Alliance Trust Savings massive fee hike

bigadaj

juliamarsh wrote: »

Naedanger this is incredible, I can't tell you how grateful I am or the time you have saved me, I would never have been able to put all this as well as you have, and yet it is exactly what I wanted to say. I wish there was a triple thanks button on here that I could press!!

I think you are right in your assessment of how the ombudsman is interpreting 'free to dissolve the contract', and as you point out it is debatable whether they will perform a volte-face now, but I can only try, with the benefit of your very useful input. Could you just clarify what you meant under 'FSA Guidance' by 'This would mean UTCCR schedule 2 paragraph numbered one would only need point 1(k).'? That was the only part of what you wrote that I didn't really understand. There is no hurry by the way, they have given me almost one month to respond.

If anybody can point me in the direction of literature from ATS which states that they are giving their customers a 2 month fee free exit this time I would be very grateful, as it would be good to be able to supply this to FOS in support of my case.

A trillion thanks to you, naedanger :j

Yes I agree this site is a very useful resource.

You could register multiple times and hit the thanks button if you're sufficiently committed to it!

naedanger

juliamarsh wrote: »

Could you just clarify what you meant under 'FSA Guidance' by 'This would mean UTCCR schedule 2 paragraph numbered one would only need point 1(k).'?

Section 3.5 of the FSA's guidance lists three examples of where a contract is less likely to be considered unfair. The Ombudsman might argue that Alliance Trust's unilateral variation meets the first condition but he cannot argue it meets the third condition. However it is not clear from the FSA's guidance whether a variation needs to meet all three examples (where applicable) or just one of the three. Therefore my argument was going back to the actual Regulations i.e. the UTCCR. However on reflection the argument is still not that clear and would require more wording, which is disproportionate for the point being made.

Instead I suggest you replace the whole of the "FSA Guidance" section with the following wording:

FSA Guidance

FSA Guidance repeated states that a term is less likely to be unfair “if the consumer is free to dissolve the contract” and, as stated above, this means according to the FSA's guidance (section 3.16) having exit charges waived. Indeed the usefulness of being given advance notice of the variation is severely limited if the variation cannot be avoided without considerable cost.

Some examples:

Section 3.9 - “ … in circumstances where the term relates to the variation of interest rates or charges specifically, paragraph 2(b) of Schedule 2 indicates that the variation term is less likely to be unfair if the variation is made for a ‘valid reason’ (and notice is given at the earliest opportunity after the variation and the consumer is free to dissolve the contract immediately).”

Section 3.12 - “The Regulations indicate that advance notice of variations to interest rates and charges may not be required where there is a valid reason, so long as the consumer is given notice at the earliest opportunity thereafter and the consumer is free to dissolve the contract immediately.”

Section 3.13 - “we would be unlikely to object to a term that goes beyond the indication in Schedule 2, paragraph 2(b), by providing that, for unilateral variations to interest rates and charges, notice is to be given in advance rather than after the event, as long as the terms still provided that the variation would be made for a valid reason and gave consumers freedom to dissolve the contract immediately.

Section 3.17 - “where firms unilaterally vary the rate of interest or charges, the Regulations indicate that the term is less likely to be unfair if the consumer is free to dissolve the contract immediately.”

I repeat I am not "free to dissolve the contract "because, according to Section 3.16 of the FSA guidance, this requires that exit charges are waived. It is Alliance Trust's refusal to waive exit charges that my complaint is about.

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Good luck.

juliamarsh

Thanks so much, I shall have my work cut out over the next few days but it will be a lot shorter due to your very useful input!

juliamarsh

Had a final decision from the Ombudsman yesterday....submitted the complaint in July 2012! Just as naedanger predicted and as I too was expecting, he was unwilling to reconsider his provisional decision, so I didn't get my £142.50 fees back but I did get awarded £100 for 'stress and inconvenience' so it was worth making the complaint even if I am still a little out of pocket! I submitted all the useful information that naedanger and malfesto provided along with details of malfesto's and snowman's cases and I chuckled at the Ombudsman's comment that I had 'gone into some detail' in my response to his provisional findings and that he 'appreciated' the care I had taken when making my response! I'm sure it kept him busy for an hour or so!!;) He totally ignored the press release I submitted wherein Alliance Trust were extolling their virtues about how they 'believed in client fairness' and were waiving their exit fees this time for those who wished to leave...pretty annoying really. Never mind, done and dusted and time to move on. Once again, many thanks to naedanger and malfesto for their invaluable input, and to malfesto and snowman for sharing details of their cases, glad that they had more success than I did. Over and out!

naedanger

juliamarsh wrote: »

Had a final decision from the Ombudsman yesterday....submitted the complaint in July 2012! Just as naedanger predicted and as I too was expecting, he was unwilling to reconsider his provisional decision, so I didn't get my £142.50 fees back but I did get awarded £100 for 'stress and inconvenience' so it was worth making the complaint even if I am still a little out of pocket! I submitted all the useful information that naedanger and malfesto provided along with details of malfesto's and snowman's cases and I chuckled at the Ombudsman's comment that I had 'gone into some detail' in my response to his provisional findings and that he 'appreciated' the care I had taken when making my response! I'm sure it kept him busy for an hour or so!!;) He totally ignored the press release I submitted wherein Alliance Trust were extolling their virtues about how they 'believed in client fairness' and were waiving their exit fees this time for those who wished to leave...pretty annoying really. Never mind, done and dusted and time to move on. Once again, many thanks to naedanger and malfesto for their invaluable input, and to malfesto and snowman for sharing details of their cases, glad that they had more success than I did. Over and out!

