Claiming back bank charges - Hardship cases - Help needed please

[so*fed*up]

"you are in very difficult financial circumstances – 'hardship cases'

If you have a case of genuine financial hardship, your bank or building society must deal with your complaint – see the Banking Code for how they can help. If you're not happy with the firm's response to your complaint, you can take it to the Ombudsman, who will consider whether your complaint can be dealt with before the test case is resolved."

We have 'very difficult financial circumstances', and were just about to issue a court claim against Halifax for almost £1k - money which we were relying on to help us out with a very very skint situation (mainly council tax arrears - we have loads of other debts too).

 

If anyone can help out with a letter to Halifax, we would be so grateful, and I'm sure others would too

[shazzaW]

This is a very interesting point as I imagine that the reason most of us are trying to reclaim our charges are that we have either been or more importantly are currently in financial hardship.

 

I've looked at the Banking Code but cannot find anyone mention of what constitutes Financial Hardship.

 

Can anyone shed any light on this and what the banks / FOS are likely to consider when be prepared to carry on looking at a case and not put on hold with all the others??

 

This could be the answer for many claimants who simply cannot afford to wait for 12 months plus for their case to be considered.

[so*fed*up]

bump!

[shazzaW]

Bump and bump again!!

 

Surely there has to be a good deal of people who are in financial hardship due to the excessive charges incurred that would mean that the decision of the OFT case test is simply not relevant??

 

If you are in financial hardship then the OFT and banks will continue to investigate your case irrespective of the test case - again I ask what does anyone think constitutes financial hardship as I can see nothing on the Banking Ombudsman website.

 

As an example, I'm a housewife, hubby unemployed through no fault of his own, we're struggling just to pay the mortgage each month and have credit card debts that we cannot pay each month.

 

Can we ask the FOS to continue investigating our case on the basis that we simply cannot wait for upwards of 12 months to reclaim our estimated charges of circa £3,500???

 

Would truly appreciate anyones advices.

 

shazzaw

[so*fed*up]

Please help us folks!!

 

There's lots & lots of us here that currently have severe financial difficulties and/or are reliant on benefits.

 

If the mods could get together a letter that we could send stating our circumstances, it would be so very helpful.

 

I am totally useless at writing letters & knowing the correct words to say.

 

Please help - we would appreciate it so much

[hbos-employee]

The banks are actively ignoring hardship cases and treating them the same as any bank charge claim. The more people who contact the fsa about this the better chance that something would be done. I wouldnt hold your breath though...

[baconbuttyman]

i FOUND THIS ON PENALTYCHARGES.CO.UK, ITS A NEW POC FOR PEOPLE IN RECIEPT OF BENEFITS, ACCORDING TO THIS YES YOU CAN AND IT SHOULD BE TREATED DIFFERENTLY THAT A NORMAL CLAIM BECAUSE YOU ARE ON BENEFITS

 

 

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[Goldlady]

Guys if the banks have taken charges out of benefits you have a right to get them back right regardless of all the OFT carry on. There is a letter which I sent the Halifax last year and I can't find it - but it basically states that under the Social Security Administration Act they have no right to take charges out of benefit money. You can also stop them taking charges out of future benefit payments - this is called an arrestment of benefits. I will keep searching unless some other more knowledgeable person can find it for you.

[Goldlady]

I rest my case

[silou]

The way to proceed for those on benefits seems pretty clear but can anyone shed any light for those of us not solely reliant on benefits but who still consider ourselves to be 'hardship cases' what can we do to convince the bank FOS that this is the case and that our claims should continue to be considered? For instance in my case a split from my husband has left me with a considerable lump of my wages being taken up by mortgage repayments each month (on which there is some arrears) and numerous credit card debts (which I am repaying by way of a DMP). The charges that I am trying to reclaim would pretty much clear all of this debt and leave me in a much better position financially each month. If I have to wait upwards of a year to maybe get these charges back that will only serve to make my position worse with each month that passes. Would this be classed as hardship?

[so*fed*up]

Many thanks for your replies

 

I'm off to the court today to file my claim.

 

Just to clarify - we receive WTC, CTC & Child Benefit - are these acceptable benefits to be using the POC in this thread?

