Are you claiming back charges the bank have taken from your benefits ?

[Amethyst]

If so you may be able to bypass the Stays being imposed on claims by the banks, the FOS and the courts, pending the OFT test case. Claim for hardship and get them to stop taking your benefits.

Read FIRST RIGHT OF APPROPRIATION if the bank is threatening to swallow up all your benefits in charges.

WILL WRITE A NEW GUIDE SHORTLY

for now, for help - please get in touch with Tools or Amethyst.

[RedCardPete]

Re: Are you claiming back charges the bank have taken from your benefits ?

I am sure you are already aware of this so apologies if this is repetitious but having tried to run these arguments against Nat West, they waded in with their lawyers. We had to issue proceedings and the Defence that came in said, amongst other things, that the arguments under s.187 of the Social Security Admin Act 1992 and the Tax Credits Act 2002 have already been considered in the Cardiff County Court in the case of Rayment v Barclays Bank on 30.10.07. We are told that the judge held that a claim that unauthorised overdraft charges were void by virute of the above acts was "patently incorrect" and threw out the case.

It would be interesting to know if anyone has actually been successful either in court or out of court with these arguments.

I have aksed for a copy of the judgment and will of course up date the site if and when we get it.

[Vortex]

Re: Are you claiming back charges the bank have taken from your benefits ?

Redcardpete, can you clarify at what level the case you mention was made in? If its just County Court level then there is no precedent set and therefore it is irrelevant but was it appealed?

[littlesally]

Re: Are you claiming back charges the bank have taken from your benefits ?

I have helped claim them back a number of times, but never at court level
Here's one http://www.legalbeagles.info/forums/...light=homeless
That was the easiest.
There's been a couple of others that needed letters sent.
Something along these lines ..........
http://www.legalbeagles.info/forums/...ead.php?t=7257

As far as I am aware all have got their charges back, although some put up a bit of a fight!
This has been since all the OFT stuff
Sally xx

[Amethyst]

Re: Are you claiming back charges the bank have taken from your benefits ?

From Corby Council website;


Can a bank take Housing Benefit to pay an overdraft?
No they cannot take ANY benefits.
Banks are not allowed to use Housing Benefit or any other income related benefits to
repay an overdraft as the law provides that a customer needs a minimum amount of
money to live on. Arguably, the money is not actually the claimant’s, they are just the
agent to pass the money along to their landlord. If the Bank do use this money to offset an
overdraft the customer should be advised to seek legal advice or contact a CAB for further
help and claim back any charges.
This is called First Right of Appropriation
Benefit claimants receiving direct payment of Housing Benefit into their bank accounts
may be able to protect those payments from being used by the bank to meet authorised or
unauthorised overdrafts built up by the customer and guarantee that they are used only to
pay the rent to their landlord
Even if an account is overdrawn, a customer can choose how any further money paid into
the account is used (for example to pay rent) using this ‘first right of appropriation’. It is
necessary however for the customer to contact their bank with new instructions, usually,
each time they make a deposit.
Following further queries with Citizen’s Advice on the final sentence 'new instruction each
time you made a deposit' they provided more detailed guidance:
In the written instructions the customer gives the bank, the customer should ensure that
s/he makes it clear if s/he wishes any regular payments or future deposits to the account
to be used to pay for specific items. If the client does not make this clear, s/he will have to
give the bank new instructions each time a deposit is made.
This "Right of Appropriation" allows a customer to assign any funds entering their account
to specific events and needs, not just benefits.
This is something all the banks should be aware of, but are loathe to publicise. Some
banks however do not understand this process since it is not very often used.
Further information is available at the following website
http://www.adviceguide.org.uk/c_bank..._societies.pdf
Whilst a customer can try this, there are 2 possible problems;
1) Ideally, they should give the bank 7 days notice before the first Housing Benefit
payment is due to be credited to their account. Otherwise the bank could disregard the
request.
2) They may just disregard it anyway and swallow up the money. The customer would then
have to complain and involve the banking Ombudsman etc and, eventually, get it resolved.
This could take a few weeks and would not solve the immediate problem.
Page 2
The Social Security Administration Act 1992 provides certain benefits such as Housing
Benefit to be ‘inalienable’.
The legislation that can be quoted in any approach to or complaint to a bank should
include section 187- “Subject to the provisions of this Act, every assignment of, or charge
on-
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
(b) any income-related benefit; or
(c) child benefit,
and every agreement to assign or charge such benefit shall be void; and, on the
bankruptcy of the beneficiary, such benefit shall not pass to any trustee or other person
acting on behalf of his creditors”
Information on the following website can help a customer claim back any resulting bank
charges

[RedCardPete]

Re: Are you claiming back charges the bank have taken from your benefits ?

Sorry I apologise for the delay in responding here.

Vortex: I'm not sure I agree with you that county court judgments don't set precedents. They certainly do for any other county courts. All judgments are binding on courts of teh same level or lower levels.

As far as I know Rayment was a first instance county court decision that wasn't appealed.

