buyer the details of your card? What date did this happen?

When Tesco's eventually made their subject access request disclosure to you, what was included in it? When did it happen?



 

[BankFodder]

The letter you posted above is undated

[BankFodder]

I'm looking at the crime notes which you have posted in PDF form above.

First of all, it doesn't have any date.

Secondly, was this disclosed to you as part of an SAR? Is this all there was?

Thirdly in the conclusion it refers to a review by a team manager. Have you seen a copy of that review? And if the email which was then sent back to the author of the crime notes?

Fourth, there are some abbreviations which I don't understand.
What is ACTO?

It says that it has noted you as CAT X - xxxx as a result of this investigation. Presumably that means some kind of category but the category number has been redacted. What does that all mean? There are other reductions which we don't understand which don't appear to refer to the names of individuals. Of course under the rules, they are allowed to redact to protect the privacy of individuals but otherwise, I think you are entitled to an explanation. You are certainly entitled to a next donation of any codes they use.
also see that they apparently raised an "incident" to obtain online activity report. What are these? Have you received those?
This is an extraordinary document that they've released here and it will be extremely helpful to you but we need to find out more about it.

Also, I'd be interested to know why you left such a gap in coming to the forum. You were here in about October last year and then a gap right up until just this month.

I

[BankFodder]

It's unhelpful when you post images sideways. It's unfair and you wouldn't like it if you are helping somebody and they did the same thing to you.

[BankFodder]

How many pages as the full SAR?

Also, I think we need to see the review and I think we need to understand what the various codes are and also I think we need to understand why they have redacted the category number.

When did you receive that document – the crime notes?

Also, what date did you receive the undated letter which you have posted above?

[BankFodder]

If you would be able to arrange the SAR documents in a single PDF – but properly ordered in the right way round et cetera – in the way that you'd like to receive them yourself. And if you could then use the bookmarking system to indicate each individual document – linked across, then it would be interesting to see them.
I think the exercise of putting this together would probably be useful for you as well.

So I understand that a year ago they offered you the £150 and it was paid directly into your account. Since then you have made no comment to them about this document or the payment

[BankFodder]

Why are you on the telephone now? You come to us for advice and then you start acting on your own. This has gone on long enough and frankly your lack of action and also your incorrect approach has helped to get you deeper into the mess which has been created by Tesco.

If you are on the phone now then please get off the phone. Just hang up.

If you want some kind of help from us – then you better stick with us and at least consult with us before you start going off and taking your own actions.

I'm not sure how far we can help you – but you will do a better job with us then without us and at the very least you should refer to us.

If you want to go it alone then there's no point in continuing this thread

[BankFodder]

So you had better tell us what you have just said on the telephone

Also, you said that you have been trying to contact them about the money they sent you and they have blanked you.

Can you tell us what you have been trying to say to them – and simply list out the dates of the messages.

[BankFodder]

Have a look at this

 

Quote

Dear Sir/Mdm

 

Reference number XXXX – incomplete subject access request

 

I refer to the subject access request which I made to you on XXX date and after a dispute and your initial refusal you eventually complied with on XXX date.

Although this was some time ago, the subject to still live. I have delayed in getting back to you partly because the distress you have caused me in getting the initial disclosure has been substantial – but also the distress I am suffering as a result of your unfair placing of a CIFAS marker and against me has made it difficult for me to cope with these things.

However, I have now managed to start looking at things and I’m informing you that the disclosure which you made to me is incomplete.

It’s not clear to me the extent to which it is incomplete but in any event, the disclosure did contain one document – an undated review/investigation document called “Crime Notes”.

I believe that this review was carried out by a Tesco’s employee called Tony O’Donnell. Tony O’Donnell’s conclusion was that there was no basis for for placing the CIFAS marker against me as Tesco’s were unable to establish that I was complicit and aware that funds were fraudulent.
 

It goes without saying, that this was the correct conclusion.
 

However, a subsequent note on the same document says that Tony O’Donnell’s investigation and conclusion was itself reviewed by a Team Manager who made the decision that the original investigation should stand and that the CIFAS marker was correctly placed.

