Claims Management company and 84 yr old Dad

para1505 · 19 April 2016 at 2:43PM

Looking for some advice as I've returned from a 10 day holiday and found an invoice from a claims management company for £12000+ sitting on my dads kitchen table.

In short, Dad was sold a series of investments by his bank in mid 2000's to park his redundancy which tanked within months and cost his a fortune to bail out at the time to save his retirement pot diminishing further. Move on 10 years and Dad came across the paperwork and asked me to give him a hand compiling a complaint to bank about missold investment, we worked on this over the last month and were looking to submit soon.

Whilst I was away on hols, Dad came across an advert for claims company in newspaper and called them for advice. Events unfolding quickly with a courier at his door within 24 hours to collect the documentation and for him to sign 1 page contract ( no copies given ) with the hefty fees outlined. Two days after receiving paperwork, the claim management company submitted to bank who called in spoke to Dad two days later and made him an offer that day of which £12k was claims company share of the spoils.

Setting aside that my Dad doesn't keep in the best of health and forgets more than he remembers nowadays, he is now really upset as he didn't appreciate it would cost him this much for 2 days help.

My issue is the 14 days cooling off period that's statutory in consumer law nowadays. This is mentioned in the T & C's on the contract but no mention of the need for the customer to waive this right if the work is commenced within this time period.

My Dad had no chance to cancel this contract as the work started immediately and was complete within 10 days of the 14 day cooling off period. Surely something not right about this?

The Legal Ombudsman and Claims Management Regulator both say they would not deal with this as its a legal matter of consumer law.

My solicitor, Trading Standards and Consumer Direct all say that this is a serious breach of consumer law and should be investigated, however the courts would have to be the final arbiter and I don't want to drag dad into courts!

Anybody have any thoughts on a way forward?

dunstonh · 19 April 2016 at 4:27PM

Setting aside that my Dad doesn't keep in the best of health and forgets more than he remembers nowadays, he is now really upset as he didn't appreciate it would cost him this much for 2 days help.

It doesnt matter if it took them 5 minutes or 5 years. If the contract stated their fees and it was on a no win, no fee basis, then these are usually percentage based and chargeable to VAT.

He signed that contract and agreed the terms.

My issue is the 14 days cooling off period that's statutory in consumer law nowadays. This is mentioned in the T & C's on the contract but no mention of the need for the customer to waive this right if the work is commenced within this time period.

It is too late. The service was provided and the redress paid. you cant pull out at that point. Remember that this is service. Not a purchase of goods.

My Dad had no chance to cancel this contract as the work started immediately and was complete within 10 days of the 14 day cooling off period. Surely something not right about this?

Its perfectly fine.

My solicitor, Trading Standards and Consumer Direct all say that this is a serious breach of consumer law and should be investigated, however the courts would have to be the final arbiter and I don't want to drag dad into courts!

What breach are they saying existed as no breach appears to have occurred.

1 - he employed them
2 - they did what he employed them to
3 - he received compensation and service ended.

Cancelling a service within the cooling off period does not mean you are exempt from paying. If he cancelled within 14 days on stage 1 or 2 of the above then he could pull out and just pay an admin cost. However, once you get to stage 3 and the case has paid out you are no longer cancelling the service as the service has been completed to the end. There is no longer anything to cancel.

Here is a copy and paste in respect of consumer contract regulations (the red bit being highlighted by me):
Cancelling services

Your right to cancel You have 14 days from entering into a service contract in which you can cancel it.

The trader shouldn’t start providing the service before the 14 day cancellation period has ended, unless you have requested this.

If you request a service starts straightaway In this instance you will still have the right to cancel, but you must pay for the value of the service that is provided up to the point you cancel.

For example, if you buy a service like gym membership and start using the gym and then change your mind within this 14 day time period, you will be refunded but could be charged for the amount of gym time you used.

If the service is provided in full within 14 days The right to cancel can be lost during the cancellation period if the service is provided in full before the 14 days elapses.

para1505 · 19 April 2016 at 4:43PM

Thanks for taking the time to feed back your thoughts, its very much appreciated.

The breach in consumer rights that they have all advised is that you ( the customer ) have to give written consent on a specific waiver form that clearly states that you waive your right to the 14 day cooling off period and that you consent to the work starting immediately. There can be no implied consent and the onus is on the company to prove they have this written waiver in place before they start work or they are in breach of statutory consumer rights law.

This is not my view as I'm not qualified to comment only report what I've been advised!

glentoran99 · 19 April 2016 at 4:47PM

para1505 wrote: »

Thanks for taking the time to feed back your thoughts, its very much appreciated.

The breach in consumer rights that they have all advised is that you ( the customer ) have to give written consent on a specific waiver form that clearly states that you waive your right to the 14 day cooling off period and that you consent to the work starting immediately. There can be no implied consent and the onus is on the company to prove they have this written waiver in place before they start work or they are in breach of statutory consumer rights law.

