Claim for charges taken from benefits

[steven4064]

I am taking a rest from suing NatWest to take on Halifax on behalf of a friend. This is slightly different from other bank charge claims because we are not claiming that the charges are unlawful contract penalties (although we believe they are) nor are we claiming they are unfair under the UTCCR 1999 (although we believe they are).

 

In this case, all his income comes from Income Support and Child Tax Credits. Therefore we are reclaiming the charges on the basis that the bank has no right make charges against money from the public purse given to support basic family needs - Social Security Administration Act 1996 and Tax Credits Act 2006.

 

Here is the draft Particulars of Claim

IN THE XXXXX COUNTY COURT

 

BETWEEN

 

Friend of Steven4064, CLAIMANT

 

AND

 

HALIFAX plc DEFENDANT

 

PARTICULARS OF CLAIM

 

1. The Claimant has an Account Number xxxxxxx, Bank Sort Code xxxxxx ("the Account") with the Defendant which was opened in September 2003.

2. During the period in which the Account has been operating the Defendant has automatically debited numerous charges to the Account in respect of referred Direct Debits. These charges have caused the Account to become overdrawn, which has in turn led to the Defendant debiting the Account with further charges. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges (“the Schedule”) applied is attached to these Particulars of Claim.

4. Since August 2003, the Claimant’s entire income has been derived from Income Support and Child Benefit paid by the Department of Work and Pensions and Child Tax Credit paid by HM Revenue and Customs. This money does not belong to the Claimant but is public money to be spent on the basic needs of the Claimant and the Claimant’s family.

5. The Claimant contends that the charges debited to the Account and detailed in the Schedule constitute assignment by the Defendant and to the Defendant of moneys paid to the Claimant in state benefits and are therefore unlawful by virtue of

a) s187 Social Security Administration Act 1992 regarding Income Support and Child Benefit, and

b) s45 of the Tax Credits Act 2002 regarding Child Tax Credit.

6. The defendant has, in addition, levied interest on these charges which is also detailed in the Schedule.

 

7. Accordingly the Claimant claims:

a) the return of £xxxx (xxx Pounds Sterling) taken by the defendant in charges detailed in the Schedule and interest applied on the charges of £xxx (xxx Pounds Sterling and xx pence);

 

b) court costs;

 

c) interest under section 69 County Courts Act 1984 at a daily rate of 0.022% (8% per year) up to the date of judgement or earlier payment.

8. The Claimant also respectfully asks the court to make an order requiring the Defendant to cease making charges in contravention of s187 of the Social Security Administration Act 1992 and s 45 of the Tax Credits Act 2002.

I believe that the contents of these particulars of claim are true

Any comments gratefully received.

[steven4064]

I come across an awful lot of people in this situation. Banks seem unaware of appropriation or disinclined to adhere to it. It causes untold misery and the states money is taken from the mouths of babes. Thats the reality.

That's the reason we are doing it. Thanks for the support.

[steven4064]

Steve, I would also include the other (normal) arguments.

 

However, you're sure to win:)

We thought of that but decided not to so that it doesn't get stayed. We can go back and claim earlier charges (when my friend was earning) after the OFT case.

[steven4064]

(If only I knew how to post a link!)

You'll find how to do that and lots of other things here

[steven4064]

Wish I had found this thread earlier.

I only started it yesterday!

[steven4064]

I don't believe it! - got a standard letter from Halifax blah blah OFT case blah blah. Don't they READ letters we send them - made it perfectly clear we were claiming under SSAA 1992 and TCA 2002. OFT case is absolutely irrelevant to this claim.

[steven4064]

How far have you got with this Steven?.

We sent prelim and are about to send LBA. However, Halifax are messing us about and not replying to Data Protection Act request - in fact they are now in default on this. It means we have not yet sent a schedule of charges but just requested payment of all charges on the basis that they know what they are and all charges are unlawful, whatever they are.

 

Because this claim is on a differnet basis than all the others, I wanted the POC to be seen and commented on in plenty of time. Current plan is to file in court in 2 weeks so long as we get the statements in that time. We are going to phone the DSAR people in Halifax tomorrow.

