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Firstplus' OFT reprimand - Disclosure

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  • #31
    Re: Firstplus' OFT reprimand - Disclosure

    Have you tried a pro bono barrister...........there are also some QC's that do pro bono work??

    Sparkie

    Comment


    • #32
      Re: Firstplus' OFT reprimand - Disclosure

      I'm sending my case summary to the Bar Pro Bono Unit as well as Law Works

      http://www.barprobono.org.uk/

      http://www.lawworks.org.uk/about-us

      Hopefully one of them will be able to assist.

      Thanks for your advice.

      Comment


      • #33
        Re: Firstplus' OFT reprimand - Disclosure

        Just an update on this. I've sent off a request to LawWorks to try and get a pro bono opinion. Wait and see on that one.

        I received the PHSO review decision. This confirmed their stance that in their opinion the ICO are best placed to decide whether the OFT have applied the Enterprise Act prohibitions correctly. See attached.

        I'm still of the belief that the PHSO should've sought the ICO input themselves, complete lack of ownership. Guess where I go if i disagree with the ICO, you got it, the PHSO.

        The ICO already have the referral so i'll be chasing them next week as i've got a named case officer now.

        In addition, i've been attempting to get the regulators to use the Consumer Redress Scheme powers to investigate whether or not we, as customers of FirstPlus have lost out financially as a result of FirstPlus' actions to date.

        The problem with this is that only the FSA have these powers afforded them under section 404 of the Financial Services and Markets Act. The OFT, who regulate our loans, do not have these powers.

        A link to the guidance is here. http://www.fsa.gov.uk/pubs/guidance/guidance10.pdf

        However, see 9.5 of the guidance which opens the door to non FSA regulated activities.

        I've asked the FSA, they refused, stating that only Treasury can extend their powers.

        I ask them to ask Treasury, they refused saying I had to ask them.

        I asked Treasury, and after nearly 4 months of trying to dodge the issue saying they can't get involved they've come back and said I need to ask The Financial Secretary to the Treasury stating my reasons.

        My referral is below, relatively short but I hope it gets the message across.
        .................................................. ............................................
        Mr Hoban. I write to you, as advised by Treasury, to seek your approval for the FSA to be allowed to consider a Consumer Redress Scheme in respect of the Second Charge Lender – FirstPlus Financial.

        You may recall that my MP – Paul Maynard (Blackpool North & Cleveleys), wrote to you on my behalf earlier this year. My submission to Paul is attached for convenience as is your reply (Reply from Minister May 11). Unfortunately the reply was of little use as I had already gone down the suggested routes, without success.

        The purpose of this email is a direct offshoot to my ongoing issues with FirstPlus. It is clear from my dealings with the FOS & the OFT that neither are capable of dealing with consumer redress in this case.

        I have requested that the FSA use their powers, afforded them under section 404 of the FSMA, to identify if the Policies and Procedures, linked to the Section 33A Requirement Notice issued by the OFT against FirstPlus in December 2010, were retrospectively applied, whether it would highlight consumer detriment. As per the guidance: -

        · Investigate whether, on or after a specific date, it has failed to comply with particular requirements that are applicable to an activity it has been carrying on; Have FirstPlus complied with the policies and procedures as per the OFT requirement notice from 2008 (the downturn in the economy)?

        · Determine whether the failure has caused (or may cause) loss or damage to consumers; If the policies has been in place from 2008 what variation would there have been to customer APR’s?

        . Determine what the redress should be in respect of the failure; Have we been paying more than we would have done if the policies had been in place from 2008?

        · Make the redress to the consumers.

        The FSA refuse to consider this request as they don’t regulate Second Charge Loans. They state: -

        S404 of the Financial Services Act 2010 (consumer redress scheme) only covers requirements imposed on a firm under the Financial Services & Markets Act (FSMA), and does not have any jurisdiction over consumer credit business carried out within the scope of the CCA.

        I have asked Treasury to give consideration to extending the FSA’s powers as is allowed under 404g of the FSMA. Their response is attached (Reply.PDF).

        The inference in the Treasury reply is clear in that they do not believe this issue has the magnitude to warrant action – as you can imagine I disagree.

        · FirstPlus has over 50,000 customers – ALL are affected by this action,

        · FirstPlus have increased their profit on the loans by over £100m a year, making no attempt to mask the funding of PPI repayments from this extra income.

        Any semi-competent accountant will be able to see the evidence in the Annual Accounts.