This is not my view as I'm not qualified to comment only report what I've been advised!

http://www.which.co.uk/consumer-rights/advice/how-do-i-cancel-an-order-for-a-service-bought-online

If you agree to the service starting within the 14 day cancellation period, the retailer can charge you for any service you have had the benefit of if you decide to cancel

para1505 · 19 April 2016 at 5:18PM

My solicitor through which legal has just reiterated that he didn't consent to the service starting as no waiver has been signed before the work commenced. Various clauses mentioned in the specific act of law and advised to company and await response before deciding on next step.

dunstonh · 19 April 2016 at 6:06PM

The breach in consumer rights that they have all advised is that you ( the customer ) have to give written consent on a specific waiver form that clearly states that you waive your right to the 14 day cooling off period and that you consent to the work starting immediately.

Not with financial services. It is exempt. Financial services complaints are regulated and have their own set of rules.

B. Exemptions
Which sectors are not covered?
1. Contracts exempt from the provisions in the regulations:
o gambling as covered by the Gambling Act 2005
o construction and sale of immovable property including building of new
properties
o residential letting contracts
o package travel contracts
o timeshare contracts
o supply of consumables by regular roundsmen such as milkmen
o purchases from vending machines
o single telecom connections (e.g. payphones and caf! internet
connection)
o financial services are generally exempt although warranties, credit
agreements and insurance which are offered in conjunction with the
sale of a non-financial goods or services, will still need to meet the
requirements for cancellation of ancillary contracts and additional
payments not being a default option.

What types of contracts are exempt from cancellation rights?
6. As well as contracts wholly exempted from the regulations, a number of
online and off-premises contracts do not attract cancellation rights. These
include:
o ‘investment’ type products such as vintage wines, subject to
speculative purchase and where the price in the financial market may
vary (utilities such as supply of gas are not covered by this exception).
o Bespoke and customised goods
o Goods which will deteriorate or expire rapidly
o Newspapers and magazines (but not subscriptions for such)
o Contracts concluded at public auction
o Goods received sealed for health protection or hygiene reasons once
unsealed
o Sealed audio, video and software products once unsealed
o Goods once they have been inseparably mixed after delivery
o Contracts where the consumer has contacted the trader to effect
urgent household repairs
o Contracts for accommodation, transport of goods, vehicle rental,
catering or services related to leisure activities if the contract provides
for a specific date or period of performance.
o Services which have been fully performed (i.e. completed).

Out of interest, what does the CMC contract say about the period of service?

magpiecottage · 19 April 2016 at 6:18PM

Actually, there may be room to do something about this.

You would need your father to give written authority for you to act in his behalf and then to put in a complaint based on breaches of the Conduct of Authorised Persons Rules 2014.

In particular, rule 15 says, "A business, unless subject to Regulation (8) of the Damages-Based Agreements Regulations 2013, must allow a ‘cooling off’ period of at least 14 days after signing any agreement, during which period the client may cancel the agreement and be entitled to a refund of any payments made to the business or in connection with any insurance policy, loan or other agreement taken out in relation to the agreement."

An argument that, acting with unnecessary haste, the business has taken advantage of his vulnerability and attempted to deny him his consumer rights, this breaching general rules 1a, 1c, 1e (about general propriety),

10 Requiring them to make enquiries about whether the consumer has alternative mechanisms for making a claim etc.

11k How the client may cancel the contract and the consequences of cancellation including the reimbursement of any costs paid during the cancellation period and any charges for work completed after the 14 day cooling off period
13. A business must make explicit to the client his right to seek further advice or to shop around, subject to any time limits within which a claim must be made. (if applicable)
14. A business must take reasonable steps to ensure that the client is able to understand the contract that he is being asked to agree to.
15. A business, unless subject to Regulation (8) of the Damages-Based Agreements Regulations 2013, must allow a ‘cooling off’ period of at least 14 days after signing any agreement, during which period the client may cancel the agreement and be entitled to a refund of any payments
made to the business or in connection with any insurance policy, loan or other agreement taken out in relation to the agreement.

This last one is important if the 14 days has yet to expire. You need to get the withdrawl in with immediate effect and then get into a dispute afterwards if necessary.

Please name and shame the CMC. (Actually they have no shame so just name!)

glentoran99 · 19 April 2016 at 6:20PM

para1505 wrote: »

My solicitor through which legal has just reiterated that he didn't consent to the service starting as no waiver has been signed before the work commenced. Various clauses mentioned in the specific act of law and advised to company and await response before deciding on next step.

So why are you asking here

para1505 · 19 April 2016 at 6:32PM

Thanks gain for your comments.

You hit on a great point I specifically asked about this afternoon ie is this company exempt from the regulations for being in financial services and was advised that this was not a financial service ( i.e not a bank, insurance company, pension provider etc selling me a product) but a consultancy service from a service provider.

No mention of period of service on the contract, can you advise what CMC is?

dunstonh · 19 April 2016 at 6:55PM

I suspect this is going to turn into a grey area that is untested. CMC = claims management company.

A CMC is not regulated by the FCA. However, they are a service that uses the regulated complaints process and ombudsman of financial services companies. A process that requires things to be carried out within a timely manner. You cant just wait 14 days. Unregulated financial services are still financial services. So, is the CMC operating within financial services or not.

[Deleted User] · 20 April 2016 at 1:31AM

glentoran99 wrote: »

So why are you asking here?

My thoughts too.

OP conveniently ignored your query, I see.

Claims Management company and 84 yr old Dad

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