Tweet
Does anyone know whether a bank's terms of business must comply with the Consumer Rights Act 2015?
I'm looking for whether a bank can use a policy to exclude itself from liability when it acts of its own volition and causes a customer a loss.
Chronology.
I sold a computer monitor on eBay for £55 by private sale.
I showed the buyer it fully working and bought it.
Six weeks later, we went to Las Vegas and San Francisco and on our second day; I was called back to a family emergency.
My economy flight was non-changeable and non-refundable, so I bought another one-way ticket at the airport back to London for £708.
When I paid for the ticket, my HSBC card responded: "Do not honour".
I tried again a few more times, and they refused my card each time. I knew I had over £6500 balance.
While standing at the booking desk, I phoned the bank, and they put me into a call centre queue with piped music for about 25 minutes.
Then a voice came over the phone telling me their call centre had closed and reopened at 8 am the next morning. London is an 8 hours' difference.
I returned to our hotel, and at midnight my time (8 am UK time), I phoned the bank they said there has been a disputed transaction of £55 on my account for an item I sold on Facebook, and they put an inhibition on my account which stoops me making transactions or logging into it.
HSBC said they froze my account (an inhibition) because someone made an APP fraud complaint about the £55 transaction.
I identified the disputed transaction and the bank call centre agent found the dispute in my favour by the bank over the telephone and released the inhibition and returned the £55.
An inhibition is freezing access to my money held by the bank. So an "inhibition" banking terminology for freezing a bank account.
The bank released the freeze on my money and I returned to departures and booked a ticket to London.
This time the flight was nearly full, and the fare was an eye-watering £2309.
This is a difference of £1601 plus taxi expenses.
I made a formal complaint to the bank that it froze my entire balance when only £55 of that balance was in dispute.
The bank responded by giving a 31-page document called Personal Banking Terms and Conditions and Charges.
At clause 22 of the document, it states:
When we aren't responsible for things that go wrong.
The document continues by saying:
If something goes wrong, please let us know straight away. We’ll try to help if we can. We’ll do all we can to carry out our side of this agreement. But there may be times that we can’t. We’re not responsible for any losses you may have if we aren’t able to carry out our responsibilities under this agreement in circumstances like the ones below
• Where we can’t carry out our responsibilities for legal or regulatory reasons.
• Where something’s happened that we couldn’t predict or that isn’t normal. And where it’s outside our (or our agents’ and/or subcontractors’) control, and we couldn’t have avoided it even where we used all of our efforts to. For example, industrial action or mechanical failure.
I assume the bank has excluded itself from liability when it acts of its own volition and causes a loss to a customer.
When I challenged this with HSBC, their response is they are not bound by the Consumer Rights Act because it does not apply to a bank. The bank is not a "trader" and the relationship between a bank and its customers is that of a principal-agent and a customer that places money on trust with the bank.
The Consumer Rights Act 2015 at section 61 et al. gives a list of contracts not covered, and a bank and customer contract is not on that list.
At section 62(2) it says an unfair contract is not binding on the consumer.
I infer this to mean their 31-page policy document does not apply because it excluded the bank from liability when it acts under its own motion causing a loss to the customer.
The bank cannot tell me what legislation excludes them from the Consumer Rights Act 2015.
I am ready to escalate the complaint, but I'd like to hear some thoughts.
My question is:
- whether the bank is liable for my losses, and
- whether the bank is exempt from the Consumer Rights Act 2015.
If the answer to b, is "Yes", then can anyone state under what statute provides that exemption?
Comment