Thanks for the update. In my view a very bad decision by the Ombudsman.

SnowMan

naedanger wrote: »

Thanks for the update. In my view a very bad decision by the Ombudsman.

A very bad decision

I would like to know why the Ombudsman Service is condoning the non-compliance of firms with the UTCCR?

It was very poor that schedule 2: para 1 (l) was ignored in the original decision.

Even worse when it is pointed out to the Ombudsman that there is no change of decision.

I have to say I have no confidence in the Financial Ombudsman Service at all at the moment as a route to ensuring fair treatment. Decisions should be made with full regard to the UTCCR. When nobody at the FOS seems to vaguely understand that legislation there is no hope.

juliamarsh

Thank you SnowMan and naedanger for your support. I must admit I was surprised and disappointed (obviously!) by the decision, especially since the adjudicator had originally found in my favour and the Ombudsman reversed this. I got the distinct impression when I received his provisional decision that his mind was made up and he wasn't going to change it whatever I said, but I gave it my best shot. He said 'I cannot decide whether AT's actions are 'fair' in accordance with the law, and I am not a regulator. I can only say what I think is fair and reasonable under the circumstances, having taken account of the relevant law and regulations.' He reiterated that on becoming a customer I had accepted AT's terms and conditions, specifically that they could increase their charges for certain reasons and that in that event the charges associated with moving my investments elsewhere would apply if I no longer wanted to use their service. He then said that keeping in mind that for the majority of my accounts AT had not previously made any charge for its service at all he thought it was fair and reasonable for the costs associated with moving the stocks to apply. On the matter of malfesto's and SnowMan's cases, he said that as they were against different businesses they involved the consideration of different terms and conditions, that one involved a change to the terms and conditions whereas mine involved reliance on an existing term, and that the other involved terms and conditions which did not specifically provide for an increase in charges and, consequently, any valid reasons for an increase. And as I said, the fact that AT had waived their charges this time didn't cut it with him either, he didn't even mention that! Nothing I can do about it now, but I agree, a very disappointing decision.

SnowMan

Quite obviously the Ombudsman has failed to look at the UTCCR or to consider whether the company has been fair. How on earth can he ignore 1 (l) and what OFT311 says about price increases.

When you look what they say in this Ombudsman news publication from 2005

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/50/banking-contracts.htm

When we look at banking disputes involving contracts, we take into account the firm’s duties under the Banking Codes. We consider relevant statutes, such as the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contract Regulations 1999. We also consider the Financial Services Authority’s Statement of Practice, Fairness of Terms in Consumer Contracts (published in May 2005). This gives firms an indication of how they can avoid using terms that could be regarded as unfair. It is particularly relevant when we look at terms to do with interest rate variation.

In addition, and very importantly, we are required to decide what is ‘fair and reasonable’ in a given case. This may mean deviating from the ordinary or strict legal position where that is necessary to ensure a fair outcome.

So how he can say

I cannot decide whether AT's actions are 'fair' in accordance with the law

What is the point of the Ombudsman looking at the case if he can't give an opinion on this. He may not be able to give a legal opinion but the OFT guidance is very clearly written and very easily understood by a layperson.

Obviously 'importantly' no longer applies. Unless the deviation from the law to assess fairness is against the customer which seems to be an assessment against the will of our elected parliament. Making up his own definition of fairness and ignoring the definition of unfairness in the UTCCR is pathetic

Even where the law clearly shows something is unfair, and the complainant points that out to the Ombudsman, the FOS will deviate and decide against the customer ignoring their point, in this case that 1 (l) appplies. That is the message that comes across.

Couldn't happen in any other industry

juliamarsh

I know, I am really fed up about it and I don't think it is fair. The Ombudsman did refer to the UTCCR in his provisional response (which I printed out in this thread) but he interpreted it in favour of Alliance Trust not me! He referred to it again in his final decision, but again, only to reiterate that he thought Alliance Trust's actions were reasonable. I really had no option but to accept his decision, however, because the sum involved is too small to warrant taking it any further. Not happy though!!:mad:

SnowMan

juliamarsh wrote: »

The Ombudsman did refer to the UTCCR in his provisional response (which I printed out in this thread) but he interpreted it in favour of Alliance Trust not me

Because he looked at the wrong bit 1 (j) and through an error missed the bit that did apply 1 (l).

Had he following your pointing out of 1 (l) made an argument why 1 (l) didn't make the ATS actions unfair, you could have just about understood his decision (albeit i wouldn't have agreed with it). However instead he has just ignored 1 (l) which is a disgrace and I find that very disappointing.


Well done for pursuing things this far, and take pride that you took this on as far as you reasonably could :T

Life is unfair at times I guess. Better to have fought and lost than not have fought at all.