        · FirstPlus’ average interest expense in 2007 was 5.75%, in 2010 it was 1.24%.

        · FirstPlus’ average interest income in 2007 was 7.28%, in 2010 it was 8.41%.

        EVERY cost associated with my loan, and every other customers loan, has gone down MASSIVELY.

        Again, any semi-competent accountant could restate FirstPlus’ Annual Accounts based on the costs of borrowing, i.e. Bank of England base rate, still being 5% like it was in 2007. The simple fact is they’d be losing over £100m A YEAR.

        Why are we expected to pay more, THOUSANDS OF POUNDS MORE??

        Is £400,000,000 profiteered from 50,000 customers insufficient to satisfy the “widespread” or “regular” pre-condition for a Consumer Redress Scheme?

        That figure is just FirstPlus. Maybe if the issue was extended to other sub-prime secured loan companies, e.g. Picture and Welcome, the issue would become all too apparent.

        I do not intend to go into much detail here, as it’s all been detailed before. The simple fact is, the OFT have, as a direct result of consumer complaints, formally reprimanded FirstPlus by means of CCA Section 33a Requirement Notice.

        It is imperative that due consideration is given to whether customers of FirstPlus have been financially affected by FirstPlus’ actions – which they have been formally prevented from continuing as per the Section 33a Requirement Notice. To not do so will be unjust and negligent.

        Please remember: -
        The Financial Ombudsman Service cannot help here.

        The Office of Fair Trading cannot help here

        Unless I can obtain pro bono representation, court action is beyond my reach.

        The Financial Services Authority could help, but only if they are given approval by Treasury.

        I look forward to hearing from you.
        Last edited by Halifax71; 20th November 2011, 13:27:PM.

        Comment


        • #34
          Re: Firstplus' OFT reprimand - Disclosure

          Its hard work isnt it?
          Darkness is only the absence of light; ignorance is only the absence of knowledge.

          Comment


          • #35
            Re: Firstplus' OFT reprimand - Disclosure

            Hard work? That's an understatement.

            On a related note I had an email from the OFT's Head of Secured Lending this week.


            Now the OFT Second Charge Lending guidance states

            Rates should only be increased on a loan to recover genuine increases in costs which have an effect on that loan. See 4.4 http://www.oft.gov.uk/shared_oft/bus...al/oft1105.pdf

            In her email she says.

            “You have asked how your APR can be higher now than it was at loan inception, against the backdrop of massively reduced costs for the business, and still be compliant with the Second Charge Lending Guidance(SCLG). It may be helpful if I make it clear that the SCLG does not require lenders to reduce rates where their costs reduce. If it did require that, it would say so."


            Wow, the OFT think this is FAIR? :tinysmile_hmm_t2:

            Comment


            • #36
              Re: Firstplus' OFT reprimand - Disclosure

              Consumer protection, don't you just love it?

              Comment


              • #37
                Re: Firstplus' OFT reprimand - Disclosure

                Originally posted by Halifax71 View Post
                Just an update on this. I've sent off a request to LawWorks to try and get a pro bono opinion. Wait and see on that one.

                I received the PHSO review decision. This confirmed their stance that in their opinion the ICO are best placed to decide whether the OFT have applied the Enterprise Act prohibitions correctly. See attached.

                I'm still of the belief that the PHSO should've sought the ICO input themselves, complete lack of ownership. Guess where I go if i disagree with the ICO, you got it, the PHSO.

                The ICO already have the referral so i'll be chasing them next week as i've got a named case officer now.

                .
                And back it goes to the PHSO. :tinysmile_hmm_t2:

                The ICO reply

                I write further to our telephone conversation of two weeks ago, and your email of 28 November 2011.


                Having looked over the correspondence relating to your complaint, and from our conversation, it is clear that you are mainly interested in pursuing your request under section 241a of the Enterprise Act 2002 (the EA), rather than the provisions of the Freedom of Information Act 2000 (the FOIA). Following our conversation I have done some research into the remit of the ICO, and I can confirm that we can only consider disclosure under the FOIA. We therefore cannot consider whether the OFT has correctly applied the provisions of section 241a of the EA.


