Aviva fraudulently processed my data without authorisation o

[Manxman in exile]

On 24/04/2021 at 15:35, BankFodder said:

...
Part of this also is that they should have challenged the chargebacks and they should have recognised that their contract was with you and that although the payments were being made directly by a brother, in fact the payments were from you ...

 

 

Apologies if I've got this wrong and am muddying the water, but why on earth would the OP want to argue that Aviva had a contract with her and not with her brother? 

 

Surely the whole basis of any argument put forward by the OP should be that she never had any knowledge of her brother's application to Aviva, that she never authorised him to make any such application on her behalf, and that she never (either by herself or through her brother) entered into any contract at all with Aviva?

 

Also, I cannot for the life of me understand the FOS decision if the facts of this case are as the OP says.  The FOS seems to have completely ignored the fact that the OP never entered into a contract with Aviva, preferring instead to examine whether Aviva adhered to their own internal procedures.  According to the apparent FOS logic, if Aviva had a policy that said "We will do everything wrongly and defraud the customer", then Aviva would not be at fault if they did just that. 

 

I do not understand how the FOS can decide that party B ends up in a contractual relationship with insurance company A because party Z has fraudulently held themselves out to A as acting on B's behalf.  It's unbelievable!

 

The only issue I can that may reflect on the OP (and I wonder if this influenced the FOS decision) is that the OP could possibly be argued to have been fronting for her brother when she* took out the original policy in July 2015.  But that wasn't with Aviva so I dont think what happened then is relevant to the current issue.

 

 

*From my reading of the FOS decision, that original policy was actually taken out by the OP herself with her brother as named driver.  (Sorry if that is wrong and has been corrected but I've missed it)

[Manxman in exile]

Bankfodder - I understand.  I see Aviva as the victims of fraud and the fraudster is brother Z.  The OP appears to be an entirely innocent and unknowing third party.  I can understand why Aviva have involved her, but upon being made aware of the facts they should have left her alone and apologised for having allowed this to happen in the first place.

 

I still can't understand how on earth the FOS can have come to the view that Aviva have treated the OP fairly and reasonably?  I'd like to see them have to justify their decision on the facts as we know them.

 

(I still wonder whether the original insurance policy purchased by the OP in 2015 has clouded the view of the FOS).

 

I'm inclined to agree with BF that the police should be involved as - on the face of it - this is a very serious criminal offence and appears to form part of a prolonged and deliberate pattern of criminal behaviour (and victimisation of the OP).  And, of course, police involvement is more likely to help than hinder the OP's case.

 

The only issue I see for the OP is whether police involvement is likely to be a problem from the point of view of future family relationships and bad feeling?

 

I also agree that as much capital and leverage as possible should be made out of Aviva's hypocrisy concerning domestic/economic abuse/safeguarding.

[Manxman in exile]

I wasn't thinking so much of your relationship with your brother as with other family members (and extended family).  Would they not care if you "shopped" him to the police?

[Manxman in exile]

"Under the rules of the Financial Ombudsman Service, I'm required to ask Mrs B to accept or reject my decision before 11 May 2021".

 

I'd have thought it's a no-brainer isn't it?  You need to inform the FOS you are rejecting the decision irrespective of whether you get a reply to any SAR.  I don't see that any SAR response could possibly lead you to accept their decision.

 

(Unless I'm missing something obvious, there is no downside in rejecting the FOS decision, is there?  I presume there are no costs involved?)

 

 

[Manxman in exile]

Sorry - not made myself clear.

 

Yes - I agree it would be best for the OP to explain why they are rejecting the FOS decision, but they must not miss the date given by the FOS to reject* their decision just because they have not yet received replies to all the SARs they have sent out.  They should meet that rejection deadline whatever responses they have or have not received.

 

If necessary I would tell the FOS something like "I hereby notify you that I reject the FOS decision reference xxxxxxx and I shall supply detailed reasons for that rejection pending receipt of replies to SARs I have requested".  If the OP has not received any replies she needs to get that holding rejection off to the FOS in time for 11 May - so there isn't much time left.

 

And I agree that the FOS finding that because Aviva followed their internal procedures they have not done anything wrong is clearly barmy as the internal procedure they have followed will inevitably result in something going wrong because it is flawed.  It is clearly wrong that the OP could be held to have entered into a binding contract with Aviva simply on the assertion by her brother that he was acting on the OP's behalf and where Aviva made no attempt to verify that assertion.  It's clearly wrong otherwise people would be entering into legal contracts that they knew nothing about all the time.