[vincymum]

Just looked at the penaltycharges.co.uk website and found a list of benefits re the above POC; I can see Child Benefit on there but none of the others. However IMHO Child Benefit is for the kids, so I'd have a go.

Looking again at the POC, according to the POC section 1(B) mentions

b) any income related benefit, or

c) child benefit.

 

WTC, CTC are all income related n'est pas?

If it was me I would crack on. (I think I need to adopt these POC's myself!)

 

 

All advice offered is without predjudice and without liability. If in any doubt, consult a qualified legal practitionner.

[nevos]

If you have a case of genuine financial hardship, your bank or building society must deal with your complaint – see the Banking Code for how they can help. If you're not happy with the firm's response to your complaint, you can take it to the Ombudsman, who will consider whether your complaint can be dealt with before the test case is resolved.

 

Consumers who are in very difficult financial circumstances - 'hardship cases' Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.

[steven4064]

Hi so fed up - have you seen the threads on this site - like mine. The POC above is likely to get stayed as it still relies mainly on arguments relating to contract penalties and unfair terms. Also that POC as written doesn't apply to Child Tax Credit or Working Tax Credit.

 

The POC on my thread does cover these other benefits and relies only on the charges being unlawful by virtue of the acts governing payment of benefits. You cah therefore argue that the OFT case is irrelevant if the bank goes for a stay.

[deadlykiss]

my N1 handed into courts but if they ask for stay then im gonna try the way Stevens gone ,, got to be worth a try will keep you all posted halifax got til 13th to aknowlege so hang in there peeps

[steven4064]

Also in discussions today we have realised that the POC posted above from penaltycharges is incorrect in its appliction of the SSAA 1992.

 

We also think the case law quoted only applies to Scotland - but we're checking that.

 

My advice - don't use it.

[tomterm8]

Many thanks for your replies

 

I'm off to the court today to file my claim.

 

Just to clarify - we receive WTC, CTC & Child Benefit - are these acceptable benefits to be using the POC in this thread?

 

all tax credits are inalienable (sperate law) and so is child benefit (same law) see http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/108952-claim-charges-taken-benefits.html

 

 

I would define hardship cases using the common law definitions of poverty BBC - Poverty - Definitions

 

edit: eh? Steve moves fast:)

[steven4064]

thanks tomterm

 

The discussion on inalienability of benefits needs some honing - see the linked thread in post 17.

 

so*fed*up - if you haven't filed at court please see post 16 above.

[mrsfoot]

Hello all

 

I have some knowledge and experience with regards to the SSAA1992 and its application to the bank charges.

 

If you need help with them please PM me your details and I will help. This unlawful practice (according to SSAA 1992 section 187), which continues even though the banks have been made aware, needs to be stamped on immediately.

[mrsfoot]

I have a set of POC for Benfit related claims. In my opinion the one above crosses over into penalty charges to easily and therefore may cause confusion. I suggest you only use the SSAA 1992 as it is in black n white that they cant take it, if you keep crossing over onto penalty claims then it becomes wishy washy.

 

Here are my POC for anyone who wishes to use them.

 

Brief Details:

The Claimant has an account with the Defendant XXXXXXXXXXXXX and this is conducted on the standard terms and conditions. The Claimant contends the charges applied to the account are unlawful in accordance to Social Security Administration Act 1992 section 187. This applies to charges being held against any benefit that is received by a claimant via an income related benefit. The Claimant is in receipt of XXXXXXX and XXXXX which is rendered unalienable under this Law.

The Claimant understands that, under the contract between them and the Defendant, there is a penalty for a breach, in this case for unpaid Direct Debits / Unpaid cheques. However as this is the only income for the Claimant, and the law is very clearly set out with regards to the usage of the benefit for charges. The Claimant has contact the Defendant on numerous occasions to ask for them not to take the said benefit, however this Bank has continued with this practice which has resulted in this action being brought.

Particulars:

1. The claimant has account XXXXXXXX with the Defendant. This is conducted on a standard terms with a clause included for a charge to be paid by the Claimant to the Defendant on the breach of the agreement. In this case this is for the returned DD and unpaid cheques against the account.

