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@Rui re the pet that was happy to take anything and just let its tummy be tickled, trust me there were other words that I could have used. And I chose a cuddly analogy instead.
I do agree with you though that @Scottpat78 may have the last laugh.
@JDB: the crux of the issue is whether you agree the FOS should allow a card co to close accounts without evidence of wrongdoing without honouring points earned & vouchers where qualifying spend has been made.
Quoting Creation’s T&C’s is all well & good but they are superseded by the CRA 2015. Relevant considerations in this scenario are;
The ‘fairness’ test has been extended to consumer notices (e.g. promotions and renewal notices) which either relate to the rights and obligations between a trader and a consumer, or which purport to exclude or restrict a trader’s liability to a consumer. Consumer notices must be transparent. Terms in consumer notices which are unfair are not binding on the consumer.
In proceedings before it which relate to a consumer contract, a court is under a duty to consider the fairness of the contract even if the issue of fairness is not raised by either party.Is it fair to allow a card co to prevent a customer obtaining a reward that they would have qualified for but for the account being closed when customer has not been shown to have breached any of the T&C’s?
Explain to me how it’s fair or reasonable to advertise a product with an upfront fee & a significant reward then pull the rug away before you pay out the reward & pocket the fee? That’s bait & switch in most people’s eyes.
@memesweeper : is this in your mcol. @Thegasman has put it so much better than me.
It’s unbelievable isn’t it @JDB? How badly Creation is doing on basic points of procedure. Just on this page we have @harley’s complaint that has sunk without trace for three months, and Margarathea where Creation hasn’t handled a simple please-pay-it-to-my-bank-account request.
After much chasing for a response to my complaint, it turns out Creation posted their response just to my postcode; no first line address even. I’m not surprised.
Unbelievable. How is Creation this incompetent on the basics?
@Thegasman – some of what you say is correct, although I notice you didn’t cite CRA2015 71(3) although you did cite (2). On the issue of fairness, it will, in this case, likely apply differently to people depending on their anniversaries. They have voluntarily refunded the fee for Aug-Dec and arguing for the voucher if say you had an April anniversary on ‘fairness’ grounds seems quite a stretch. Also, asking for a fee refund and the voucher seems odd.
3)But subsection (2) does not apply unless the court considers that it has before it sufficient legal and factual material to enable it to consider the fairness of the term.
I think it’s clear to any reasonable person that my previous points demonstrate the terms aren’t fair if applied as Creation argue.
You’re also clutching at straws here as 3) only refers to the courts ability to consider fairness if it isn’t raised by either side.
The key element of anyone’s claim in this scenario should be fairness.
62Requirement for contract terms and notices to be fair
(1)An unfair term of a consumer contract is not binding on the consumer.
(2)An unfair consumer notice is not binding on the consumer.
(3)This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
(5)Whether a term is fair is to be determined—
(a)taking into account the nature of the subject matter of the contract, and
(b)by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
(6)A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.
(7)Whether a notice is fair is to be determined—
(a)taking into account the nature of the subject matter of the notice, and
(b)by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.
69Contract terms that may have different meanings
(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
3)But subsection (2) does not apply unless the court considers that it has before it sufficient legal and factual material to enable it to consider the fairness of the term.
I think it’s clear to any reasonable person that my previous points demonstrate the terms aren’t fair if applied as Creation argue.
You’re also clutching at straws here as 3) only refers to the courts ability to consider fairness if it isn’t raised by either side.
The key element of anyone’s claim in this scenario should be fairness.
My point was that the Court needs a legal basis to support the claim. What aspect of the terms re anniversary reward night is unclear, untested or unfair? What authorities/precedents can you cite in favour of your position? The court will need more.
Inter alia, you must have an active account at the anniversary. A firm is entitled to close your account without cause. There is no provision for pro-rata refund of the annual fee. There shouldn’t be any argument over those three issues.
Unfortunately there is a world of difference between what feels unfair and the threshold for unfairness in law. Equally, different judges will have varying views, and they will have little time which combined with proportionality (of what is a very small claim) doesn’t help. They are required to consider ALL the circumstances (as you say above) and that analysis may not suit everyone.
I accept that the withholding of rewards during the notice period may be greyer, but as the treatment now appears standard across the industry, I am concerned I am missing something; they aren’t all doing this without advice.
- This reply was modified 55 years, 4 months ago by .
Some/all of the below may be relevant.
Consumer contract terms which may be regarded as unfair
PART 1
List of terms;3) A term which has the object or effect of making an agreement binding on the consumer in a case where the provision of services by the trader is subject to a condition whose realisation depends on the trader’s will alone.
4) A term which has the object or effect of permitting the trader to retain sums paid by the consumer where the consumer decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader where the trader is the party cancelling the contract.
7) A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.
11) A term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.
17) A term which has the object or effect of limiting the trader’s obligation to respect commitments undertaken by the trader’s agents or making the trader’s commitments subject to compliance with a particular formality.
“Inter alia, you must have an active account at the anniversary. A firm is entitled to close your account without cause. There is no provision for pro-rata refund of the annual fee. There shouldn’t be any argument over those three issues.“
This is the crux of the matter, you believe “fair” is whatever the T&C’s allow. The CRA makes clear that is not the case.
