barclaycard / morgan stanley claim

[Deleted User]

bonjen3 wrote: »

Ok, thanks, but surely they had a duty to state that "exclusions / conditions apply" ? there was nothing like that at all

T&Cs would have been sent after the application was received, your husband then had a 14 day "cooling off" period in which to read them and decide whether he should cancel.

Regardless, he still actively chose to select the insurance on his postal application. Since no one advised him, he mis-bought rather than was mis-sold.

FOS will not overturn this.

bonjen3

Thanks for your input, I do appreciate it and will let you know how I get on. Thanks to another poster who sent me a private message, I found a list of the FOS database of decisions. I found this case, which although not identical to mine it has crossover elements, I will post the decision up for others , who are looking for assistance when they ticked the box themselves. Apologies for the long post,

Ref: DRN5516991
summary of complaint
This complaint is about a regular (monthly) premium payment protection insurance (PPI) policy taken out in 2003 in connection with a credit card. Mrs N says Capital One mis-sold the policy.
my findings
I have included only a brief summary of the complaint above, but I have considered all of the available evidence and arguments in order to decide what is fair and reasonable in the circumstances. I have also taken into account the law and good industry practice at the time the policy was sold.
In essence, the questions I need to consider are whether Capital One gave Mrs N information that was clear, fair and not misleading in order to put her in a position where she could make an informed choice about the insurance she was buying and whether in giving any advice or recommendation, Capital One took adequate steps to ensure the product it recommended was suitable for Mrs N’s needs.
However, if there were any shortcomings in the way the policy was sold, then I need to consider whether they affected Mrs N’s position and whether she would have acted differently if there had not been any shortcomings.
Mrs N opted to take out the PPI when she completed an application for a credit card. I am satisfied Capital One did not recommend the policy to Mrs N, so it did not have to ensure the policy was suitable for her needs but it did still need to provide her with sufficient information to allow her to make an informed choice.
At the time the policy was sold Mrs N was 59 years old and was working full time. She had been with her employer for 17 years and was entitled to six months full pay followed by six months half should she be off work due to sickness or accident. After she reached 60, she would be entitled to a pension from her employer and also in receipt of the state pension at this time.
In order to make a claim for unemployment benefit under the policy, a person would need to be “unemployed due to redundancy (if employed)...” The words in bold are defined in the terms and conditions as follows:
Employed: In paid employment under a contract of services under which you ordinarily work in the United Kingdom, Channel Islands or Isle of Man and are paying Class 1 National Insurance contributions.
Redundancy: Being entirely without employment as a direct result of your employment being terminated due solely to your employer ceasing or reducing the activities for which you were engaged at the place where you worked.
Unemployed: You being without work due directly to your redundancy or business failure. You must be registered with the Department for Works and Pensions and in receipt of National Insurance Credits and be actively seeking and available for work.
Once Mrs N reached state pension age (six months after taking out the policy), she would have ceased paying National Insurance contributions and according to the terms and
K821x#10
Ref: DRN5516991
conditions of the policy, would no longer be classed as ‘Employed’. It therefore seems unlikely she would have been able to make a successful claim for unemployment once she reached 60 years old.
Capital One says Mrs N would have been able to file a claim for unemployment but she would have been required to provide a letter from the Department for Work and Pensions, highlighting the fact she would not be in receipt of National Insurance credits. But I doubt Mrs N would have wanted to rely on the insurer’s discretion to accept a claim from her when its contract with her specifically said it would do otherwise. The purpose of any insurance policy is to provide peace of mind – something Mrs N is unlikely to have gained from anything less than a binding agreement.
Having considered the leaflet provided to Mrs N when she applied for the policy, I cannot see that this significant limitation on the benefit she could receive from the policy was drawn to her attention. I accept careful consideration of the policy document may have alerted Mrs N to the fact she might not be able to claim for unemployment once she reached 60 years old but it would have been necessary for her to cross reference the various sections of the document to discover all the limitations. I am not satisfied this was sufficient to draw it to Mrs N’s attention at the time of the sale.
I do not consider Mrs N is likely to have wanted to pay for a policy when there is such considerable doubt she would be able to benefit from one of its major features, so soon after taking it out.
I also have concerns around whether sufficiently clear information was given to Mrs N about the cost and the benefit of the policy. Capital One has confirmed that the initial cost was 89p per £100 of the balance outstanding and the benefit was 10% of the outstanding balance for up to 12 months. However, having reviewed all of the documents provided to me, I am not sufficiently persuaded the ongoing cost of the PPI would have been clear to Mrs N. Specifically, I am not persuaded that it was made clear that she would have to continue paying her PPI premiums during a successful claim, which would have reduced the real value of the policy’s 10% benefit.
In my opinion the costs and benefits of the policy, taken in conjunction with Mrs N’s particular circumstances, mean I cannot safely conclude it is more likely than not that she would have gone ahead with the policy if she had been given information that was clear, fair and not misleading.
Overall and on balance, I conclude that Capital One failed to inform Mrs N properly. I also conclude that Mrs N has been disadvantaged as a result of Capital One’s shortcomings in this case because I find it most likely that if she had been properly informed she would not have taken out the policy.
It follows that I uphold this complaint and make an award against Capital One.

[Deleted User]

bonjen3 wrote: »

Thanks to another poster who sent me a private message,

Better to keep private message discussion off the forum. Beware of unsolicited messages, they often come from people who work for claims companies…

Nothing in the quoted case is similar to your own that I can see.Your husband wasn't six months from retirement was he?
As I've said earlier, the morbidly obese "condition" would not stop a claim on the insurance and is irrelevant anyway as the application was made by post.

Refer your case to the Ombudsman, as I said at post #2. Just be aware that your referral will take around eighteen months and that it will likely not be upheld for the reasons already outlined.

bonjen3

Just thought I would post an update, incase other people do searches for similar circumstances. The complaint was upheld and we got £4560.22, refunded today.

[Deleted User]

bonjen3 wrote: »

The complaint was upheld and we got £4560.22, refunded today.

Amazingly quick turnaround if you went via the Ombudsman only in February.

-taff

Unless the business paid when given the opportunity to do so by the FOS.

maggy50

bonjen3 wrote: »

Just thought I would post an update, incase other people do searches for similar circumstances. The complaint was upheld and we got £4560.22, refunded today.

Well done :beer:

bonjen3

No, I didn't go to the ombudsman, I sent a further letter to the credit card provider, explaining why I felt they mis sold. I am still waiting to hear on the claim that I sent to the ombudsman.