Just to update you, the claim has now been transferred to the Mansfield County Court and the judge has decided to strike out the case as disclosing no reasonable grounds for bringing a claim.

Any successful claims in court on the SSAA basis would therefore be very useful when we try to get the claim reinstated.

Thanks

[RedCardPete]

Re: Are you claiming back charges the bank have taken from your benefits ?

Just wanted to update the situation on this even though the new hardship definitions under the FSA waiver may make it all redundant.
Firstly there was a judgment in Rayment v Barclays Bank plc from the Cardiff County Court on 30 October 2007 by HH Judge Hickinbottom. As a judgment is a public document, there is no problem repeating the relevant parts here: at paragraphs 56 and 57, he said
"Mrs Rayment.......submitted that in applying unauthorised overdraft charges to her account, the bank was in breach of section 187 of the Social Security Act 1992.......That submission is flawed. It appears to assume that "charge" in section 187 is the same as "charges" made by a bank. With respect, that is patently incorrect. Mrs Rayment has not assigned or charged any interest in her benefits to the bank......Section 187 has no application in this case."
I was before a District Judge in Mansfield County Court a week ago who clearly agreed with that view and struck out the part of the claim based on section 187. As a result I also got hammered on costs but that is another matter.:cry:
However conversely I have now come across the Scottish case of North Lanarkshire Council v Crossan and Airdrie Savings Bank. This seems to suggest that a Scottish judge concluded taking bank charges out of someone's bank account where their only income was state benefits did breach section 187 and was therefore illegal. There had been another Scottish authority from the early 20th century which had assisted but the Crossan judgment came out on 2 May 2008 so is completley up to date. I believe the full judgment is availiable on the website of the magnificent Govan Law Centre. It may help anyone who is still arguing on this basis but being Scottish law is only of persuasive value in UK courts.
Just one other point which I suspect should go into another thread but I am not sure which one: at the hearing in Mansfield mentioned above, I had included a claim for interest at the rate the bank applied to unauthorised overdrafts. The district judge actually struck that part of the claim out and said I only had a right to claim interest at 8%. I still believe that decision is flawed as a claim for interest can be made at any rate; it is then in the courts discretion to award interest at whatever rate and for whatever period it thinks fit (section 69 County Courts Act 1984, as amended). However everyone needs to be careful because as mentioned above, I got hammered on costs as a result of all this. The strange thing is that most of the credit card companies are paying interest at the higher rate (i.e. the rate they charge for cash advances) so the argument cannot be completely flawed.

I would welcome anyone's experiences on any of the above points.

(Sorry this is so long!!):tung:

[Amethyst]

Re: Are you claiming back charges the bank have taken from your benefits ?

Thanks pete - interesting re the Scottish case. We took out benefits letters which included the ssa and tca down a while back....they can work as persuasive in letters to the banks but no they are not strictly valid arguments in court. there is still first right of appropriation and as you say the hardship guidlines so all is not lost.

I dont agree with claiming CI on a bank account but I know there are advocates of it. I'm sorry you ended up stung for costs.

[Tools]

Re: Are you claiming back charges the bank have taken from your benefits ?

Pete, some very interesting points you have made there, thank you.

Obviously your reasons for claiming contractual interest are also known to me and I do not disapprove if that is how some people wish to manage their claim. I do however have to point out that risking the whole of someones claim in able to recover your costs/fee is something I do not agree with. Your clients must be made fully aware of the risks and I can only recommend claiming the stat 8% interest. My opinions regarding claiming CI on bank charges mirrors Amethysts views. Was the whole claim struck out or was it just the interest part of the claim?

[Budgie]

Re: Are you claiming back charges the bank have taken from your benefits ?

Just one other point which I suspect should go into another thread but I am not sure which one: at the hearing in Mansfield mentioned above, I had included a claim for interest at the rate the bank applied to unauthorised overdrafts. The district judge actually struck that part of the claim out and said I only had a right to claim interest at 8%. I still believe that decision is flawed as a claim for interest can be made at any rate; it is then in the courts discretion to award interest at whatever rate and for whatever period it thinks fit (section 69 County Courts Act 1984, as amended). However everyone needs to be careful because as mentioned above, I got hammered on costs as a result of all this. The strange thing is that most of the credit card companies are paying interest at the higher rate (i.e. the rate they charge for cash advances) so the argument cannot be completely flawed.

Hi Pete,

I notice that the compound interest bashers are out again ( sorry Ame and Tools I couldn't resist ).

Is it possible to let us have a bit more information about the circumstances as to why the Judge threw out the interest portion of your claim?
On what grounds were you arguing your entitlement to compound interest ( I presume that this is what you were claiming ).

If you were arguing on the basis of mutuality and reciprocity, ie you were seeking an implied term, then it would not be surprising that the Judge dismissed that part of your claim.

BTW, no credit card Companies that I know of are routinely paying out interest at the higher rate ( the cash advance rate ).

Budgie

[Angel3745]

Re: Are you claiming back charges the bank have taken from your benefits ?