[steven4064]

Have you tried asking DWP to write to them ja-de??.

that should not be touching your benefits

We wrote to both DWP and Treasury (Tax Credits) and, so far, there has been a deafening silence.

[steven4064]

Steven4064, why is your friend only asking the 8% interest rather than the compound interest the banks take and which I was advissed, by a site moderator, to ask in my reclaim case?

 

I intend taking Lloyds to task over the charges taken from my account on both counts and requesting the compond interest they charged me. My grounds will be twofolf: unlawful and unfair with the be nefits exempt therefore banks practise being illegal.

 

I'll be watching your/this thread with interest.

 

Btw, is your case in England?

For this claim we could claim loads of things:

 

1) that the charges are contract penalties

2) that they are unfair under UTCCR1999

3) compound interest

4) charges going back over 6 years

 

However, all these things are contentious. We want a 'single issue' claim, hopefully that we might be able to get referred to a higher court so that everyone can benefit (no pun intended!). We also want to go for an injunction to prevent money being taken in future.

 

It is tempting to go for more money - but we want to keep the case simple so that it does not get bogged down in arguments that are secondary to the main issue.

[steven4064]

Thanks tomterm, do you have contact details. My friend is on benefit (obviuously ) and therefore pobably entitled to legal aid. We are exploring that ATM

[steven4064]

OK TT, I'll keep it in mind until I've exhausted the legal aid angle. In fact I have a close friend who works as a debt counsellor for CAB - I'll ask her.

[steven4064]

If you bring a claim in Scotland (against a Scottish bank or possibly if you live in Scotland) then there is also some case law you can use:

Under s187 of the Social Security Administrtation Act 1992 and s45 of the Tax Credits Act 2002 benefits cannot be assigned. The theory is that benefits should not be subject to ordinary forms of arrestment. The principles underpinning the theory are in the Crown Proceedings Act 1947, in common law and in the case of Woods.

 

In the case of Woods v Royal Bank of Scotland 1913 SLT 1 Reports 499, a worker got compensation under the Workmen's Compensation Act 1906 (an early form of benefit) and paid it into a bank account. This case held that the benefit itself could not be assigned to another person. If benefit was plainly identified in a bank account, it should also have statutory protection from arrestment. The money did not change character because it was paid into an account. In the judgement in this case it says, "A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set-off against the same."

Unfortunately this precedent does not apply in England or Wales.

 

The two Acts (SSAA 1992 and TCA 2002) both forbid "assignment from" or "charges on" money paid in benefits. The "charges on" bit doesn't apply to bank charges because it refers to things like attachment of earnings - a legal claim on the money (this is all defined in s27(1)(b) of the Crown Proceedings Act 1947). The point we have to establish is whether bank charges constitute an assigment from the benefits.

 

As the result of discussions I have edited the PoC in the first post.

[steven4064]

not completly sure why s7(b) would limit the meaning of "charge"?

Its a basic problem of definition (and one that penalty charges have misunderstood - see posts 7 & 16 on this thread)

 

In the section quoted above the word 'charge' is used in a legal sense as a legal claim on money, for example an attachment of earnings.

 

My current thinking is that bank charges are an assignment not a charge as far as SSAA 1992 and TCA 2002 are concerned.

[steven4064]

I'm just telling you what I have been advised. The section title is "Attachment of moneys payable by the Crown."

[steven4064]

Finally got a letter in reposnse to SAR today (after 63 days). All they sent was a list of charges!

 

We have sent off a complain to ICO naming HAlifax and Data Controller by name.

 

Still, we have enough info to file at court which we will be doing in the next dya or so. THe letter from Halifax also said "you should be aware that if you choose to issue a claim in the courts the bank will immediatlet apply to the court for an order to stay your action until reslolution of teh bank's proceedings with the OFT" - We will see about that. In fact I'm thinking of putting a note on the N1 or as an attcahed letter to the court pointing out that the OFT proceedings are completely irrelevant to this claim. My court still issues AQs so we shall certainly include something there.

