Ombudsman distinction between "claim" and "complaint; Section 75.

ClaimComplaintDude

I complained to a supplier that I had not received the service it was contracted to provide.
The supplier did not accept my complaint and I then asked for my money back.
The supplier refused.

I then made a Section 75 claim to the credit card company through which I had paid the supplier's fee.
The credit card company considered my claim and then gave a reasoned decision rejecting my claim.
I then referred the matter to the FOS.

I have just received a response from the FOS. It says it has received a response from the credit card company to the effect that we had made a "claim" to it and not a "complaint". Apparently, the credit card company have now registered my "claim" as a "complaint" and will look into it (ie having previously looked into and reached a decision on my "claim"). 
The Ombudsman says it must give the credit card company 8 weeks to look into it and respond, ie by 4th December 2024. If I don't agree with the response the FOS well then look into it.
The credit card company will surely arrive at the same decision on the "complaint" as it did on the "claim". 

I believe that in accepting the "claim" and dealing with it, the credit card company accepted that any test requiring a "complaint" had been passed. If it is now arguing (perhaps) that I "complained" to the supplier and should have then "complained" to the credit card company before making a Section 75 Claim, then surely it should have stated that in response to my "claim" -- and not considered my "claim". 
When dealing with my "claim" the credit card company asked for, and was provided with, documentary evidence that the supplier had rejected my "complaint" and had refused to repay our money.

Seems to me the credit card company is prevaricating and the FOS is allowing it to do so.
What do others think and has anyone experienced similar?

eskbanker

The FOS process is dependent on a complaint having first gone through the financial institution's complaints process, and it's the final response within that process that advises the customer of their right to go to FOS, so did your claim rejection include anything about FOS referral?

Having said that, the card company has no right to insist on sight of correspondence between you and the supplier - s75 holds the creditor jointly and severally liable, so you don't even need to have approached the supplier at all.

born_again

ClaimComplaintDude said:

I complained to a supplier that I had not received the service it was contracted to provide.
The supplier did not accept my complaint and I then asked for my money back.
The supplier refused.

I then made a Section 75 claim to the credit card company through which I had paid the supplier's fee.
The credit card company considered my claim and then gave a reasoned decision rejecting my claim.
I then referred the matter to the FOS.

I have just received a response from the FOS. It says it has received a response from the credit card company to the effect that we had made a "claim" to it and not a "complaint". Apparently, the credit card company have now registered my "claim" as a "complaint" and will look into it (ie having previously looked into and reached a decision on my "claim"). 
The Ombudsman says it must give the credit card company 8 weeks to look into it and respond, ie by 4th December 2024. If I don't agree with the response the FOS well then look into it.
The credit card company will surely arrive at the same decision on the "complaint" as it did on the "claim". 

I believe that in accepting the "claim" and dealing with it, the credit card company accepted that any test requiring a "complaint" had been passed. If it is now arguing (perhaps) that I "complained" to the supplier and should have then "complained" to the credit card company before making a Section 75 Claim, then surely it should have stated that in response to my "claim" -- and not considered my "claim". 
When dealing with my "claim" the credit card company asked for, and was provided with, documentary evidence that the supplier had rejected my "complaint" and had refused to repay our money.

Seems to me the credit card company is prevaricating and the FOS is allowing it to do so.
What do others think and has anyone experienced similar?

FOS are right. They can only deal with "Complaints" against provider, that have not been resolved.

Your claim under S75 is not a complaint.
So when your claim was rejected, you should have registered a complaint with them.

The complaint to retailer has nothing to do with your S75 claim, as far as a complaint against the bank.

Complaints are dealt with by a separate team at the bank. While they will work with the S75 team, they may not come to the same decision, as they look at more than just your claim. 

DullGreyGuy

ClaimComplaintDude said:
Seems to me the credit card company is prevaricating and the FOS is allowing it to do so.

What do others think and has anyone experienced similar?

I technically think there is an argument in principle but my judgement is coloured in part by my disagreement on the appropriateness of S75 in the modern world. 

