Santander free forever bank account changes

Futuristic

LadyJaz said:

Futuristic said:

Thats a big if. I'd be surprised if even 1/10th end up going all the way to FOS but anyones guess really.

I assume many businesses will simply pay the fee as its not worth their time fighting for £120/yr or switch away (very easy these days thanks to CASS and many free (even high street) alternatives). 

For some of us 'oldies' its easier going to the FOS and submitting a complaint online than it is to switch accounts which requires certain kinds of ID or proof of income or other such like documents  

Either way you probably will need those documents handy soon if you don't want to pay £9.99 a month  Beauty of modern tech you can complete a business account application in <5-10mins with the digital banks. 

Smurrfmo

noitsnotme said:

Smurrfmo said:

Regarding the comments above about the need to prove a loss before taking court action that is not quite true.  There are a number of avenues that can be pursued in court including the remedy of "specific performance" to force Santander to honour the contract. 

I believe that is not the case with small claims court, which is what the previous comments were relating to.

It is the case, the small claims court is not confined to money claims.

noitsnotme

Smurrfmo said:

noitsnotme said:

Smurrfmo said:

Regarding the comments above about the need to prove a loss before taking court action that is not quite true.  There are a number of avenues that can be pursued in court including the remedy of "specific performance" to force Santander to honour the contract. 

I believe that is not the case with small claims court, which is what the previous comments were relating to.

It is the case, the small claims court is not confined to money claims.

I think we’re talking cross purposes here.  The comment I made was to the person who was asking if they could make a court claim for 20 years worth of future bank fees.  I said I don’t believe so because there is no guarantee their business would run for another 20 years.  Small claims court generally deals with quantifiable losses, not maybes or things that haven’t yet happened.

I think what you’re saying is that a small claims court could order Santander to honour the free banking for life.  Whether small claims court has the power to do that or not, I don’t know.  Even if they could, it would be on a case by case basis and not all are guaranteed the same outcome.

Nasqueron

eskbanker said:

Nasqueron said:

Section62 said:

eskbanker said:

Have any of Santander's complaint rejection responses clarified the specific rationale for doing so?

Curious about whether they might try to argue timebarring, i.e. that the time to complain was in 2015, when the commitment to free banking was effectively removed (even though charges weren't actually introduced then), and therefore it's now out of time to complain about them breaking promises as such (which would then take complaints out of FOS scope too)?

https://forums.moneysavingexpert.com/discussion/comment/68640758/#Comment_68640758 was anticipating this sort of thing, but I don't know if it'll play out that way....

I think it will be a case of when the customer became aware - as per the conversation the other day - if Santander weren't clear and explicit that the 2015 changes paved the way for charging then customers may have a reasonable argument they were unaware that charging would be introduced until now.

Any hint that the future plans were being kept quiet or obfuscated would possibly open the door to complainants.

"Fair, clear and not misleading."

When they knew or could reasonably have known - that will be where it comes down

It's 'ought' rather than 'could', i.e. a complaint can be timebarred:

(2) more than:

(a) six years after the event complained of; or (if later)

(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;

https://www.handbook.fca.org.uk/handbook/DISP/2/8.html#DES223

Clearly some customers recognised the significance of the 2015 change, so it would come down to an FOS (or maybe ultimately FCA or even a court) view as to what would constitute 'reasonable', 'clear', etc.

Could and ought are synonyms for this purpose, I wasn't quoting the exact wording - either word works for the purposes of the post - that you cannot just claim to have found out today and thus negate the 3 year rule.

Section62

Nasqueron said:

Could and ought are synonyms for this purpose, I wasn't quoting the exact wording - either word works for the purposes of the post - that you cannot just claim to have found out today and thus negate the 3 year rule.

'Could' and 'ought' aren't usually synonyms in a legal context, and there's likely a very good reason why FCA chose to use 'ought' when drafting their rule.

There are responsibilities here - the consumer to inform themselves, and the service provider to inform the consumer.  In a given situation there will be a balance between those reponsibilities.  You are right that a consumer cannot just "claim to have found out today and thus negate the 3 year rule" - there will be a test of whether it would be reasonable in the situation for the consumer to take proactive action to inform themselves (and discern one potential outcome of a change in the terms and conditions) vs a responsibility of the service provider to spell out the intent of the change they are making (if it isn't clear from the wording).

eskbanker

Section62 said:

Nasqueron said:

Could and ought are synonyms for this purpose, I wasn't quoting the exact wording - either word works for the purposes of the post - that you cannot just claim to have found out today and thus negate the 3 year rule.

'Could' and 'ought' aren't usually synonyms in a legal context, and there's likely a very good reason why FCA chose to use 'ought' when drafting their rule.

Agreed - 'ought' is much closer to 'should' than to 'could', and so reflects a different degree of responsibility.

Nasqueron

Section62 said:

Nasqueron said:

Could and ought are synonyms for this purpose, I wasn't quoting the exact wording - either word works for the purposes of the post - that you cannot just claim to have found out today and thus negate the 3 year rule.

'Could' and 'ought' aren't usually synonyms in a legal context, and there's likely a very good reason why FCA chose to use 'ought' when drafting their rule.