                It appears that there may have been some confusion in the Parliamentary and Health Service Ombusdmans’ (the PHSO) communications with us on this matter, and as a result we will be contacting the PHSO to clarify our position in this matter. To explain the confusion to you, section 44 of the FOIA provides an exemption to requested information where the public authority holding the information is prohibited from disclosing it by or under any enactment. Section 237 and 238 of the EA can prohibit the disclosure of information in this way, and so any investigation we would carry out in relation to section 44 of the FOIA would have to consider whether sections 237 and 238 were applicable to the information. This is the only part of the EA that the ICO can consider, and this is only in relation to section 44 of the FOIA. As explained above, we cannot look at how requests made under section 241a of the EA have been responded to under that legislation.


                I apologise that this was not made clearer to you earlier. In light of the comments you have made both in writing and during our telephone conversation it seems clear that you do not wish your complaint to be looked at in relation to the FOIA. However, if you would like us to consider whether the FOIA has been correctly applied to your request, please let me know within the next 10 working days and I will begin an investigation. If I do not hear from you within this time period I will close the case.


                I hope this information is of use to you, and I apologise again that you were not informed of the extent of our power in this case at an earlier stage.

                Comment


                • #38
                  Re: Firstplus' OFT reprimand - Disclosure

                  Originally posted by Halifax71 View Post
                  In addition, i've been attempting to get the regulators to use the Consumer Redress Scheme powers to investigate whether or not we, as customers of FirstPlus have lost out financially as a result of FirstPlus' actions to date.

                  The problem with this is that only the FSA have these powers afforded them under section 404 of the Financial Services and Markets Act. The OFT, who regulate our loans, do not have these powers.

                  A link to the guidance is here. http://www.fsa.gov.uk/pubs/guidance/guidance10.pdf

                  However, see 9.5 of the guidance which opens the door to non FSA regulated activities.

                  I've asked the FSA, they refused, stating that only Treasury can extend their powers.

                  I ask them to ask Treasury, they refused saying I had to ask them.

                  I asked Treasury, and after nearly 4 months of trying to dodge the issue saying they can't get involved they've come back and said I need to ask The Financial Secretary to the Treasury stating my reasons.

                  My referral is below, relatively short but I hope it gets the message across.
                  .
                  Received a dismissive reply, not even looked at it. Sent a good old rant back asking for an answer to the question, either yes, no or that they actually refuse to even consider.

                  Comment


                  • #39
                    Re: Firstplus' OFT reprimand - Disclosure

                    Originally posted by Halifax71 View Post
                    Hard work? That's an understatement.

                    On a related note I had an email from the OFT's Head of Secured Lending this week.


                    Now the OFT Second Charge Lending guidance states

                    Rates should only be increased on a loan to recover genuine increases in costs which have an effect on that loan. See 4.4 http://www.oft.gov.uk/shared_oft/bus...al/oft1105.pdf

                    In her email she says.

                    “You have asked how your APR can be higher now than it was at loan inception, against the backdrop of massively reduced costs for the business, and still be compliant with the Second Charge Lending Guidance(SCLG). It may be helpful if I make it clear that the SCLG does not require lenders to reduce rates where their costs reduce. If it did require that, it would say so."


                    Wow, the OFT think this is FAIR? :tinysmile_hmm_t2:
                    Because you are only told that interest rates can be increased if the lenders borrowing interest rate goes up......but will not reduce if their rate is reduced could be truly argued that this is a misrepresentation by omission....failing to tell you this, is an unprepared for extra loss you suffer by not being told this
                    I think this is a good argument and "could" win a case if brought under a Claim under the Misreprentation Act


                    "To make a 'misrepresentation' simply means to state as a fact something which is false or untrue. [To make a material 'omission' is to omit or withhold the statement of a fact, knowledge of which is necessary to make other statements not misleading.] Thus, to constitute fraud, a misrepresentation must be false [or an omission must make other statements misleading], and it must be 'material' in the sense that it relates to a matter of some importance or significance rather than a minor or trivial detail."


                    B. Misrepresentation by Omission Negligent misrepresentation can also occur as a result of the failure to disclose material information. Alaska has adopted the standard of the Restatement (Second) of Torts § 551 regarding misrepresentation by omission. One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability as for an affirmative misrepresentation if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter.

                    I would say not making you aware of the interest not falling in line with bank rate is an omission of significant material fact IMO.........
                    BUT I am not legally trained proper advice shouold be sought to find out if this has legal merit
                    Sparkie
                    Last edited by Sparkie1723; 23rd December 2011, 21:31:PM.

                    Comment


                    • #40
                      Re: Firstplus' OFT reprimand - Disclosure

                      Minor update. Below is an update from the ICO who are furthering the FoIA aspects of the disclosure request. I can’t see what relevance this has on the PHSO as they are supposed to be considering my maladministration claims in respect of the OFT’s refusal to disclose under s241a EA.

