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

[dossier]

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

Just a thought.

If it is considered to be one agreement spanning 2 years, then it would require 6 payments (3 per year).

Would that then bring it within the scope of CCA 1974?

@R0b

Thanks for this. Let's suppose it did fall under CCA 1974, what would the implications of this be?

[charitynjw]

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

Thanks for this. Let's suppose it did fall under CCA 1974, what would the implications of this be?

Hi dossier (I was very careful to insert the 'i' there.......I certainly wouldn't want to be accused of stereotyping students, lol!)

The first thing that comes to mind is that they should be regulated by the FCA.

But let's not stray too far down this path without further input.
[MENTION=6]Amethyst[/MENTION] & [MENTION=71570]R0b[/MENTION] ....................any thoughts? (I still think, based on para 15 of the T&Cs, that there are 2 discrete years)

[R0b]

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

Hi dossier (I was very careful to insert the 'i' there.......I certainly wouldn't want to be accused of stereotyping students, lol!)

The first thing that comes to mind is that they should be regulated by the FCA.

But let's not stray too far down this path without further input.
@Amethyst & @R0b ....................any thoughts? (I still think, based on para 15 of the T&Cs, that there are 2 discrete years)

You do make a fair point, although I disagree that para 15 makes it 2 separate years, the agreement as a whole is a fixed sum credit which as you say exceeds 4 payments in 12 months and so you could argue that it is a regulated agreement. If they don't have a licence then they could be in breach.

You could float that idea and if they then say well actually the contract is interpreted as being 2 separate agreements and therefore falls within the exemption then you could use that written confirmation as the basis of your s.75 claim in arguing that the agreement is 2 distinct contracts as opposed to 1.

[dossier]

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

You do make a fair point, although I disagree that para 15 makes it 2 separate years, the agreement as a whole is a fixed sum credit which as you say exceeds 4 payments in 12 months and so you could argue that it is a regulated agreement. If they don't have a licence then they could be in breach.

You could float that idea and if they then say well actually the contract is interpreted as being 2 separate agreements and therefore falls within the exemption then you could use that written confirmation as the basis of your s.75 claim in arguing that the agreement is 2 distinct contracts as opposed to 1.

Thanks - this is an excellent idea.

The academic institution is regulated by the FCA, but there is no explicit wording to state that the T&Cs are governed by the CCA 1974.

Let's suppose the T&Cs do fall under the CCA 1974, then what is the implication of this? I.e. what more would we expect to see in the T&Cs, or how are the T&Cs not compliant with the CCA 1974?

[dossier]

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

You do make a fair point, although I disagree that para 15 makes it 2 separate years, the agreement as a whole is a fixed sum credit which as you say exceeds 4 payments in 12 months and so you could argue that it is a regulated agreement. If they don't have a licence then they could be in breach.

You could float that idea and if they then say well actually the contract is interpreted as being 2 separate agreements and therefore falls within the exemption then you could use that written confirmation as the basis of your s.75 claim in arguing that the agreement is 2 distinct contracts as opposed to 1.

Thanks R0b. Just so that I am clear: can you point me to the relevant CCA material that would make them in breach of the CCA if the whole agreement is interpreted as a single contract for the whole 2 years?

[dossier]

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

I.e. you are recommending I get a statement from the Academic Institution as to whether they regard it as a single agreement for 2 years, or two 1 year agreements?

If they regard it as a single agreement for 2 years, the obvious question is then whether they are compliant with the Consumer Credit Act 1974?

However, I would like some clarity on the implications (or otherwise) of their compliance with the CCA 1974.

Thank you

[dossier]

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

You do make a fair point, although I disagree that para 15 makes it 2 separate years, the agreement as a whole is a fixed sum credit which as you say exceeds 4 payments in 12 months and so you could argue that it is a regulated agreement. If they don't have a licence then they could be in breach.

You could float that idea and if they then say well actually the contract is interpreted as being 2 separate agreements and therefore falls within the exemption then you could use that written confirmation as the basis of your s.75 claim in arguing that the agreement is 2 distinct contracts as opposed to 1.

Thanks for this. Just so that I am clear: the T&Cs do not make any reference to the CCA 1974. What is the implication of that?

[R0b]

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

Well the effect is that the agreement is non enforceable while the non-compliance continues. Of course this does not help your case but you could possibly argue that the contract entered into was a misrepresentation as it would be a regulated agreement and not an unregulated one though it might be difficult because you still wanted to enrol on the programme. However, if it was to be deemed a regulated agreement then you would have the right to complain to the ombudsman who may look into the performance of the service/conduct of the institution and therefore make a decision that may not necessarily be made if it went to court.

I don't think there is anything within the CCA that allows you to positively take action against the institution for a misrepresentation or poor performance of the programme.

I think it would have to hinge on the institution stating that it was exempt because there were 2 separate agreements or thats how they interpret it as being. That then leads you onto an argument to claim through s.75. Its a long shot but the only shot I can see I think.