 

I also agree that the FOS investigation does not seem to have invited much involvement from the OP, but I am also concerned that the FOS decision has clearly been based upon evidence that Aviva wrote several times to the OP (eg renewal letters) but the OP is adamant that nothing was ever received.  I think that is a gap that has to be closed by the OP, and when it is it will make the FOS decision unsustainable.

 

*I note that the FOS decision does not say they need reasons for rejection by 11 May, simply notification of rejection.  I would suggest there is nothing to stop the OP saying "I reject your decision - reasons to follow pending SAR"

 

PS - just noticed OP has cross-posted.

 

EDIT:  Having just read the OP's recent post I think the emerging pattern of criminal behaviour by her brother just reinforces the OP's case.  To be honest, I am surprised AVIVA continue to pursue this as it shows them in an appalling light.  If I were contemplating becoming a customer of theirs, I would be put off.  I don't want my insurer being a victim of insurance scams because they don't have proper procedures in place to safeguard their own position and their other customers.  It's the customers who will end up paying for writing it off.

 

 

 

 

 

 

Edited May 6, 2021 by Manxman in exile

[Manxman in exile]

Ah ok - FOS have granted an extension to the rejection deadline.

[Manxman in exile]

I apologise if I've missed it in the previous eight pages, but did you send a letter of complaint to Aviva on 09 April?

 

I'm a bit confused because I had presumed that because this had all been investigated by the Ombudsman and they had produced a final report, that you must already have exhausted the formal complaints avenue with Aviva, and that they would investigate it no further, leaving you only the Ombudsman to resort to.

 

I think I must be missing something but I don't know what... 

[Manxman in exile]

Ah - I see you only came here on 20 April - it seems longer ago!  That letter from Aviva reads as if they do not realise you have already complained to the Ombudsman and that you have already received a decision from the Ombudsman(?).  Was the complaint you made on 09 April the same one the Ombudsman investigated or a different one?  I'm not sure how it got to the Ombudsman if Aviva were still dealing with it?  I'm still confused.

 

I'd be inclined to engage with that letter as there may still be a glimmer of hope that they will see sense.  If their CEO really wants to be kept abreast of this, I can't believe she'd be happy with the decisions Aviva have made here.  But see what BabkFodder advises...

 

If Aviva backtrack on this it gives you more ammo for a complaint against the FOS decision - and if I were you I would complain.

 

EDIT:  We've cross-posted

Edited May 8, 2021 by Manxman in exile

[Manxman in exile]

9 minutes ago, Titchytitch said:

@Manxman in exile the ombudsman was dealing with the complaint ive not rejected decision yet as ive got an extension I sent a SAR on the 23rd April along with disclosure of the abuse policies they sent me a letter 5th May asking me to verify my identity on the 7th May ive emailed them on the lines of theyre creating obstacles when they have all my information and threatening legal action if I don't get the information in the 30day period  and today I've received this letter in the post 

Part of me is thinking I should email the person asking what complaint is she referring to and maybe put my case forward as now the CEO is involved 

 

I understand all that - but why are Aviva writing to you now about your complaint dated 09 April?  What did you send them on 09 April - what complaint did you make?  The Ombudsman only deals with complaints after the complaints procedure with Aviva is exhausted.  That letter suggests Aviva had not finished dealing with your complaint.  

 

That letter has nothing to do with your SAR requests.

 

As I posted above, I'd be inclined to engage with them and see if they can treat you properly this time.  But if I were you I'd wait to see what BF advises.

 

EDIT:  Cross-posted again.  So you have no idea what complaint dated 09 April they are talking about?

Edited May 8, 2021 by Manxman in exile

[Manxman in exile]

So what is that posted by BF which appears to be from you (???) and in which you refer to "my letter of 9 April"?

 

(Apologies if I've simply added confusion to this by missing earlier correspondence!)

[Manxman in exile]

Ah - OK!  There was no explanation in #207 who that message was from - I thought BF was referencing something you had previously sent to Aviva.

 

I still don't understand why Aviva are still corresponding with you about a complaint where the Ombudsman has already made a final report?

 

They are obviously even more incompetent than your experiences already tend to suggest.

