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complaint about halifax, ICO final repsonse
Marcus676_2
Posts: 23 Forumite
Hi everyone
I would very much appreciate your thoughts on the following, I apologise in advance for the length.
The response from Halifax
Halifax confirmed that your account first fell into arrears in January 2010, before you entered into a repayment plan in March 2010. Halifax stated that the agreement was for you to pay £14.86 for three months, taking effect from April 2010.
Halifax explained that from May to September you maintained payments that were higher than the minimum amount required under the temporary arrangement, indicating that the default could be avoided. It should be noted that although a default was avoided during this time, as you were paying less thn the contractual amount, arrears continued to accrue.
Halifax further explained that your account was five months in arrears on 26 August 2010 when it applied a concessionary ‘re-age’ process, which clears the arrears on an account to zero after the customer makes three consecutive months of payments. We understand that whilst the previous account history remains, the arrears at this point are effectively cleared and the expectation is that the customer will return to contractual payments.
However, Halifax stated that after September 2010, payments became erratic and considerably below the minimum contractual payment and were essentially ‘token’ amounts. As a result the arrears built back up to six months by April 2011. Halifax also explained that default notices were sent to you on 12 January 2011, followed by a payment later that month and again 18 February 2011, followed by a further token payment in March. A default was then registered on 20 April 2011. Halifax considers that this was in line with its processes at the time.
Our decision
In this case, on the basis of all of the information provided by you and Halifax, we have decided that it is unlikely that it has complied with the requirements of the DPA in this case.
Generally we consider that a default filed for the purposes of credit referencing (i.e. the default reported on a credit file) should reflect when there has been a breakdown in the relationship between lender and customer. This is different to a default reported under the CCA; this is a legal position where the lender has to have followed certain steps and it is not necessarily the same thing recorded on a credit file. This is a complex area and sometimes can cause confusion. Having considered all the information now available to us, the default reported in relation to your account does not seem to fairly reflect the breakdown that a default recorded on a credit file is meant to reflect.
Following the ‘re-aging’ of your account in August 2010, if the payments were insufficient and arrears began again from October 2010 onwards, this would suggest that six months of arrears had accrued by March 2011, rather than April 2011 as stated by Halifax. In addition, Halifax confirmed that it issues two default notices in January and February 2011, indicating a potential breakdown in the relationship between lender and customer. We understand that a default notice generally demands payment within 28 days to prevent a default being registered with the CRAs.
As noted above, Halifax confirmed that the first default notice was issued on 12 January 2011 and a token payment was later received that same month. It would seem that as this payment was only a token amount, you did not comply with the notice. This is further evidenced when Halifax then issued a second default notice on 18 February 2011 and a further token payment was received but this time in March 2011.
These points potentially suggest that you did not keep to the agreement in February when you did not return to contractual payments after the first default notice was issued the previous month. In any event, it seems that you did not comply with the second default notice issued in February as a default was subsequently registered. However, this was not until April 2011. On balance, the reporting of the default seems to have been made a number of months after there was a breakdown in the relationship between lender and customer. Consequently, the record does not seem to comply with the first or fourth data protection principles, regarding fairness and accuracy, respectively.
However, based on the information provided in relation to this complaint, the Information Commissioner has decided that further regulatory action is not required at this time.
When deciding whether regulatory action is appropriate, we take into account the organisation’s general record of compliance with the DPA. This may include any previous assessments we have made, or any regulatory action we have already taken against the organisation. We may also consider any other information that is in our possession (including information given during the course of our assessments).
Having carefully considered all relevant information that we hold about this complaint at the present time, we have decided that formal regulatory action is not required.
I would very much appreciate your thoughts on the following, I apologise in advance for the length.
The response from Halifax
Halifax confirmed that your account first fell into arrears in January 2010, before you entered into a repayment plan in March 2010. Halifax stated that the agreement was for you to pay £14.86 for three months, taking effect from April 2010.
Halifax explained that from May to September you maintained payments that were higher than the minimum amount required under the temporary arrangement, indicating that the default could be avoided. It should be noted that although a default was avoided during this time, as you were paying less thn the contractual amount, arrears continued to accrue.
Halifax further explained that your account was five months in arrears on 26 August 2010 when it applied a concessionary ‘re-age’ process, which clears the arrears on an account to zero after the customer makes three consecutive months of payments. We understand that whilst the previous account history remains, the arrears at this point are effectively cleared and the expectation is that the customer will return to contractual payments.
However, Halifax stated that after September 2010, payments became erratic and considerably below the minimum contractual payment and were essentially ‘token’ amounts. As a result the arrears built back up to six months by April 2011. Halifax also explained that default notices were sent to you on 12 January 2011, followed by a payment later that month and again 18 February 2011, followed by a further token payment in March. A default was then registered on 20 April 2011. Halifax considers that this was in line with its processes at the time.