                      I guess it’s just a way of avoiding answering the question as if the ICO find a route to disclosure then the PHSO won’t need to rule on the maladministration.




                      16 January 2012

                      Reference:

                      Dear Mr,

                      Thank you for your email of
                      12 January 2012.

                      Having considered your request and the response from the Office of Fair Trading (the OFT), it has become apparent that the case is not as straightforward as it may first have seemed. This is because the OFT has applied two separate exemptions to the information you have requested, and one of these exemptions requires a detailed consideration of the public interest test to see if it applies.

                      It is also not clear which exemption the OFT is applying to which parts of your request. While it is clear that the exemption found in section 44 of the Freedom of Information Act 2000 (the FOIA) will apply only to information that the OFT has obtained in the exercise of its functions, it is not clear which information comes under this description. The OFT has also applied the exemption found in section 31 of the FOIA to parts of your request. This exemption relates to the release of information which would be likely to prejudice regulatory activity, and it is a much more complex exemption to apply.

                      In light of all of the above, your complaint is now being assigned to a senior casework officer for a more detailed consideration. They will contact you shortly to explain the scope of their investigation. While this will obviously mean that this case will be ongoing for longer than you will have hoped, there should be no further delay incurred by the transfer of the case to another officer.

                      Finally, the PHSO has recently been in contact with me in relation to this complaint, and has asked to be made aware of the decision we reach in this case. Unless you have any particular concerns on this point then we will inform the PHSO of the decision we reach in this case.

                      Comment


                      • #41
                        Re: Firstplus' OFT reprimand - Disclosure

                        Originally posted by ncf355 View Post
                        Shell,

                        did you take action on this?

                        Surely you have a right for redress as they were acting against your best interests and in their own favour?

                        (Fudiciary duty?)
                        No, could I, should I and where do I start. I hate this mob with a passion. I really believe I was set up, either to give the mortgage advisor a hefty commission or this was Barclays policy to squeeze more out of its customers.

                        Comment


                        • #42
                          Re: Firstplus' OFT reprimand - Disclosure

                          Originally posted by Halifax71 View Post
                          Minor update. Below is an update from the ICO who are furthering the FoIA aspects of the disclosure request. I can’t see what relevance this has on the PHSO as they are supposed to be considering my maladministration claims in respect of the OFT’s refusal to disclose under s241a EA.

                          I guess it’s just a way of avoiding answering the question as if the ICO find a route to disclosure then the PHSO won’t need to rule on the maladministration.


                          Letter from the PHSO confirming that I have to wait for the FoIA consideration. At least it's a bit less abrupt than their last one.

                          If anyone has any info that could assist here please share. Want to make sure i'm not missing anything as clearly they are trying everything in the book to avoid disclosing.

                          Thanks
                          Last edited by Halifax71; 22nd January 2012, 10:27:AM.

                          Comment


                          • #43
                            Re: Firstplus' OFT reprimand - Disclosure

                            Back to the PHSO I go.

                            I knew this would happen as it was clear the requested info was "specified" hence why I used section 241a of the EA.
                            At least now the PHSO can't dodge any more - well at least I hope not.

                            -------

                            As you are aware, I have now received the OFT’s response to my query as to whether all of the information you requested is covered by section 238 of the Enterprise Act 2002 or whether some of the information is covered solely by section 31 of the Freedom of Information Act 2000.


                            That response, which is from the OFT’s General Counsel, clarifies the point by informing me that some of the withheld information consists entirely of “specified information” and the remainder, while covered by section 31 of FOIA, also contains, discusses and refers to “specified information”. Therefore, the information covered by sections 31 and 44 of FOIA is very closely interwoven.


                            As you will be aware, specified information is defined in section 238(1) of the Enterprise Act 2002 as information which comes to a public authority in connection with its exercise of certain functions. The OFT has stated, in earlier correspondence, that the withheld information came to it in connection with its functions under the Consumer Credit Act.


                            Section 44(1) of FOIA provides a statutory bar against the release of information if such release is prohibited by or under any enactment. In this case, that enactment is section 237 of the Enterprise Act 2002, which prohibits the disclosure of specified information other than in certain circumstances. The exemption under section 44(1) of FOIA is absolute.