The team manager then emailed Tony O’Donnell to make him aware.
 

I have searched the large bundle of documents supplied as part of your statutory disclosure and it does not contain the review by the team manager and also there is no trace of the email which was sent back to Tony O’Donnell.

So at least in these respects, the SAR is incomplete. They may well be other documents missing and I am going through the disclosure bundle to see what they might be.
 

Also, you should be well aware that you have a statutory duty to provide a key or legend to explain any codes or acronyms that you use.

No such interpretive guide was contained in your SAR and so at the very least there is no explanation of what an “ACTO” is.
 

Furthermore, the crime Notes has been redacted in various places. I can fully understand that the names of various individuals have been hidden – and I have no issue with that. However, there is a reference to a CAT and a redacted number or reference being loaded as a result of the investigation. There is no explanation as to what this reduction is or why it has been made and frankly if it refers to simply a reference number or a category then I do not understand why this information should be redacted and I believe that I am entitled to it.
 

You also refer to a “Tesco credit card suspense account”. What is a “suspense account”?

Finally, you decided unilaterally – without any reference to me – to make a compensation payment of £150 for your bungled handling of my SAR request.

Although I did bank the cheque at the time, I do not consider that it was at all adequate and you should not take the fact that I received the cheque and banked it as a sign that the matter has been dealt with and is closed. Furthermore, it is very clear that your inadequate unilateral payment of £150 was intended only to reflect your bungled handling of the SAR up until that date

Not least, your incomplete disclosure is keeping the matter open and is adding to the distress I have suffered.
 

I would be grateful for your comments but I will look forward to receiving the missing documents to which I have referred and also an explanation of the codes and also an explanation of those reductions which you have made and which are not intended to protect the confidentiality of individuals within your organisation.
 

 

[BankFodder]

Check it carefully. Make sure it's all correct and you are happy to sign it – let us know if there's anything you want to add.

Also, check it carefully for typos/spelling errors because all of this stuff is written using dictation software and it doesn't always get it right.

If there's anything you don't understand in the letter then ask now – before you send it off and it's too late.

[BankFodder]

I think the important issues here are the fact that the investigation has not been carried out properly. They haven't followed their own policies of referring to the customer for explanations before making a decision. The FOS has considered that they have not used proper procedures. The ICO also considers that they have not used proper procedures – and at first instance, their own review has considered that they didn't have sufficient evidence to substantiate the CIFAS marker.

The CIFAS marker was only placed after an anonymous manager overruled the investigation result and required that the CIFAS marker be replaced in any event.

Although there are legal requirements, I wonder if they are statute based and I wonder whether they are overridden by the banks' duty to treat customers fairly.

Frankly the fact that there has been an instruction by a manager to override the results of an investigation – smacks to me as a kind of cover-up where the bank was embarrassed to resile from their initial position.

Definitely much more needs to be known about it.

 

It also seems to me a matter of fairness that if the bank is so convinced that they are dealing with the proceeds of crime, then they have a duty to report the matter to the police and obtain a crime number. In fact this never happens and I consider that that is unfair treatment as well.

A CIFAS marker can have a devastating effect on anybody's life and so it seems to me to be a principle of natural justice that the police should be informed so that an independent and thorough investigation can be carried out and that the recipient of the CIFAS marker has an opportunity to be heard – and frankly, to see the evidence against them.

We are talking about crimes here

[BankFodder]

Thanks – but we may as well ask them anyway

[BankFodder]

Well I don't think you should wait too much longer.

When was the original return date of the SAR?

[BankFodder]

Yes but wasn't 16 March letter a response to an original SAR which you sent?

[BankFodder]

I think the only thing left for you to do is to sue them in the small claims court for unfair treatment under BCOBS. It is difficult to know what the outcome of this would be. They have admitted already not having used their correct procedures – so that is clearly unfair. However, I think that what you would really be aiming for would be a decision by the court which included an opinion that their failure to produce the review which effectively recommended that the marker was not placed against you – was unfair.

It will be interesting to get that person – the person who reviewed and recommended against the marker – to provide a statement to the court explaining why he took that view.

