Section 75 and consumer rights

[Deleted User]

Sandtree said:

Deleted_User said:

And I didn't say they would

I made a post, Sandtree chose to create a strawman argument, based on something I didn't say, rather than address the point I made. Read my post that Sandtree replied to. I made it very clear that the FOS cannot force a bank to do something they are not obliged to do and made it EXPLICITLY clear what I meant, by providing an example of a situation where the FOS cannot overrule a bank decision. Sandtree replied by saying I was incorrect, so I asked for an example of the FOS making a decision where the SINGLE, SPECIFIC example I provided was incorrect. Instead of actually answering Sandtree chose the strawman argument instead.

I was recalling cases that I was struggling to find not "choosing a strawman argument instead".

One example would be Decision Reference DRN8874696 (financial-ombudsman.org.uk) where the Ombudsman states:

When considering a complaint about a financial services provider, I’m not determining the outcome of a claim that a party might have under section 75. I take section 75 into account when I think about what’s a fair way to resolve the complaint but I don’t have to reach the same view as, for example, a court might reach if Mr W made a claim through them for breach of contract or misrepresentation. 

As previously stated in my "strawman", the ombudsman is not bound to come to the same conclusion the courts would and has more scope for interpretation... unfortunately not found the better case which has the above plus talk of evolution of circumstances (FinTech effectively) and law being slow to keep up.

It's not a "strawman", it's a strawman. Your argument against mine is based on something I didn't say, an argument you made to seem like I was wrong and you were right, by arguing a completely different point to the one I made. It's the same with this "example", the FOS is not forcing the lender to ignore the law. In fact, this example is a perfect case of the FOS being consumer friendly not biased towards the banks.

The FOS will not, never have, and never will, force a lender to pay out in a situation where S75 legally does not apply.

The iZettle example is a strawman because in that situation, the FOS ruled that the debtor / creditor link was not broken, therefore S75 applied. If the FOS had said the link was broken and still said that the lender should pay out, that would be an example of the FOS forcing the lender to pay out when the law didn't apply (same as a fictitious example of them saying the lender should payout on a £30,001 charge).

Sandtree

Deleted_User said:
The FOS will not, never have, and never will, force a lender to pay out in a situation where S75 legally does not apply

The iZettle example is a strawman because in that situation, the FOS ruled that the debtor / creditor link was not broken, therefore S75 applied. If the FOS had said the link was broken and still said that the lender should pay out, that would be an example of the FOS forcing the lender to pay out when the law didn't apply (same as a fictitious example of them saying the lender should payout on a £30,001 charge).

But they said that a Court may well have decided the C-D-S was broken by the use of iZettle... which is similar to this case where the bank statement shows the money didnt go directly to the supplier. But the Ombudsman used their discretion to decide that it didn't matter. As they say, their ruling is not on a S75 claim but just using S75 as guidance, without being bound to it, as to what a fair outcome is.

I assume there are checks and balances to ensure the ombudsmen don't go rogue but I've never heard of an ombudsman's decision being successfully challenged even when it clearly goes against contractual positions etc. Maybe it has happened and just been kept quiet.

mgfvvc

born_again said:

Do not get that refusal for chargeback as it's not relevant.
You claim should have been on the grounds of non receipt of service if the owners cancelled it.

The FOS didn't get it either. When they finally got to it, the preliminary investigation said that Partnership card should have raised a chargeback. They did not look at s75 as they found that a chargeback should have been raised. The bank have now agreed and will pay me back, with interest. I am getting my money back, but it's taken more than 2 years.

MalMonroe

mgfvvc said:

born_again said:

Do not get that refusal for chargeback as it's not relevant.
You claim should have been on the grounds of non receipt of service if the owners cancelled it.

The FOS didn't get either. When they finally got to it, the preliminary investigation said that Partnership card should have raised a chargeback. They did not look at s75 as they found that a chargeback should have been raised. The bank have now agreed and will pay me back, with interest. I am getting my money back, but it's taken more than 2 years.

Well done. Always worth trying, glad you were successful.

It may have taken more than 2 years for you to succeed but I don't think that's unusual. I had a section 75 claim in with the FOS against Capital One a few years ago. It took almost two years to finalise and I was heartily sick of it. But I was successful, the Ombudsman agreed with me and I also received compensation. Totally different case and circumstances to yours of course but the point is if you are prepared to stick it out and you know that you have a case to answer, it really is worth it.

Thanks for your update. 

BT_Broederbund

MalMonroe said:

mgfvvc said:

born_again said:

Do not get that refusal for chargeback as it's not relevant.
You claim should have been on the grounds of non receipt of service if the owners cancelled it.

The FOS didn't get either. When they finally got to it, the preliminary investigation said that Partnership card should have raised a chargeback. They did not look at s75 as they found that a chargeback should have been raised. The bank have now agreed and will pay me back, with interest. I am getting my money back, but it's taken more than 2 years.

Well done. Always worth trying, glad you were successful.

It may have taken more than 2 years for you to succeed but I don't think that's unusual. I had a section 75 claim in with the FOS against Capital One a few years ago. It took almost two years to finalise and I was heartily sick of it. But I was successful, the Ombudsman agreed with me and I also received compensation. Totally different case and circumstances to yours of course but the point is if you are prepared to stick it out and you know that you have a case to answer, it really is worth it.

Thanks for your update. 

Which is why your anecdotal evidence (which you didn't actually give) is irrelevant.

Different caser, different circumstances.