There are responsibilities here - the consumer to inform themselves, and the service provider to inform the consumer.  In a given situation there will be a balance between those reponsibilities.  You are right that a consumer cannot just "claim to have found out today and thus negate the 3 year rule" - there will be a test of whether it would be reasonable in the situation for the consumer to take proactive action to inform themselves (and discern one potential outcome of a change in the terms and conditions) vs a responsibility of the service provider to spell out the intent of the change they are making (if it isn't clear from the wording).

But again, if you read my post, I said "for this purpose". 

I am not quoting the law, I am not arguing in court or at the regulator, I am using simplified terms for a consumer forum for people who come for advice without the training / knowledge of a professional.

For this forum, again, could and ought are perfectly fine synonyms for simple advice for the man on the Clapham omnibus.

Middle_of_the_Road

Nasqueron said:

Section62 said:

Nasqueron said:

Could and ought are synonyms for this purpose, I wasn't quoting the exact wording - either word works for the purposes of the post - that you cannot just claim to have found out today and thus negate the 3 year rule.

'Could' and 'ought' aren't usually synonyms in a legal context, and there's likely a very good reason why FCA chose to use 'ought' when drafting their rule.

There are responsibilities here - the consumer to inform themselves, and the service provider to inform the consumer.  In a given situation there will be a balance between those reponsibilities.  You are right that a consumer cannot just "claim to have found out today and thus negate the 3 year rule" - there will be a test of whether it would be reasonable in the situation for the consumer to take proactive action to inform themselves (and discern one potential outcome of a change in the terms and conditions) vs a responsibility of the service provider to spell out the intent of the change they are making (if it isn't clear from the wording).

But again, if you read my post, I said "for this purpose". 

I am not quoting the law, I am not arguing in court or at the regulator, I am using simplified terms for a consumer forum for people who come for advice without the training / knowledge of a professional.

For this forum, again, could and ought are perfectly fine synonyms for simple advice for the man on the Clapham omnibus.

For the purpose of correct interpretation, any terms quoted on this forum could be incorrectly carried forward in legal arguements.
Your phrasing was not accurate....
Just own it and move on.

gt94sss2

I've posted this before, but for those considering using the Financial Ombudsman for issues in future, its worth noting that the Government has issued a new consultation which suggests new limits to their powers that you may want to respond too

It includes a proposal that "the FOS will be required to find that a firm’s conduct is fair and reasonable where it has complied with relevant FCA rules"

It also proposes introducing a new absolute time limit for bringing complaints to the FOS 

https://forums.moneysavingexpert.com/discussion/6618175/review-of-the-financial-ombudsman-service

Section62

Nasqueron said:

Section62 said:

Nasqueron said:

Could and ought are synonyms for this purpose, I wasn't quoting the exact wording - either word works for the purposes of the post - that you cannot just claim to have found out today and thus negate the 3 year rule.

'Could' and 'ought' aren't usually synonyms in a legal context, and there's likely a very good reason why FCA chose to use 'ought' when drafting their rule.

There are responsibilities here - the consumer to inform themselves, and the service provider to inform the consumer.  In a given situation there will be a balance between those reponsibilities.  You are right that a consumer cannot just "claim to have found out today and thus negate the 3 year rule" - there will be a test of whether it would be reasonable in the situation for the consumer to take proactive action to inform themselves (and discern one potential outcome of a change in the terms and conditions) vs a responsibility of the service provider to spell out the intent of the change they are making (if it isn't clear from the wording).

But again, if you read my post, I said "for this purpose". 

I am not quoting the law, I am not arguing in court or at the regulator, I am using simplified terms for a consumer forum for people who come for advice without the training / knowledge of a professional.

For this forum, again, could and ought are perfectly fine synonyms for simple advice for the man on the Clapham omnibus.

Given this whole sub-thread started when you incorrectly tried to correct my post (apparently because I'd simplified the point too much?) I'm at a loss as to why you are now promoting simplicity for the sake of the Clapham omnibus passenger?

https://forums.moneysavingexpert.com/discussion/comment/81560426/#Comment_81560426

For clarity - eskbanker raised a valid query about whether complaints to FOS will be considered time barred.  My response - the one you sought to correct - highlights the point that the time bar which is most likely to apply in this case is "three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint" (quoted from FCA rule DISP 2.8.2.)

The people likely to complain about this are running businesses, so are probably not the typical 'man on the Clapham omnibus'.  If they put complaints forward to FOS and are told they are time barred then it will be essential for them to appreciate the difference between 'should', 'could' and 'ought' because these words are likely to crop up in correspendence between themselves and FOS.

If the situation arises where they want to challenge the time bar, then knowing that the correct word is 'ought' (per the FCA) and what the legal implications of this word are, will be of help in demonstrating that Santander had a role to play in making sure their customers were able to understand the effect of the changes made in 2015.  "Could" in this context means something different.

Like it or not, complaints to Santander and FOS involve the law and legal arguments.  Winning or losing can turn on detailed analysis of a single word or punctuation mark.  So muddying the waters by suggesting different words used in legal documents mean the same thing isn't helpful to the people coming here for help and advice. Even if well intentioned.