Of course if you brought an action then it is quite possible that the bank would simply offer you the money that you are claiming in order to bring an end to the action. This would not affect the CIFAS marker – and you would have to decline the payment and continue the litigation.
The problem with declining an offer which has been made which matches your claim is that you risk the court making an order for costs against you on the basis that you could have saved everybody time and trouble by accepting their money offer.
However, the court does have a discretion not to order costs where they consider that there have been exceptional circumstances which mean that it is reasonable for you to reject the offer and to continue your action.
You would have to persuade the court that the money you are suing for was not the principal reason – but the most important thing was to get a court judgement which basically said that the way that the CIFAS marker had been applied was unfair and to suggest that maybe it should be removed – particularly because they were unable to provide evidence of the review which recommended that the marker should not be applied.

We can help you with an action like this – but you are getting into risky territory.

 

Did they actually offer your payment in compensation for failing to observe the procedures?

[BankFodder]

Have you ever reported this to the police?

[BankFodder]

That's okay – and we will help you. However I think you need to have a look at the BCOBS rules and understand them and also appreciate that the bank are likely to rise up and muster all possible resources to defeat you.

For the bank to have a judgement involving BCOBS against them would be quite serious for them even if it is only for a very small amount of money.

Also, you need to be aware that if the court refused to exercise its discretion and to make a costs order against you that it could be quite substantial.

The basis for you refusing an offer from the bank would be that the larger issue of the CIFAS marker against you and the effect it has had on your life and the fact that it is continuing means that it is reasonable for you to continue your litigation.
It will be up to the judge whether they want to have some sympathy with that view. I think that it is a very reasonable view – given that we are talking about a breach of statutory duty and they have effectively admitted that they have treated you unfairly and therefore they are in breach.
However you can be certain that you will receive lots of intimidating correspondence from the bank if they realise that you are going to reject their offer. Of course I am assuming that they are going to make you an offer – but I can't imagine that they won't because they will consider the amount of money that you are claiming is so irrelevant compared to the reputational damage they would suffer if the judgement went against them, that they would be prepared to go to great lengths to persuade you to withdraw the case.

Of course another possibility – although probably remote – is that they might agree to review their CIFAS decision once again – but without admitting any wrong so that they simply correct the record rather than erase it and also you would agree not to demand any compensation for the injustice that you have suffered so far.
This could be a working compromise if you are happy to accept that. It would mean that your credit file would be corrected and you could open a bank account and get insurance et cetera although the record will still be against you for the amount of time that the CIFAS had been on your file.

Of course this is all speculation.

But you need to make sure that you are familiar with BCOBS and that you are prepared for the stress of bringing the County Court action against a furious defendant

[BankFodder]

I think you need to make a crime report to the police and get a crime reference number.

[BankFodder]

Do your reading and understand BCOBS and the steps involved in taking a small claim in the county court first.

 

Then you can start sending letters.

 

Slow and steady.  You can send a letter of claim next Monday if you feel ready

[BankFodder]

where did you take out your account?

[BankFodder]

I know that they have a London address. Find the London address

[BankFodder]

They have an office in Newcastle as well

[BankFodder]

Of course the action suggested above is entirely possible – it means that you would have to start a part 8 claim and this is far more complicated and most importantly it doesn't put on the small claims track. This means that you would immediately become liable for costs in the event that you lost your action.

If a judge decided that the OP had not been treated unfairly – and that the CIFAS marker was the correct decision, then the case would be lost and the OP would be liable for quite a lot of costs.
As soon as the bank realised that the claim was not on the small claims track, you could be certain that they would invest a lot of money into defending the action – confident that they were racking up costs which would be the liability of the claimant.

So although an injunction would be the ideal situation, it's extremely dangerous. The less risky way to do it is simply to claim for a modest amount of damages and then see what develops from there. Although you wouldn't get an injunction, it might be that the judge would express a view and I think it would be difficult for the bank to ignore that view.
Certainly if a judge considered that the CIFAS marker should not have been applied – then it could open the door to bringing a separate claim for an injunction with a little bit more confidence and considerably less risk