It may perhaps be worthwhile researching some EU law and whether other countries may have incurred similar situations where the EU have made decisions that could help your case.

[dossier]

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

Well the effect is that the agreement is non enforceable while the non-compliance continues. Of course this does not help your case but you could possibly argue that the contract entered into was a misrepresentation as it would be a regulated agreement and not an unregulated one though it might be difficult because you still wanted to enrol on the programme. However, if it was to be deemed a regulated agreement then you would have the right to complain to the ombudsman who may look into the performance of the service/conduct of the institution and therefore make a decision that may not necessarily be made if it went to court.

I don't think there is anything within the CCA that allows you to positively take action against the institution for a misrepresentation or poor performance of the programme.

I think it would have to hinge on the institution stating that it was exempt because there were 2 separate agreements or thats how they interpret it as being. That then leads you onto an argument to claim through s.75. Its a long shot but the only shot I can see I think.

It may perhaps be worthwhile researching some EU law and whether other countries may have incurred similar situations where the EU have made decisions that could help your case.

R0b. Thank you for this post. You might find this publication by Farrer & Co to be of interest: http://www.farrer.co.uk/Global/Brief...institutes.pdf

"An important exemption under the CCA in this context is one which allows a fixed sum (i.e. the fees) to be paid within a period of 12 months and in no more than four instalments. This potentially allows an HEI to agree with a student that they may pay their course fees in a maximum of four instalments over a period of 12 months, with the final payment being made no later than the day before the anniversary of the date that the agreement for credit was entered into with the student. In addition, for the exemption to apply, no interest or other charges may be added to the repayments under the agreement between the HEI and the student. An agreement that does not meet these conditions will be outside the scope of the exemption and, unless the HEI has a Category A credit licence (or can benefit from another exemption), the HEI will be unable to help students with paying their course fees in this manner without facing the legal risk of non-compliance with the CCA. For example, agreements which are not compliant with the CCA legislation may be unenforceable so an HEI risks not being able to recover money it is owed. However, more importantly, under the CCA, providing credit without the appropriate licence is a criminal offence. "

[dossier]

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

Might I ask why 75A hasn't been considered?! I do agree though, it is unlikely you would be able to claim under s75 arguing they are separate.

Why do you think you have been mis-represented? and if you feel there has been a poor standard of service that would fall under negligence.

Hi R0b: the FOS have written in a publication the following about 75A:

"Section 75A came into force on 1 February 2011 - through the implementation of the Consumer Credit Directive - but applies to regulated agreements made on or after 11 June 2010 . It supplements section 75, rather than extending it. This note is not intended to provide a full explanation of the law. But put very simply, section 75A will normally have effect where all of these things apply:

• the goods or services were purchased under a credit agreement specifically arranged for the purchase of these goods or services. Credit card payments will not normally be covered by section 75A, because the credit agreement under which a credit card is provided does not relate to the supply of specific goods or services - the card can be offered in payment for anything the consumer chooses;
• the credit agreement is within the scope of the Consumer Credit Directive, but outside the scope of section 75;
• the amount of the credit agreement is not more than £60,260; and
• there has been a breach of contract by the supplier, involving the goods or services not being provided at all, only being supplied in part, or not being supplied as specified in the contract.

Before making a claim against the credit provider under section 75A, the borrower must first take reasonable steps to get the provider of goods or services to settle the claim.
"

[dossier]

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

What payment option did you choose?

Full amount in advance?

Installment options? (& if so, frequency, number & amount of payments)

Etc.

Thanks for this. When making a claim under Section 75, how does the claim for consequential loss work? I am yet to incur the tuition fees of a 2-year academic programme from a different provider (i.e. from a like-for-like replacement)? Can I include a consequential loss claim into the Section 75 claim for the replacement cost of a new 2-year academic programme elsewhere (i.e. from a different provider) based on the quoted tuition fees of a different Academic Institution?

[charitynjw]

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

Thanks for this
You are welcome.
Can I include a consequential loss claim into the Section 75 claim for the replacement cost of a new 2-year academic programme elsewhere (i.e. from a different provider) based on the quoted tuition fees of a different Academic Institution?
See following link from Barclays to the HoL European Committee.
http://www.publications.parliament.u...95/0051010.htm

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[R0b]

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

Hi dossier, yes suggesting 75A was my mistake, I was getting ahead of myself

[dossier]

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

Hi dossier, yes suggesting 75A was my mistake, I was getting ahead of myself

No worries. Thanks for the brainstorming though - it's worth checking out all angles.

On a different note: the t&cs make no reference to the price or quantity of the fees - where should this be legally documented?

[dossier]

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

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Thank you charitynjw.

Overall: is this the right place for me to post my progress and questions as I proceed with the (ups and downs!) of a Section 75 Consumer Credit Act claim with American Express?

Thanks