2. A breakdown of charges and amount claimed is attached.

3. During the term of the account the Claimant has been in receipt of an income related Benefit, namely XXXXXXX/XXXXXXXXX. This is an amount which is given to the Claimant at a level set by Department of Working Pensions. (if only past of the term was in receipt of benefit only put this time into here)

4. For the claim the Claimant relies on the Social Security Administration Act 1992 s 187 which renders any income related benefit inalienable. The Defendant has been aware of this since XX/XX/XX when the Claimant first requested the refund of this money; however the Defendant has continued to apply charges to this benefit.

5. Accordingly the Claimant claims

(a) The amount applied in charges to the account £XXXXXX

(b) Court Cost (if on benefit this will be nought and should be deleted)

© Costs in relation to bringing this case for which a breakdown is attached (DPA cost + postage)

(d) Interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from [date when the money became owed to you] to [the date you are issuing the claim] of £ [amount] and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of [enter the daily rate of interest]

 

Dont forget to attach your charges and costs spreadsheet!!!

[steven4064]

Thanks MrsFoot

 

In fact it was one of your posts that started me off down this road.

 

I have a set of POC for Benfit related claims. In my opinion the one above crosses over into penalty charges to easily and therefore may cause confusion. I suggest you only use the SSAA 1992 as it is in black n white that they cant take it, if you keep crossing over onto penalty claims then it becomes wishy washy.

Not just that, it is likely to get stayed pending the outcome of the OFT case.

 

There is a problem though which I am trying to bottom out at the moment. On the face of it, it should be plain sailing to show unlawfulness of charges under the SSAA 1992 (and the Tax Credits Act 2002). However, it appears that both those Acts use the word 'charge' in a specific, technical way and do not mean charges in the sense that we do when we talk about bank charges. These charges are defined in the Crown Procedings Act 1947 and mean legal charges such as an attachment of earnings.

 

It appears that we may be able to argue that they are an assignment (the acts say that assignments and charges are void) but Zootscoot tells me that an assignment is only an assignment is it is agreed. in this case it is agreed because it's in the bank's T&Cs which we agreed to. However, that agreement is also void under the Acts. So it becomes slightly circular. THe bottom line is that the bank's T&Cs that allow them to take money from benefits are void. Therefore there is no contractual provision that allows them to make charges.

 

In your case, MrsFoot, you settled out of court so all this didn;t matter. However, we now want a case that will stand up in court - hence the discussion above.

 

Any contribution to the debate gratefully received.

[mrsfoot]

Your correct in thinking claims I have helped with have all been settled before the court hearing, but the POC details are the same.

 

To make it solid i would suggest using the T&C as the contract. This allows the bank to apply a charge to your account (agreeing to the assignment). If you were not on benefits at the beginning of the contract but this happened later on in the life of the account the bank still have the right under the original contract to assign a charge but this is now void under the Acts, leaving the charges unenforceable and should be refunded to the client. I imagine a couple cases need to be put to court to check validity (as with everything) but I cant see the banks winning these cases.

 

I also suggest the claimant to have completed a right of appropriation and kept copies of each one handed into the bank. This is evidence that the bank was aware of the customer being on benefits and therefore did not comply with the Act in not assigning charges.

 

oh if only the banks used manual intervention they would see the changes happening to an account, realise the customer is now on benefits and stop charges being applied

[steven4064]

THe banks cannot say they don't know. On my friend's account, every payment is identified as a benefit. They also know the law. It is not rocket science to program the computer to recognise benefit payments.

 

In my friend's case, he was already receiving all his income from benefits when he opened the account.

 

If the OFT case finds in favour of the banks then it will be complicated for accounts with some income coming from benefits - but we'll cross that bridge when we come to it. The Govan Law Centre advises people in Scotland to have a seperate account for their benefits becasue of this.

[SOMEFRIENDLYUK]

i'm going to use financial hardship in my case if they go for a stay. I'm sure there was something in the wavier about financial hardship cases must be allowed to continue. I will have a look about.

[SOMEFRIENDLYUK]

ps -i'm not on benifit so my argument will not be that route but possible loss of my house and other problems -i really don't think they can be argued against in court -of course the banks will try as they really don't give a s**T