Whilst I can see a technicality at the end of the day I think the FOS stance is reasonable, they are there to be an escalation of complaints against financial services company. Whilst some outdated legislation has given you the ability to register an issue with a product or service they funded for you it is not actually a complaint about the FS company's actions/products etc and so not actually a complaint about the FS company. 

They have reviewed the matter under S75 and dont agree with you, that does then give you grounds for complaint which someone else will review and then you can take the matter to the FOS if you still dont like their answer. 

Note that 8 weeks is the maximum time they have to respond to your complaint. The majority of complaints are responded to before the time limit. You can go the FOS at the sooner of 8 weeks or their final response/deadlock letter.

PHK

The FCA handbook defines what a complaint is. The FOS can only investigate if:

You are an eligible complainant 
You’ve made a complaint that meets the FCA definition 
The responding firm has issued a final decision giving you rights to approach the FOS AND you have not left it too long to approach the FOS
OR more than 40 business days has passed since you complained and you haven’t had a final decision AND you haven’t left it too late to approach the FOS

DullGreyGuy

PHK said:

The FCA handbook defines what a complaint is. The FOS can only investigate if:

You are an eligible complainant 
You’ve made a complaint that meets the FCA definition 
The responding firm has issued a final decision giving you rights to approach the FOS AND you have not left it too long to approach the FOS
OR more than 40 business days has passed since you complained and you haven’t had a final decision AND you haven’t left it too late to approach the FOS

S75 says supplier and creditor are jointly liable for a transaction subject to various conditions @PHK

To play devils advocate... if you tell the supplier that they have supplied you a piece of junk then that would be considered a complaint. There is certainly a train of thought seeing that supplier and creditor are jointly liable that telling the creditor that a piece of junk was supplied is equally a complaint. 

Ergates

DullGreyGuy said:

PHK said:

The FCA handbook defines what a complaint is. The FOS can only investigate if:

You are an eligible complainant 
You’ve made a complaint that meets the FCA definition 
The responding firm has issued a final decision giving you rights to approach the FOS AND you have not left it too long to approach the FOS
OR more than 40 business days has passed since you complained and you haven’t had a final decision AND you haven’t left it too late to approach the FOS

There is certainly a train of thought seeing that supplier and creditor are jointly liable that telling the creditor that a piece of junk was supplied is equally a complaint. 

I don't think it's a train of thought that would stand up to scrutiny.  Even just in practical terms - the FOS requires that a complaint has been through the FI's complaints process and reached a conclusion.   For that to work here, the supplier's complaints process would have to feed into the FI's complaints processes - which would require the FI to link their complaints system with millions and millions of other companies, which would obviously not be a workable solution.

PHK

DullGreyGuy said:

PHK said:

The FCA handbook defines what a complaint is. The FOS can only investigate if:

You are an eligible complainant 
You’ve made a complaint that meets the FCA definition 
The responding firm has issued a final decision giving you rights to approach the FOS AND you have not left it too long to approach the FOS
OR more than 40 business days has passed since you complained and you haven’t had a final decision AND you haven’t left it too late to approach the FOS

S75 says supplier and creditor are jointly liable for a transaction subject to various conditions @PHK

To play devils advocate... if you tell the supplier that they have supplied you a piece of junk then that would be considered a complaint. There is certainly a train of thought seeing that supplier and creditor are jointly liable that telling the creditor that a piece of junk was supplied is equally a complaint. 

Actually, no it wouldn't be a complaint according to the FCA definition of a complaint. 

The person complaining must be an eligible complainant (or their representative)

The complaint must be about a regulated activity (as defined by the regulated activities order)

There must be an allegation that the eligible complainant has suffered (or will suffer) financial loss, material distress or material inconvenience. 

There must be an assertion that something else should have been done. 

Telling the supplier and creditor that it's a piece of junk and so you want the money back would be a claim against them. 

Complaining that a lender did not handle the claim correctly/fairly/ reasonably and that caused a loss because they should have refunded the amount paid WOULD be a complaint.