Section 75 Claims - One accepted, one rejected

[COMROG]

Hi
I paid Booking.com for accommodation using credit cards from 2 different banks.
The accommodation was poor so I issued S 75 claims to both.
One bank accepted the claim and paid out in full, 45 days have passed, and no problems.
The other bank rejected the S 75 claim but offered just over 50%;
'due to the impact this has had on you and the fact Section 75 regulations have prevented us from being able to assist'.
No terms & conditions were attached to the offer and I have not accepted or rejected the offer.
I decided to contact the Financial Ombudsman for an opinion.
I could not understand why one bank accepted when the other rejected identical S 75 claims.
The FO rejected the claim.

My dilemma is this:

The FO rejected the S 75 claim but did not consider/mention the compensation offer.
Can I now accept the 50% offer from the bank?
Can the bank now say that because I contacted the FO, they are under no obligation to uphold the offer?
Any views or advice would be appreciated.
TIA

[Pezza54]

Hi
Were the 2 payments for separate bookings?
You were fortunate your s75 claim was successful. S75 is for tri-party arrangements. Paying booking.com introduced a 4th party
Both credit card companies could have refused your s75 claims
What reason did the FOS give for rejecting your complaint?

[Pezza54]

Some banks and credit card companies operate a chargeback scheme, which is voluntary and not covered under legislation.
The bank that refunded your money may belong to this scheme and reversed the transaction, taking back the money from Booking.com's bank
The bank that refused your claim may not belong to this scheme

[COMROG]

The 2 payments were separate, paid at different times for the same accommodation.
Both transaction were tri-party.

The explanation provided by the FO stated:

'Section 75 of the Consumer Credit Act 1974 states that in certain circumstances, the borrower under a credit agreement has an equal right to claim against the credit provider if there’s either a breach of contract or misrepresentation by the supplier of the goods or services. In order for Section 75 to apply, there are certain criteria that need to be satisfied. One of which is establishing a “debtor-creditor-supplier” (DCS) agreement.

What this means in practice is that the person liable to repay the credit agreement needs to also be the contracting party with the supplier. And the supplier needs to have been paid, at least in part, by the creditor.

A “debtor” is the person buying the goods or services on credit, who has an obligation to make repayments to the creditor. A “creditor” pays the supplier for the goods or services on behalf of the debtor. A “supplier” is the party who provides the goods or services to the consumer and receives payment from the creditor.

The relationship required is that the person who paid for the goods (in this case, you), should have a contractual relationship with the company who supplied the goods or services (the accommodation), as well as with the credit provider.

When you make a Section 75 claim you’re required to show evidence that there’s been a breach of contract between you and the supplier or a misrepresentation made. You can’t claim for a breach of contract if the contract isn’t in your name, and unfortunately, this doesn’t change even when you pay for it. This situation is sometimes referred to as a “break in the chain” or an invalid DCS agreement. In this case, you have paid Booking.com, who have then paid the hotel.'

Having researched S 75, I knew this would probably be the outcome.
However, the main reason for contacting the FO was to see if there had been any changes concerning how they were now interpreting the DCS agreement given the following extract from my communication with the first bank (all correspondence with both banks was forwarded to the FO).

'Your claim has been upheld

I am pleased to confirm that we have completed our investigation and we would like to offer you £xxxx (full reimbursement) in respect of your claim. This refund represents the full and final settlement of your claim under Section 75 of the Consumer Credit Act 1974. This is the transaction amount £xxxx plus the foreign exchange fee of £xxxx.'

So, the first bank settled under S75, not chargeback.

Additionally, I forwarded the first bank's offer of settlement to the other bank thinking this might be an incentive to settle the claim in full.
No such luck.

My main reason for posting was this:

Am I still entitled to reply and accept the original offer made by the original second bank, i.e. an offer of compensation of 50% of my original claim?
I'm now concerned that the bank may decline or withdraw the offer given my approach to the FO and the FO's subsequent dismissal of the S. 75 claim.
The correspondence from the bank's complaints manager did not refer to any terms or conditions in respect of the offer.
The FO was not requested to consider the offer and subsequently did not refer to the 50% offer or comment on whether any compensation should or should not be paid.
The FO remit was solely confined to a decision as to whether the S. 75 claim was applicable.
TIA

[Pezza54]

There were 4 parties. You, booking.com, the bank and the hotel. The FOS is right, there was a break in the chain (of 3 parties) That's why the FOS did not uphold your complaint.
The second bank is likely to withdraw its offer, now it is sure of the legal position under CCA 74
This bank will probably be paying the FOS to investigate your complaint.

[COMROG]

But the offer from the second bank was unconditional with no time limit for acceptance and made with no terms or conditions attached, as follows:

'The total cost seen on this card was £xxx.xx, I would be happy to reimburse you £xxx.xx which is over half of the amount paid. Section 75 would not be able to review this further, and this is an offer due to the impact this has had on you and the fact Section 75 regulations have prevented us from being able to assist.'

The offer was made 'due to impact', i.e. the stress suffered, inconvenience caused, etc.

Surely, given the confusing and opposing stances coming from the 2 banks, I would be entitled to seek an opinion without jeopardising the original offer?

[Pezza54]

You received a gratuitous (goodwill) offer. It is not legally binding. You can go back to the bank and ask if their offer still stands. If they say "no" there is not much you can do

[COMROG]

Fortunately, the second bank honoured the discretionary payment; so all's well that ends well.