Section 75 Claim - Consumer Credit Act 1974 (as amended)

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well it's a standard response really, not much more to say other than if you want to press ahead with the Ombudsman complaint then go for it and rely on what you've already been told.

@R0b: The complaint against the CC Co. concerning the s. 75 claim has been recently lodged with the FOS, and I am now in a 'sit and wait' phase. I expect I will get a call from an FOS Adjudicator in the near future to talk about the s. 75 claim.

Thinking it over: I believe we have covered the "single item" point extremely well (to the best extent possible based on the previous FOS Ombudsman decision / FOS precedent cases / written evidence of two separate invoices at two separate times, itemising a "1st year" and a "2nd year". I am comfortable there is nothing more than can be done to strengthen this point, and it is up to the Adjudicator (and later the Ombudsman) to agree or disagree.

However, could we also discuss / review the "misrepresentation" by the AI point in more detail, as I have some concerns that the circumstantial and written evidence shared with the FOS needs more preparation / support in order to make it stronger.

The basis of the misrepresentation by the AI is what I have described as 'misrepresentation by misleading omission': [The AI] misrepresented the content and syllabus of the Programme through misleading omission of material information and did not provide prospective clients with accurate, clear and unambiguous information before making an application and before accepting an offer, as required by the Competition & Markets Authority.

The background information is:
https://www.timeshighereducation.com...019064.article

and

https://www.gov.uk/government/upload...nsumer_law.pdf

Basically, I would like to prepare the strongest 'hard evidence' of the misrepresentation by the AI, so that I have the most compelling case for the FOS to agree that the AI misrepresented.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well it's a standard response really, not much more to say other than if you want to press ahead with the Ombudsman complaint then go for it and rely on what you've already been told.

R0b: Thank you for this. I have kicked-off the process by submitting a complaint to the FOS through the proper channels, and am now waiting on the FOS.

I expect the whole process will run over the next 3 - 6 months: i.e. until Easter or Summer 2017.

Do watch this space and thank you in advance for the ongoing advice!

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Thanks R0b. I will push onto the FOS with this.

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well it's a standard response really, not much more to say other than if you want to press ahead with the Ombudsman complaint then go for it and rely on what you've already been told.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

From my experience legalese might not be the best way forward, try to keep it short and to the point if possible but include everything you need to give them.

The standard position in s.75 is rescission of the contract and parties put in the position before they had entered into it. If you want to claim more than that then you have to allege fraudulent misrepresentation which may be much harder to prove.

R0b: Thanks for this. Any comments on the redacted CC Co. complaint response is most welcome.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

R0b - below is a copy of the redacted final response to my complaint from the CC Co. re the s. 75 claim. Comments are welcome.

Dear Mrs [X]

Membership Numbers: [X]
Complaint Reference: [X]
Section 75 Reference: [X]

Further to our previous correspondence in respect of the above, I can now confirm my investigation into your complaint has been fully concluded. This letter provides my understanding of your complaint, details of my investigation and findings, together with my final conclusion.

I refer to your letter dated [X] August 2016. I understand you are unhappy with the outcome with the recent claim under Section 75 of the Consumer Credit Act 1974 for a contract you entered into on [X] 2012. The claim was for 21 month [X] course in [X] that you purchased from the merchant, [AI], for an amount of £47,XXX.00. You are dissatisfied with the way [CC Co.] have handled your Section 75 claim and you feel that our response to the claim has significant errors in law and fact, specifically by our decision on the [X] course being a 21 month course with one fee. You express that the course was of two separate purchases and individual tuition years and that you wish to have a refund of the first year's tuition fee you paid for the amount of £18,XXX.00. Consequently, your complaint was forwarded to the [CC Co.] Office for investigation and response.

Please let me start by saying how sorry I am that you have had cause to complain. Our aim is
to provide the best possible service at all times and I am sorry this has not been your
experience.

Having reviewed your Section 75 claim, I understand that you made a purchase for a 21 month [X] course from [AI]. And that you entered into a contract with on [X] 2012, and that you felt that the course was incomplete and you had inadequate tuition services. You have attempted to resolve this directly with [AI] without success. You did not complete the 21 month course and paid and attended for 12 months of tuition.