 

(I think something has gone seriously wrong here at Aviva and/or the FOS.  I can't believe Aviva even contemplated pursuing you in relation to the alleged debt, and I'm even more incredulous that the FOS did not uphold your complaint.  I think you'll end up making more complaints to both of them!)

 

Could I perhaps suggest tweaking the proposed response to Aviva?

 

What Aviva have sent to the OP today is clearly not connected to any SAR that has been made.  So rather than having several opening paragraphs referring to the SARs and their obligation to respond to them, might it be better for the main part of the proposed response to start with the para that begins: "If Amanda wants to demonstrate her personal interest etc etc... " and continue from there?

 

By all means mention the SARs at the end of the response, but by beginning with them rather than beginning with the substantive complaint (which is why did they let Z take out insurance in the first place and why are they now pursuing the OP) I'd be concerned that the response is detracting from the fundamental matter the OP wants addressing (which is not a response to any SAR).

[Manxman in exile]

Well we can agree to differ.

 

My concern is only that the letter to the OP from Aviva has clearly been sent without knowledge of any SARs made and appears to be suggesting that the CEO wants to take an interest (Ha!) in whatever substantive complaint they think the OP sent them on 9 April.

 

I would not want to encourage Aviva any further to get distracted from dealing with my substantive complaint by starting off my response to them by referring to SARs which the recipient in all probability will have no knowledge of.  

 

I think the emphasis of the response ought to be on the CEO acquainting herself with the facts of the case (which their letter appears to suggest she wants to do) and for her to agree to cease pursuing the OP for what is an entirely spurious debt, rather than reminding Aviva that they are legally obliged to respond to SARs.  By all means include a reference to the SARs at the end of the letter (and complain about how they have handled them to date), but they should not, in my view, be the opening focus of the response.

 

At the end of the day, the OP isn't really bothered about whether Aviva respond to an SAR or not, she simply wants them off her back.

 

But as I say, we can agree to differ.

 

(And I still don't understand what is happening here.  What the OP ideally wants now is for the CEO to take an interest (Ha! again... ) in the case, look into it and come to the right decision from the OP's point of view - but without realising that the FOS has already ruled in Aviva's favour.  It's crazy).

 

And the OP must remember to meet the FOS extended rejection deadline whatever else happens.

 

 

[Manxman in exile]

OK.  so Aviva have told you that they will respond to your SAR by 26 May which gives you about four weeks (up to 22 June - is that right?) to review what they tell you and to tell the FOS that you reject their final decision about the insurance policy.

 

Make sure you don't miss the extended FOS deadline.

 

(bearing in mind their response above to your complaint about how they handled your SAR, I personally see no point in carrying that complaint further.)

 

 

[Manxman in exile]

No - that's me...

[Manxman in exile]

No worries!

 

You don't want to get BankFodder mixed up with me -  they give proper advice you should listen to!

[Manxman in exile]

Eh?  Arrest and lock up the economic commissioner or your brother?  Or someone else?

 

[Manxman in exile]

I don't know if BankFodder would agree, but I might be inclined also to point out to Aviva that another loan provider has accepted that your brother acted fraudulently in similar circumstances to the Aviva insurance policies, and that the police have told you they are going to arrest him for fraud.  (Have I got that right or made it up?).

 

I'd ask Aviva if they really are happy to keep defaulting you in these circumstances.

[Manxman in exile]

BankFodder - apologies if this has already been covered and I have missed it (12 pages!), but should the OP be trying to extract from Aviva a copy of their internal policy or whatever which (apparently) allows them to accept instructions from person Z to open a policy for person A without having to check with A?

 

In #286 the OP says she was told by the person from Aviva who called her that:  "... the handler who checked with manager was in the wrong they had no need to check... " that the OP had authorised Z to open the policy on her behalf. 

 

It seems a very risky way for Aviva to conduct their business... 

[Manxman in exile]

A couple of reasons why you should not send that and wait to see what BankFodder thinks.

 

1.  I agree with this bit - "As a company I would like a copy of your internal policy/procedure which allows you to set up an insurance policy without the knowledge of the supposedly main policyholder, or which requires no authorisation from them to enter into a credit agreement or contract" - but BankFodder may think you should not ask for this.  Wait for them to comment.

 

2.  I do not think it a good idea to question the independence and integrity of the Ombudsman's adjudicator in a communication with Aviva.  No good can come from it... 