Our decision
In this case, on the basis of all of the information provided by you and Halifax, we have decided that it is unlikely that it has complied with the requirements of the DPA in this case.
Generally we consider that a default filed for the purposes of credit referencing (i.e. the default reported on a credit file) should reflect when there has been a breakdown in the relationship between lender and customer. This is different to a default reported under the CCA; this is a legal position where the lender has to have followed certain steps and it is not necessarily the same thing recorded on a credit file. This is a complex area and sometimes can cause confusion. Having considered all the information now available to us, the default reported in relation to your account does not seem to fairly reflect the breakdown that a default recorded on a credit file is meant to reflect.
Following the ‘re-aging’ of your account in August 2010, if the payments were insufficient and arrears began again from October 2010 onwards, this would suggest that six months of arrears had accrued by March 2011, rather than April 2011 as stated by Halifax. In addition, Halifax confirmed that it issues two default notices in January and February 2011, indicating a potential breakdown in the relationship between lender and customer. We understand that a default notice generally demands payment within 28 days to prevent a default being registered with the CRAs.
As noted above, Halifax confirmed that the first default notice was issued on 12 January 2011 and a token payment was later received that same month. It would seem that as this payment was only a token amount, you did not comply with the notice. This is further evidenced when Halifax then issued a second default notice on 18 February 2011 and a further token payment was received but this time in March 2011.
These points potentially suggest that you did not keep to the agreement in February when you did not return to contractual payments after the first default notice was issued the previous month. In any event, it seems that you did not comply with the second default notice issued in February as a default was subsequently registered. However, this was not until April 2011. On balance, the reporting of the default seems to have been made a number of months after there was a breakdown in the relationship between lender and customer. Consequently, the record does not seem to comply with the first or fourth data protection principles, regarding fairness and accuracy, respectively.
However, based on the information provided in relation to this complaint, the Information Commissioner has decided that further regulatory action is not required at this time.
When deciding whether regulatory action is appropriate, we take into account the organisation’s general record of compliance with the DPA. This may include any previous assessments we have made, or any regulatory action we have already taken against the organisation. We may also consider any other information that is in our possession (including information given during the course of our assessments).
Having carefully considered all relevant information that we hold about this complaint at the present time, we have decided that formal regulatory action is not required.
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Comments
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What's your issue?0
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thanks the reply
Well it reads like they agree with my complaint, but they don't feel like they should do anything about it? I wondered if people agree with the ICO's decision? and if it represents the end of the line in terms of my battle in amending a default date to a date closer to the initial breakdown of the relationship0 -
It does feel that they agree the default has not been placed in accordance with the DPA but that they are taking no action.
I think you may need to contact them for clarification.All that glitters is not gold.0 -
Did you complain to the FOS also?:beer:0
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happy_bunny wrote: »Did you complain to the FOS also?
No, do you think they may be of help?
I should add that I never actually agreed to pay specific amounts, except in the original DMP with CCCS. Also the amount that they were receiving could not possibly have been 14.86, Halifax were my largest creditor and were getting a significant portion of the original amount, CCCS were taking which was approx. 350 per month0 -
Presumably you complained to Halifax before the ICO?
If so, you have 6 months from their final response to go to the FOS.
Include the response from the ICO.
They often say the ICO guidelines are just that and side with the bank. But here, you have the ICOs opinion, which the FOS should not ignore.
From your post, the default would basically be dated a couple of months earlier?:beer:0 -
Yes I complained to Halifax, but they didn't see fit to reply to me. Hence my approach to the ICO.happy_bunny wrote: »Presumably you complained to Halifax before the ICO?
If so, you have 6 months from their final response to go to the FOS.
Include the response from the ICO.
They often say the ICO guidelines are just that and side with the bank. But here, you have the ICOs opinion, which the FOS should not ignore.
From your post, the default would basically be dated a couple of months earlier?
I was looking for max 6 months from original breakdown, maybe Sept/Oct 2010, may not seem like much but 6 months would mean a clean CR in 2016 rather that 2017.
Any guidance on how to start the ball rolling with the FOS?0 -
Either give them a call or download the form and fill it out:
http://www.financial-ombudsman.org.uk/consumer/complaints.htm
Can take a few months, but worth it if they change it.
Might even get a few quid for the grief.:beer:0 -
happy_bunny wrote: »Either give them a call or download the form and fill it out:
http://www.financial-ombudsman.org.uk/consumer/complaints.htm
Can take a few months, but worth it if they change it.
Might even get a few quid for the grief.
Thank you, ill get onto them in the morning, I've got nothing to lose which to be fair has been my attitude since I started this0 -
The impression I get is that whilst they do not consider Halifax has fully complied with the DPA principles, the ICO does not consider the recording of a default unreasonable. i think it is technical compliance against the bigger picture.0
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