                            Given that all of the withheld information either consists entirely of, or contains, specified information, the Commissioner would consider that it is completely covered by section 44(1) of the FOIA. As this is an absolute statutory bar, unfortunately the Commissioner cannot assist you further in obtaining the withheld information. He has no jurisdiction to assess the merits of a public authority’s application and interpretation of any legislation other than that which he regulates.


                            As you have previously referred this complaint to the PHSO, who had directed you to our office, may I suggest that you refer to them again as they would appear to be a more appropriate body to assess the OFT’s application of the provisions of the Enterprise Act 2002.


                            I am sorry that I could not have been of more help to you. I intend writing to the OFT to let them know that I cannot proceed any further with your complaint. I would be happy to write to the PHSO also, should you wish, to let them know that you referred the complaint to our office as they directed, however we consider that it would be more appropriate for them to deal with. Please let me know if you wish me to do this.

                            Comment


                            • #44
                              Re: Firstplus' OFT reprimand - Disclosure

                              I've been advised by the PHSO that my case has started their complaints handling process from scratch. I've been provided with a new reference number and advised that they will decide within the next 40 days whether or not they will investigate. It's like the past year hasn't even happened.

                              I've spoken to my previous contact querying why my original complaint was closed, and he confirms that they stand by their decision to refer to the ICO and were correct to close. This is despite it being proven to be incorrect as per the ICO's confirmation that they cannot consider. I told them this would happen but they refused to listen.

                              Maybe I shouldn't expect more, but once again i'm gobsmacked.

                              On a positive note, the consumer group i'm involved with has cobbled together enough money to obtain a Barristers opinion on the whole issue.

                              I've been invited over to see the Barrister (and the Solicitor) next Friday.
                              I'm taking this as a positive as he wants to fully explain his opinion and advise what the options are going forward. The positive, it's definitely not an outright rejection of the issues, or presumably he wouldn't want to meet.
                              I don't know anything more than that at the moment.

                              Comment


                              • #45
                                Re: Firstplus' OFT reprimand - Disclosure

                                Originally posted by Halifax71 View Post
                                Back to the PHSO I go.

                                I knew this would happen as it was clear the requested info was "specified" hence why I used section 241a of the EA.
                                At least now the PHSO can't dodge any more - well at least I hope not.

                                -------

                                As you are aware, I have now received the OFT’s response to my query as to whether all of the information you requested is covered by section 238 of the Enterprise Act 2002 or whether some of the information is covered solely by section 31 of the Freedom of Information Act 2000.


                                That response, which is from the OFT’s General Counsel, clarifies the point by informing me that some of the withheld information consists entirely of “specified information” and the remainder, while covered by section 31 of FOIA, also contains, discusses and refers to “specified information”. Therefore, the information covered by sections 31 and 44 of FOIA is very closely interwoven.


                                As you will be aware, specified information is defined in section 238(1) of the Enterprise Act 2002 as information which comes to a public authority in connection with its exercise of certain functions. The OFT has stated, in earlier correspondence, that the withheld information came to it in connection with its functions under the Consumer Credit Act.


                                Section 44(1) of FOIA provides a statutory bar against the release of information if such release is prohibited by or under any enactment. In this case, that enactment is section 237 of the Enterprise Act 2002, which prohibits the disclosure of specified information other than in certain circumstances. The exemption under section 44(1) of FOIA is absolute.


                                Given that all of the withheld information either consists entirely of, or contains, specified information, the Commissioner would consider that it is completely covered by section 44(1) of the FOIA. As this is an absolute statutory bar, unfortunately the Commissioner cannot assist you further in obtaining the withheld information. He has no jurisdiction to assess the merits of a public authority’s application and interpretation of any legislation other than that which he regulates.


                                As you have previously referred this complaint to the PHSO, who had directed you to our office, may I suggest that you refer to them again as they would appear to be a more appropriate body to assess the OFT’s application of the provisions of the Enterprise Act 2002.


                                I am sorry that I could not have been of more help to you. I intend writing to the OFT to let them know that I cannot proceed any further with your complaint. I would be happy to write to the PHSO also, should you wish, to let them know that you referred the complaint to our office as they directed, however we consider that it would be more appropriate for them to deal with. Please let me know if you wish me to do this.
                                A senior panel of bods at the PHSO are finally due to rule on this on the 15th June (it's taken 18 months) - will be interesting to see what the reason is when they no doubt refuse.

                                Legal action is pending so maybe the court will order disclosure should the PHSO agree that the OFT have a legal and proper reason to withhold.

                                Comment

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