[Manxman in exile]

23 hours ago, Titchytitch said:

@BankFodder 

 

...  The role of the Independent Assessor

 

The Independent Assessor’s role is to review the practical handling of cases investigated by the Ombudsman Service. Practical handling covers customer- service related concerns such as, delays, staff attitude, lack of correspondence, not advising of the right to an Ombudsman review, etc.

 

It is not the Independent Assessor’s role to review a case against the financial business or to assess how the Service chose to investigate the matter.

 

The investigation of a case, including the information requested, the weight attached to the information and the outcome of the case all fall within the judgement of the staff of the Ombudsman Service, as does who is assigned to a case. The Independent Assessor cannot challenge the Service’s judgment on any of the above as set out in her Terms of Reference.

 

Nor can the Independent Assessor’s comment on or change the Service’s processes including the way it trains its staff, who it employs, its investigatory methods or any procedures or policies it adopts... 

 

 

That all seems contradictory to me.  I don't see how the way an investigator or ombudsman investigates a case can be distinguished from the "practical handling" of a case - the latter obviously includes the former.  (A person could complain to the FOS and the FOS could decide that its investigation would not include gathering any evidence from the complainant, and then find that the company being complained about had done nothing wrong.  That would clearly not be right, but according to the above the Independent Assessor would be unable to question it!)

 

In this case I'd have thought the practical handling to complain about is the apparent reliance of the FOS on Aviva's assertion that they have correctly followed their procedures - without any indication that the FOS have actually seen that procedure and measured Aviva's conduct against it.  On the face of it, the FOS decision appears to mean that anybody at all (X) can ring up Aviva and take out an insurance policy on behalf of somebody else (Y) without Aviva carrying out any checks at all that X has Y's authority to proceed.  And that Aviva can then hold Y liable to pay the premiums!  I personally find it very difficult to believe that Aviva has a policy that says that that is OK, and I find it even harder to believe that the FOS condones that.  I find it difficult to avoid the conclusion that there is some miscommunication here, 'cos none of it makes sense.  I do not understand how the FOS could have reached their decision - it appears perverse.

 

I seem to recall the OP might have other grounds to complain about the practical handling?  Am I right in thinking the FOS contact with the OP in respect of the investigation only consisted of some 'phone calls and no written statement or submission etc that they could keep a copy of?  Clearly unsatisfactory in my view.  (Apologies if I'm mistaken on that point but that's what I seem to remember).

 

 

[Manxman in exile]

We cross-posted.

 

Don't do anything until BankFodder advises, but....   if I were you I'd be inclined to reply to Mr Futer along the following lines:

 

Dear Mr Futer

 

Thank you for your letter dated xxxxxxxxxx.

 

Before I decide whether I wish to take this any further I should be very grateful if you could confirm that I have correctly understood the FOS decision and the content of your letter.

 

In my case my brother (is that right OP?) contacted Aviva falsely claiming to take out an insurance policy on my behalf and with my authorisation.  This was untrue and there has never been any evidence to suggest it was true for the simple reason he was not acting on my behalf and did not have my authorisation.  Aviva did not carry out any checks to confirm that what he was telling them was true, never attempted to contact me to confirm my authorisation, and accepted his false claim to be acting on my behalf without question.  Aviva put an insurance policy in place based on his false claims and supplied confirmation and documentation etc to email addresses belonging to him and under his control.  (Is that correct OP?)  None of these documents were ever delivered to me and I never read them.

 

I only became aware of the policy when my brother defaulted on paying the premiums and Aviva attempted to pursue me for payment and put a default on my credit report.  (Or whatever you are complaining about, OP).

 

My understanding of the outcome of the FOS decision into my complaint against Aviva for taking this action against me is (1) that the FOS does not uphold my complaint and (2) that the FOS believes that Aviva have conducted themselves properly throughout.  Can you please confirm that this understanding of the FOS decision is correct?

 

You may be interested to know that my brother attempted similar frauds against other insurance companies but only succeeded in defrauding Aviva because the other companies concerned were sufficiently competent to carry out appropriate checks.  My brother is now under investigation by the police for these attempted frauds and also for the fraudulently obtained Aviva insurance policy.

 

Again, I should be grateful for your confirmation that I have correctly understood the FOS decision before I decide whether or not to take further action.

 

Yours sincerely,

 

That's what I'd do at this stage, but whether it's a good idea or not I do not know.  To me it has the benefit of clearly outlining what seems to me to be a totally perverse decision contrary to common sense, and putting them on the spot either to defend it or to say that you have completely misunderstood what the decision says.

