Should I go to the Ombudsman?

VT82

I think it comes down to a case of Hadley vs Baxendale http://en.wikipedia.org/wiki/Hadley_v_Baxendale

If you told them on the phone 'if I don't get this money first thing in the morning, I will be out of pocket by £350', and they said 'you will', then they now owe you £350.

If you said 'will I get this money first thing in the morning?' and they said 'yes', they really only owe you what could reasonably be expected to be your loss. This would be in the single or double digits of pounds. They have fulfilled their legal requirements and can't be held responsible for consequential loss that they couldn't have reasonably foreseen.

I suspect it's the latter so I would take the money.

Also, it is not guaranteed that they would be out of pocket by £500 if you refer it to the Ombudsman - they could reject it outright rather than investigating it, or the institution could be small enough such that the number of complaints referred to the FOS comes under the de minimis limit so they aren't charged. It is referred to as a Building Society, and I'm guessing only the largest 3-6 of those have enough complaints per quarter about them to have to pay for the Ombusdman service.

uk1

YorkshireBoy wrote: »

No it doesn't.

Only cases which can't be dealt with by their frontline staff, and so have to be passed up the chain to a FOS adjudicator, are chargeable.

Currently fewer than 1 in 6 complaints received are passed to an adjudicator...

http://www.financial-ombudsman.org.uk/publications/technical_notes/QG1.pdf (page 1, top right)See above.

What you say is correct but you seem to have misunderstood what happens.

The one in six you cite - as they say are "complaints or enquiries" - is mainly people that do not follow the full bank complaints procedure before going to the ombudsman.

Fewer than one in six of the initial complaints and enquiries we receive at our front-line customer contact division become chargeable cases. The other complaints and enquiries usually involve matters we do not deal with – or matters that that can be resolved very early on, just by clarifying misunderstandings and sorting things out informally.

There is no issue with complaining to the ombudsman office first. The first thing the front-line staff do is to inform the organisation being complained about that they have received a complaint and give them the opportunity to resolve it. Or if the complainant has simply misundersood something simple like gross interest compared with net interest .... it get's resolved as it's a simple misunderstanding. When their is a substantive issue ie not a simple misunderstanding then most organisations settle because they know that the next stage is adjudication and the fee. That is why so few fees are payable.

If it hasn't been resolved by the bank once informed when given the opportunity or if the complainant doesn't accept whatever is offered it goes to an adjuducator and a fee is payable. So if the complaint isn't settled a fee is payable. That is what I said.

uk1

VT82 wrote: »

if you refer it to the Ombudsman - they could reject it outright rather than investigating it

Please post evidence of the basis on which you say that the ombudsman could reject this claim outright rather than investigating it.

VT82

I would say the first line of the first reply did that.

YorkshireBoy wrote: »

The FOS may refer to the payment services directive, which says payment orders must arrive "by the end of the next business day"...and yours did.

uk1

Sadly - we're going round in circles. I think the OP can now decide what he wants to do.

YorkshireBoy

uk1 wrote: »

What you say is correct but you seem to have misunderstood what happens.

I'm not sure I have, but the answer to the following may help (us both)...

If it hasn't been resolved by the bank once informed when given the opportunity or if the complainant doesn't accept whatever is offered it goes to an adjuducator and a fee is payable.

Are you saying that only an adjudicator can make an award*?...whether it be a 'money award' or a 'direction award'...and the frontline staff can't? I don't know the answer to this...do you?

Speaking of 'direction award', maybe the FOS would rule that, whilst the (contradictory) advice given via phone/letter/whatever may have been incorrect, the outcome of the transaction request (the payment order) did fully comply with the PSD/PSRs. In other words, a slap on the wrist for the BS and a 'direction' to answer future such enquiries with the reply "please see your account T&Cs"...but no 'money award' and no case fee?


* http://www.financial-ombudsman.org.uk/faq/businesses/answers/redress_a1.html

uk1

YorkshireBoy wrote: »

I'm not sure I have, but the answer to the following may help (us both)...Are you saying that only an adjudicator can make an award*?...whether it be a 'money award' or a 'direction award'...and the frontline staff can't? I don't know the answer to this...do you?

Speaking of 'direction award', maybe the FOS would rule that, whilst the (contradictory) advice given via phone/letter/whatever may have been incorrect, the outcome of the transaction request (the payment order) did fully comply with the PSD/PSRs. In other words, a slap on the wrist for the BS and a 'direction' to answer future such enquiries with the reply "please see your account T&Cs"...but no 'money award' and no case fee?