From our investigation and the information received by the merchant, [AI], your course ran for a 21 month period and for an amount of £57,XXX.00 which you received a £10,XXX.00 [discount] which brought the total down to £47,XXX.00, and you were to pay by instalments. To claim under Section 75, the maximum claim threshold amount is £30,000.00. I realise you paid £18,XXX.00 in instalments in your first twelve months of tuition, however, regardless of how the payments were split, only one item was purchased from [AI], this being the 21 month [X] course. As the 21 month course was for a total of £47,XXX.00, the claim was over the Section 75 threshold amount and we were unable to uphold your claim.

ln view of my investigation, I have been unable to find any evidence that [CC Co.]
has acted incorrectly in investigating or responding to your Section 75 claim and, as such, I
am not in a position to uphold your complaint.

I would like to take this opportunity to thank you once again for your patience whilst this
matter was being investigated, and for your 15 years of loyalty as a customer of [CC Co.].

Yours sincerely

For an on behalf of [CC Co.] Limited

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

From my experience legalese might not be the best way forward, try to keep it short and to the point if possible but include everything you need to give them.

The standard position in s.75 is rescission of the contract and parties put in the position before they had entered into it. If you want to claim more than that then you have to allege fraudulent misrepresentation which may be much harder to prove.

Thanks. Let me draft up the FOS Submission in simple language to the best extent possible. I appreciate the advice R0b

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

From my experience legalese might not be the best way forward, try to keep it short and to the point if possible but include everything you need to give them.

The standard position in s.75 is rescission of the contract and parties put in the position before they had entered into it. If you want to claim more than that then you have to allege fraudulent misrepresentation which may be much harder to prove.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Thanks R0b. A few points:
1) So far in all of my dealings with the FOS I have been quite formal and written in "legal-ease" as such. Should I "dumb down" the language, as I presume the majority of FOS Complainants are normal members of the public?
2) Yes, the CC Co. has not attempted to make any comment / defense / denial of the "misrepresentation" by the AI, so this is entirely a topic for the FOS to decide upon (based on the evidence / circumstantial evidence and with / without the involvement of the AI)
3) I remain unclear as to whether a s. 75 claim for misrepresentation is for the amount paid only, or the amounts + consequential loss (in the cost of rectifying the situation, which would the cost of another programme with a different AI elsewhere).

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Yes there is a possibility that they could find there be no misrepresentation but that is a question of fact and would require the institute to be involved to make a determination. Perhaps they may wish to do that but the complaint you are making is aimed directly against the bank, though I suppose you could also add the institution to the mix if you wanted to but I believe the FOS has already indicated that it does not have jurisdiction to investigate the institution.

Just skimming back through this thread, the final decision from the bank doesn't appear to indicate that they are disputing any misrepresentation but do take issue with the fact that it is a regulated agreement that is beyond the scope of s.75. By not addressing the misrepresentation issue, you could suggest that it is to be inferred that they accept that a misrepresentation occurred but are not liable to pay because it exceeds the amount allowed under s.75

The question therefore to be answered by the FOS is whether or not the agreement falls within the scope of s.75 and if so, then the bank must pay back the monies.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Morning,

Well the complaint form is relatively straightforward. I know this has been going on for some time but you probably are going to need to be concise and condense it to the main points in your complaint, bearing in mind the Ombudsman people are not legally trained.

You should make reference and attach a copy of the Ombudsman's initial view that the agreement was not regulated by the CCA and that the agreement is two separate agreements because you were invoiced each year. In light of that, you have exhausted your options with the bank and they are refusing to pay out on the basis that the agreement is regulated under the CCA. You would like the Ombudsman to find in your favour and confirm what was previously confirmed by them in that the agreement is two separate ones which entitles you to reclaim the amount you have paid in the first year.

Thanks. Another issue is making the point that the service by the AI was misrepresented: I have prepared as much material as possible on this, but presumably there is still the challenge of convincing the FOS of this (as they could agree on the two 'single item' points, but find no misrepresentation).

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Morning,

Well the complaint form is relatively straightforward. I know this has been going on for some time but you probably are going to need to be concise and condense it to the main points in your complaint, bearing in mind the Ombudsman people are not legally trained.

You should make reference and attach a copy of the Ombudsman's initial view that the agreement was not regulated by the CCA and that the agreement is two separate agreements because you were invoiced each year. In light of that, you have exhausted your options with the bank and they are refusing to pay out on the basis that the agreement is regulated under the CCA. You would like the Ombudsman to find in your favour and confirm what was previously confirmed by them in that the agreement is two separate ones which entitles you to reclaim the amount you have paid in the first year.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Thanks

[charitynjw]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

I'll give [MENTION=71570]R0b[/MENTION] a nudge for you.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Yes that is correct and yes I have all the previous FOS final decision in letter form by post