[steven4064]

We have incorporated comments on POC from all you lovely people

IN THE XXXXX COUNTY COURT

 

BETWEEN

 

XXXX, CLAIMANT

 

AND

 

HALIFAX plc DEFENDANT

 

PARTICULARS OF CLAIM

 

1. The Claimant has an Account Number xxxxxxx, Bank Sort Code xxxxxx ("the Account") with the Defendant which was opened in September 2003.

2. During the period in which the Account has been operating the Defendant has automatically debited numerous charges to the Account in respect of referred Direct Debits and the Claimant exceeding his overdraft limit. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges (“the Schedule”) applied is attached to these Particulars of Claim.

 

4. Since August 2003, the Claimant’s entire income has been derived from Income Support and Child Benefit paid by the Department of Work and Pensions and Child Tax Credit paid by HM Revenue and Customs paid directly into the Account. This money does not belong to the Claimant but is public money to meet the basic needs of the Claimant and the Claimant’s family.

 

5. The Claimant contends that the charges constitute an assignment of money by the Defendant and to the Defendant contrary to

 

a) s187 Social Security Administration Act 1992 regarding Income Support and Child Benefit, and

 

b) s45 of the Tax Credits Act 2002 regarding Child Tax Credit,

 

and are thereby illegal. The Claimant contends that the contract terms that the Defendant relies on to justify debiting these charges are void by virtue of the same sections.

 

6. The defendant has, in addition, levied interest on these charges which is also detailed in the Schedule.

 

7. Accordingly the Claimant claims:

a) the return of £xxxx (xxx Pounds Sterling) taken by the defendant in charges detailed in the Schedule and interest applied on the charges of £xxx (xxx Pounds Sterling and xx pence);

 

b) court costs;

 

c) interest under section 69 County Courts Act 1984 at a daily rate of 0.022% (8% per year) up to the date of judgement or earlier payment.

 

8. The Claimant also respectfully asks the court to make an order requiring the Defendant to cease making assignments in contravention of s187 of the Social Security Administration Act 1992 and s45 of the Tax Credits Act 2002 of benefits from the Claimant's account.

I believe that the contents of these particulars of claim are true

[steven4064]

please stephen, check ouy this link:-

 

 

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/109831-help-please.html

 

:-? :-? :-?

See my reply

[steven4064]

i like your style.

totally confident.

thanks for that.

i tend to 'spy' the other threads, mainly to pick up new info.

We are hoping to actually test out the unlawfulness under SSAA1992 and TCA2002 in the courts.

[steven4064]

Was it transferred to the London MC? If so, from where?

[steven4064]

Martin

 

I've seen it. The trouble is that the PC stuff quotes case law (Woods v RBOS) that is only relevant in Scotland. Scottish cases should be dead easy because of the precedent in Woods. In England and Wales there is nothing quite so helpful, unfortunately.

 

However, we intend to file a claim along the lines above, including the request for an injunction. THat should stop them settling out of court, too, as i doubrt they will agree to stop levying charges, effectively forever!

 

At allocation, we may ask for the case to be referred to the MC and try and get a precedent. Thanks for the advice.

[steven4064]

Got all the statements this morning in over 50 seperate envelopes!! Postie nearly had a fit!

 

Even GE Money (who are not normally known for their sense) managed to send all the statements in one envelope.

[steven4064]

Hi VS

 

It varies considerably from bank to bank - even NatWest are different from RBOS (who own them)

[steven4064]

As part of this process we wrote a letter to the Job Centre and local tax office. Today we received an astounding answer from the job centre where they say

We have no authority to become involved with any disagreements you have with your bank, you have entered into a contract witthem and by doing so accept their rules and regulations including any charges levied.

The SSAA1992 and TCA2002 both say that any such agreement is void. Oh well!

[steven4064]

Thanks for that.

 

I read on one thread that someone got over 50 copies of their statements

[steven4064]

i wondered if it was your good self!!!

No