Hiya
If anyone has any doubts regarding the law I have a copy of the blue papers if anyone wants to read through them. They are a bit indepth but will cover the social security act. I too am claiming charges taken from my tax credits and two and a half years ago I took them to court for charges incurred for going overdrawn and won.

also this may be useful:-

As most people will now be aware, in July 2007 the Office of Fair Trading agreed with seven major high street banks to a test case to determine the legality of Bank Charges. This effectively has put all claims on hold until the case is decided. However, there is an Act of Parliament which over-rides this if you are in receipt of any of the following benefits.
Income Support
Tax Credits
Child Benefit
Job seekers allowance
Incapacity benefit
Disability living allowance
Attendance Allowance
CSA payments
Other DWP payments.
These benefits are granted to stop hardship and are designed to meet basic day to day needs, and are protected under the Social Security Administration Act 1992 sub section 187. This stipulates that the bank can not apply any charges to money received as benefit, and any such charges are unlawful and therefore disallowed.
If you live north of the border you also have the weight of a successful test case won against a bank (Woods v Royal Bank of Scotland).
So if you have been charged by your bank now is the time to fight back!

Hope this helps and keep fighting!

[Amethyst]

Re: Are you claiming back charges the bank have taken from your benefits ?

Thanks Angel If you have the blue papers on your puter an email copy would be fab - amethyst@legalbeagles.info.

[littlesally]

Re: Are you claiming back charges the bank have taken from your benefits ?

Nicked this from otr, which Stephen has assured me is correct
Sally xx


The two Acts of Parliament that govern how benefits are paid are the Social Security Administration Act 1992 and the Tax Credit's Act 2002. Both of these have clauses which apparently make it unlawful for banks to impose bank charges on benefits:

Social Security Administration Act 1992 Section 187: Quote:
187.—(1) Subject to the provision of this Act, every assignment of or charge on–
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
[3(aa) a jobseeker’s allowance;]
(b) any income-related benefit; or
(c) child benefit,
and every agreement to assign or charge such benefit shall be void;
Tax Credits Act 2002 Section 45: Quote:
45. Inalienability
(1) Every assignment of or charge on a tax credit, and every agreement to assign or charge a tax credit, is void;
HOWEVER by 'charges' they DO NOT MEAN BANK CHARGES. What is meant is things like attachment of earnings, which is a court order allowing a creditor to take money from income at source (like income tax).

Although there is some ambiguity, if you took a case to reclaim bank charges to court based on s187 of the Social Security Administration Act 1992 or s45 of the Tax Credits Act 2002 the court would almost certainly find against you.

No one is saying that the banks have the right to take money from benefits, only that you can't use the Social Security Administration Act 1992 or the Tax Credits Act 2002 to stop them. Money taken from benefits is unlawful - but unlawful by virtue of the Unfair Terms in Consumer Contract Regulations 1999 (although this is still the subject of litigation in the High Court), not under the Social Security Administration Act 1992 or Tax Credits Act 2002 (unfortunately).

[Amethyst]

Re: Are you claiming back charges the bank have taken from your benefits ?

Yep it is

[Angel3745]

Re: Are you claiming back charges the bank have taken from your benefits ?

Thanks LittleSally, didnt know that. This is how I had read and interpreted the Act:
i.e Subject to the provision of this Act, every assignment of or charge on Tax Credits... I understood it to mean Subject to the provision of this Act, all Assignment of or charge on... Now me being me understood that the word every and all were the same. Its very confusing and unclear. If it lists the benefits covered why doesnt it say `does not include bank charges`to save confusion. Oh well back to the drawing board.
I also need a moan.
I am claiming due to unreasonable demands for money with no letter informing me of the amount of charges going out of my account/the date and no realistic time scale allowed to put funds in and avoid more charges. Its unreasonable, unfair and bad practise and must breach their code of conduct. My Tax Creds end up going into the bank to cover the amount overdrawn due to charges. If I am say £10 in credit in my account and the charge is £36 they will still take the charge out knowing it will make me overdrawn and then have the cheek to charge me again. Another £28 quid gets taken as well at month end. If Banks can charge you excessively for going overdrawn how can it not be hypocrytical of them to take their charges out of an account that they know has insufficient funds in. The charges go out of my account in less than 24 hrs which means many times i wont know ive gone overdrawn and excessively charged (if a couple of days has passed and it could be as little as £4) until I go to the ATM for some money and nearly have a heart attack, This has got to be unreasonable practise and a gross misconduct. Maybe the customer can never be right.
Many Thanks for letting me offload. Feel loads better
------------------------------- merged -------------------------------
I am determined to beat these swines though for robbing me blind and making me financially struggle to feed my kids and pay the bills. Also am I right to ask the bank if £28 is the admin fee what is the £36 for and could I ask for a breakdown of these charges and how they come to this figure. Now you can also reclaim energy charges. They are overcharging as well! it beggers belief. I work hard and all I want is an honest and fair service.
Oh well onwards and upwards!!