Section 75 claim refused by Barclaycard

[Deleted User]

Of course they did, well done

uk1

Sandtree said:

uk1 said:

But I’m afraid in your case it seems more like a small money claim rather than an FOS claim. 

In theory, absolutely not. The FOS is much more generous than the courts and I have seen various cases on S75 complaints where the FOS has categorically stated by the letter of the law the customer wasn't entitled to a refund and that a court wouldn't have given one but that the FOS has more ability for lenience and that in very specific circumstances they believe the customer had no reason to believe a 4th party was involved and so upheld the complaint (one example being a company that was sharing card services technically provided for the neighbouring business).

In practice it maybe because Opodo may decide to settle out of court as it isn't cost effective for them to defend the claim... if it goes to court its almost certainly a loss and so the OP adds court costs and fees to their losses.

I have read your post several times to try and understand your point which I find bewildering.

The only thing I can make sense out of your post is that you feel that a customer making a claim to a CC provider that is negated by S75 rules should then go to the FOS and hope and rely on the FOS getting it wrong in the further hope that because the FOS  incorrectly and wrongly finds in contradiction of S75 rules and in the event that the CC provider then doesn’t appeal and that therefore the rather remote possibility that the chips through these compound negligence and failings then against all the odds fall down in the claimants favour which becomes binding is a normal and regular and solid basis for a customer to rely on but if not to then rely on the CC who will then pay up because it’s obviously cheaper.

An interesting and highly inventive set of compound and rather excessively optimistic and contradictory presumptions hopes and chances but nevertheless an interesting and unusual and imaginative point of view  … 

Thanks. 

Sandtree

uk1 said:

The only thing I can work out is that you feel that a customer making a claim to a CC provider that is negated by S75 rules should rely on the FOS getting it wrong in the hope that because the FOS  incorrectly finds in contradiction of S75 rules and in the event that the CC provider doesn’t appeal and that therefore the chips fall down in the claimants favour which becomes binding is a normal and regular and solid basis for a customer to rely on but if not the CC will then pay up because it’s obviously cheaper.

Its not the FOS "getting it wrong", its the FOS making an active decision that in particular circumstances they should rule with the customer despite acknowledging the courts wouldn't necessarily. The cases below has the following language which is used in a some of these cases and explains the FOS position (naturally as published cases these are the result of an appeal)

First, I will clarify my role. I am not a court. That means I’m not deciding Amex’s liability under section 75. My role is to take into account the law, which includes section 75. Then having done so, I need to decide what I think is fair and reasonable. 

https://www.financial-ombudsman.org.uk/decision/DRN9249134.pdf

Or 

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 B made a claim through them for breach of contract or misrepresentation.

https://www.financial-ombudsman.org.uk/decision/DRN4410746.pdf

Unfortunately I dont readily have to hand the clearest case I've seen which was where a company was using the payment terminal of a neighbour and the ombudsman said it was unfair to penalise the customer as they had no way of knowing the payment wasn't going to the supplier.

uk1

Sandtree said:

uk1 said:

The only thing I can work out is that you feel that a customer making a claim to a CC provider that is negated by S75 rules should rely on the FOS getting it wrong in the hope that because the FOS  incorrectly finds in contradiction of S75 rules and in the event that the CC provider doesn’t appeal and that therefore the chips fall down in the claimants favour which becomes binding is a normal and regular and solid basis for a customer to rely on but if not the CC will then pay up because it’s obviously cheaper.

Its not the FOS "getting it wrong", its the FOS making an active decision that in particular circumstances they should rule with the customer despite acknowledging the courts wouldn't necessarily. The cases below has the following language which is used in a some of these cases and explains the FOS position (naturally as published cases these are the result of an appeal)

First, I will clarify my role. I am not a court. That means I’m not deciding Amex’s liability under section 75. My role is to take into account the law, which includes section 75. Then having done so, I need to decide what I think is fair and reasonable. 

https://www.financial-ombudsman.org.uk/decision/DRN9249134.pdf

Or 

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 B made a claim through them for breach of contract or misrepresentation.

https://www.financial-ombudsman.org.uk/decision/DRN4410746.pdf

Unfortunately I dont readily have to hand the clearest case I've seen which was where a company was using the payment terminal of a neighbour and the ombudsman said it was unfair to penalise the customer as they had no way of knowing the payment wasn't going to the supplier.

Did you understand the FOS reasons?

In the process of contradicting me you have over-simplified the FOS findings and neglected their reasoning for overriding S75 therefore misleading others.

In the both the cases you cited the FOS decided that the claimant had been misled into believing they had bought directly and that their protections were safe.  It was the probable deception that led to the FOS overriding the linkage because they felt that Amex and in the latter, Tesco were jointly responsible for that deception even if they were unaware of it.  In both cases they seem to make clear to me it was the misinformation or misunderstanding that was the issue and it seems therefore a totally understandable, consistent  and rational decision. 

In summary, in both cases the provider of goods and services were completely unknown to the CC customer. That was the reason for the FOS over-riding  the S75 rules.

I do not see any deception claimed by the OP in this case and that they thought Opodo was an airline and so your contradiction seems both irrelevant and misleading. 

The advice that a money claim might be the way forward still seems to be correct.

Sandtree

I even stated the reason in the third case was that the customer couldn't have reasonably known... I wouldn't put it as strongly as "misled" which would imply some form of intent on behalf of the business.

I am confused by your line of argument, I was not saying that these are cases the OP could quote in their own case but that in principle that the FOS is more customer leaning than the courts are and so with the choice of going to the FOS and taking Barclaycard to court the probability is generally better with the FOS. As you now seem to understand the FOS aren't bound by the same rules as the court and so can decide its reasonable to award to the customer in certain circumstances which the strict application of the law would mean a court wouldn't.

As stated in many FOS Ombudsman decisions, their mandate is to find a fair and reasonable resolution not to judge to the letter of the law.

uk1

Sandtree said:

I even stated the reason in the third case was that the customer couldn't have reasonably known... I wouldn't put it as strongly as "misled" which would imply some form of intent on behalf of the business.

I am confused by your line of argument, I was not saying that these are cases the OP could quote in their own case but that in principle that the FOS is more customer leaning than the courts are and so with the choice of going to the FOS and taking Barclaycard to court the probability is generally better with the FOS. As you now seem to understand the FOS aren't bound by the same rules as the court and so can decide its reasonable to award to the customer in certain circumstances which the strict application of the law would mean a court wouldn't.

As stated in many FOS Ombudsman decisions, their mandate is to find a fair and reasonable resolution not to judge to the letter of the law.

These threads are not started in order to give the opportunity to grandstand irrelevant knowledge in order to confuse people that ask for help to specific questions.

The FOS can take a couple of years to reach a final uncertain conclusion and even longer for non-standard issues.  

In any event it’s now settled.