* http://www.financial-ombudsman.org.uk/faq/businesses/answers/redress_a1.html

1. In the process before it formally becomes a complaint staff can "help" both sides by directing the customer back to the company to exhaust their complaints procedure first and by clearing up any misunderstandings that may have occured for example if the customer had simply not read properly the investment or savings plan they had bought or didn't understand compound v simple interest or aer etc. Once these initial activities are exhausted and if they become inconclusive to the issue then it becomes a complaint and then all adjudications are drafted and then made in the name of the adjudicator by ombudsman staff.

2. The misunderstandings most people have about the "sanctity" of terms and conditions are for the reasons I posted earlier (from the ombudsman's own website) and are therefore irrelevant. The ombudsman will not point the complainant to the T's&C's unless they are fair. In this case (and in fact any set of terms an conditions where an organisation says that they are not bound by any representation or promise made to a customer or potential customer by a member of staff) are in the UK unenforceable unless a person knew that the information was incorrect when they were receiving it - which isn't relevant here. It is reasonable for a customer to presume staff would know and therefore if from the recordings it is common ground that a member of staff said the OP would have the cash on the following morning then that is all that is relevant. If the employee said "may" or "should" reach your bank account - that is entirely different and the OP then should have made alternative plans. That doesn't appear to be so here and isn't what the OP seems to be claiming. It is quite reasonable for a customer to believe that a staff member would know this and would have no reason to suspect it to be wrong. That conversation is all that is pertinent.

The terms and conditions also cannot preclude consequential loss - these conditions have long been proved to be "unfair".

3. The customer did not have to explain to the bank the signifcance of any delay or it's potential ramifacations - it's irrelevant as it implies that the bank would carelessly say one thing and then do another than what it had promised.

4. The OP does have to show he made a loss - which presumably he has already done as an offer has been made. I don't think the bank would have offered the amount it did if it felt that a loss hadn't been made - normally £50 or £75 is an inconvenience or dissapointment amount offered. If he cannot show that he made a specific loss then the claim will fail.

I am clear about the mechanisms of how this works but some people (whilst either well intentioned or employed on the "other side") seem to confuse what actually happens with what they think should happen and what they think is fair and therefore provides confusing and unhelpful advice.

You can think of it this way. Most complaints a financial organisation receives directly from customers will not result in a formal ombudsman complaint. However most complaints that are pointed back to the organisation from the adjudicator staff will result in a complaint to the ombudsman if unresolved. The way in which these complaints will be dealt with is therfore different and whereas there is a tendency to "fob" direct complaints off this is less so with the group already in contact with the ombudsman or has a clear intention to take it to the ombudsman. The motivation being the fee, a potentially larger award and a further unresolved complaint found in favour of the complainant added to the league tables.

complaints data naming individual businesses

We publish complaints data every six months – showing the number and outcome of the cases we handle relating to the 150 or so named financial businesses that together account for around 90% of the ombudsman service's workload.
Our complaints data about these financial businesses is listed on our website under the official name by which each business is regulated. If the financial business was part of a larger financial group, we show that as well.
But businesses may also operate under different trading names (or brands). You can check to see if the name you are looking for is a trading name (or brand) – which means any complaints data might be listed under a different business name.

On average 72% of the complaints are found in favour of the consumer. Some insititutions ....HFC for example 90% of their customers complaints are found in their customers' favour. MBNA ... 94%.

This does not indicate that they deal with these cases well, largely for reasons reflected in many of the comments you see posted here in that staff do not understand that the terms and conditions are unenforceable if unfair and bank staff seem to be clueless about this ..... other companies on the list do far better ....;)

The op's situation is quite straightforward and the process going forward is equally so and it's now up to him ... presuming he hasn't lost interest ... to decide what he wants to do .... ..........:)

opinions4u

On average 72% of the complaints are found in favour of the consumer

And excluding PPI?

YorkshireBoy

opinions4u wrote: »

And excluding PPI?

A lot less!...

The data published today shows that in the second half of 2011 the ombudsman service upheld an average of 72% of complaints in favour of consumers, compared to 47% in the first half of 2011 – reflecting the impact of PPI cases. Across the 163 individual businesses included in the complaints data, the overall uphold rates varied substantially between 6% and 98% upheld in favour of consumers. For PPI cases specifically, uphold rates ranged between 6% and 100%.

http://www.financial-ombudsman.org.uk/news/updates/complaints-data-July-Dec-2011.html

opinions4u

YorkshireBoy wrote: »

A lot less!...

It seems to be right that c50% of complaints are found in favour of the consumer.

This suggests there was a real need for an umpire's verdict.