 

But I am not a lawyer so don't do anything at the moment and certainly don't just do what I say!  See what others  - particularly BankFodder - think.

 

(Obviously, if you do send off anything like my letter, make sure everything is accurate, true and correct - I've had to make certain assumptions because I'm not sure of all the details)

[Manxman in exile]

The point of my suggestion above is that you are not asking the FOS to review the decision or re-investigate or anything like that.  You are simply asking for confirmation that you have correctly understood the FOS decision.  I can see no objection from the FOS in you asking for that confirmation as a layman.

 

Hopefully, if somebody actually reads your account it might raise a question mark in somebody's head about the decision they (appear) to have made.  Or, they might come back to you and explain why you have misunderstood.

 

Good luck!

[Manxman in exile]

3 hours ago, BankFodder said:

...Although the approach to the ombudsman has not produced the decision in your favour, he has produced one very valuable piece of information and that is Aviva's own description of what happened including the fact that their own call handler had doubts and had to refer to a manager. Also, the very detailed description of what happened and how it was set up and the fact that it is clear that they were effectively prevented from speaking to you when the policy was set up and that there had been no contact with you throughout the duration of the policy, is extremely helpful.
I doubt whether you would have gotten such a clear and detailed explanation if this had simply been litigated...

 

Maybe I've missed it - and apologies if I have - but that "valuable piece of information" isn't in any way connected to anything from the ombudsman, is it?  I thought that information had come directly to the OP from somebody at Aviva who telephoned her and said that the call handler to whom her brother originally spoke had never needed to refer the call to a supervisor/manager for approval in the first place?  Unless Aviva recorded it I'm sure it's deniable... 

[Manxman in exile]

1 hour ago, Titchytitch said:

@Manxman in exile its recorded in their notes that the call handler checked with the manager before going ahead and setting the policy up as she had reservations 

When Stephen Stuart rang me he said he had evidence that the handler had no reason to question the manager 

 

Right.  So I was mistaken, and that confirmation that the Aviva call handler referred your brother's application to a supervisor or manager comes to you via the ombudsman from Aviva's contemporaneous notes, but the info that the call handler did not need to do that came direct to you from Stephen Stuart (who I assume is an Aviva employee)?

 

Sorry - just trying to ensure it is clear what info came from whom.

[Manxman in exile]

It's probably too late - and if it is I don't think it matters a great deal as I'm sure it's been covered adequately already - but there is one particular aspect of this that nags away at me and might be worth including if not already covered.  And that's to do with the conduct or method behind the ombudsman's decision.

 

The decision seems to be predicated on the finding that Aviva  correctly followed their internal procedures and policies, and that therefore they did nothing wrong.  This seems to me to be blatantly flawed logic in the conduct of the investigation and leads to a manifestly unfair outcome for the OP.

 

It would appear from the ombudsman's investigation and decision that Aviva has a policy which allows person A, purporting to be acting on behalf of person B, to contact Aviva and to open an insurance policy in the name of person B, and that person B can be held contractually liable under that policy without ever being aware of its existence, and without Aviva even checking that person B has given person A authority to act on their behalf.  The ombudsman appears to have decided that because Aviva followed their internal procedures/policies (no matter how stupid, unreasonable or unfair they might be) then they cannot have treated person B unfairly or unreasonably.  That is outright bonkers and cannot procedurally be correct.

 

What that means is I could contact Aviva and, purporting to be acting on behalf of HM Elizabeth II, open a policy in her name insuring a fleet of bulletproof Rollers.  And when HM failed to pay up on the premiums, Aviva could put a default on her (good luck with that by the way) and if HM complained to the ombudsman they would simply say:  "Very sorry Ma'am, but I'm afraid you haven't been treated unfairly or unreasonably in this instance".  I don't think so!

 

I cannot believe that the ombudsman can be right to reject a complaint simply on the grounds that the insurance company followed its policies if those policies are inherently and manifestly unfair, unreasonable and downright stupid.  And in this case I'd go further - the policies enable and are complicit in the potential commission of fraud against innocent third parties.

 

So, the point I'm making is that if the ombudsman follows what appears to be their own procedural rule or methodology that so long as the subject of the complaint follows their own policies then the complainant cannot have been treated unfairly etc, then that is manifestly wrong if the policies in question are unreasonable or unfair ab initio.  This point applies to ALL ombudsman investigations and not just the current one.