Where a customer has paid a fee for a product with advertised benefits, subsequently fulfils the spending criteria to earn those benefits & the only reason they aren’t awarded is due to the card co exercising their right to close an account (without evidence of breach of T&C’s/illegal activity) then any reasonable person (I specifically do not include FOS case handlers in this having viewed the quality of their written judgments) would conclude the card co have acted unfairly by using T&C’s to dodge paying out. Fair is providing benefits that have been earned but for termination & then both sides walk away satisfied.
Fortunately the CRA gives clear legal remedy if the FOS fails to.
- This reply was modified 55 years, 4 months ago by .
@Thegasman – we can all copy and paste but you will need to be more precise and it isn’t clear which, if any, of the points from the Schedule apply and aren’t either excluded by the general provisions of Part 2 or are expressly permitted under other Acts, eg CCA1974. Also, as before any notion of fairness recedes the further the anniversary is from December.
I don’t see how anyone could argue 7) does not apply to fee refunds in these cases.
We’ve moved a long way beyond arguments about Creation’s right to close accounts without reason – that’s clearly permitted in CCA & CRA.
There is absolutely no provision in either of those pieces of legislation to justify the withholding of points or free night certificates earned prior to closure.
I’m not sure why you feel anniversary date is relevant to the fairness provisions?
If I spend my £10k on Day 1 or Day 364 then I have qualified for the free night certificate & IHG points on that spending. The only thing that has prevented me being granted it is Creation’s decision to exercise their right to close my account.
This is precisely the sort of scenario the CRA was created to stop. Companies have to fulfil the spirit of the deal they advertised not hide behind shades of grey in the T&C’s.
“What’s to stop them giving every customer notice ending 1 day before the free night is due?” If they did that there might be an issue, but they didn’t.
No, it was 27 days in my case. Where would you have them draw the line?
- This reply was modified 55 years, 4 months ago by .
I don’t see how anyone could argue 7) does not apply to fee refunds in these cases.
We’ve moved a long way beyond arguments about Creation’s right to close accounts without reason – that’s clearly permitted in CCA & CRA.
There is absolutely no provision in either of those pieces of legislation to justify the withholding of points or free night certificates earned prior to closure.
I’m not sure why you feel anniversary date is relevant to the fairness provisions?
If I spend my £10k on Day 1 or Day 364 then I have qualified for the free night certificate & IHG points on that spending. The only thing that has prevented me being granted it is Creation’s decision to exercise their right to close my account.
This is precisely the sort of scenario the CRA was created to stop. Companies have to fulfil the spirit of the deal they advertised not hide behind shades of grey in the T&C’s.
I understand exactly what you are saying, but it is made very clear in the terms that it isn’t just spending £10k that earns you the voucher (unlike say BAPP 241); you have absolutely no right to it at that point as it is just the first hurdle. You must ALSO have an active account at the anniversary date (and the FOS, perhaps oddly, has previously decided that you need to pay the next year’s fee as well but that isn’t necessarily a precedent). However unfair it seems, it has previously been decided on many occasions that for these type of anniversary benefits, it matters not whether the customer or the firm closed the account; you either reach your anniversary or you don’t. There is no promise of a voucher on any other basis or at any other time and the term is quite clear, simple and unequivocal. It is difficult to argue that it isn’t transparent etc. so if you have an anniversary after 3 Dec, any alleged unfairness gradually gets fainter if it was there in the first place.
The points and voucher in the notice period is I think slightly different and may have some prospects; if anyone is going to MCOL, that will no doubt elicit a proper defence (or agreement) which will be interesting to track.
“What’s to stop them giving every customer notice ending 1 day before the free night is due?” If they did that there might be an issue, but they didn’t.
No, it was 27 days in my case. Where would you have them draw the line?
They don’t need to draw a line as it is quite clear in this instance that accounts were not being closed at a time designed deliberately to deprive them of a benefit which is what was being suggested. In terms of the anniversaries, it is clear the closures were essentially random, so it was unfortunately worse for some than others.
They don’t need to draw a line as it is quite clear in this instance that accounts were not being closed at a time designed deliberately to deprive them of a benefit which is what was being suggested. In terms of the anniversaries, it is clear the closures were essentially random, so it was unfortunately worse for some than others.
They’ve not told anyone this though. Officially all I have is a letter serving 2 months notice. Creation have no idea I read hfp, so on a user by user basis this act is entirely unilateral.
But presumably in court they would defend themselves against such an accusation.
“However unfair it seems, it has previously been decided on many occasions that for these type of anniversary benefits, it matters not whether the customer or the firm closed the account; you either reach your anniversary or you don’t. There is no promise of a voucher on any other basis or at any other time and the term is quite clear, simple and unequivocal.”
This is the last time I’ll make this point!
The FOS cases cited don’t consider fairness only interpretation of T&C’s.
The CRA trumps T&C’s.
The CRA requires fairness & transparency.
Création have closed a significant number of accounts which would otherwise have been due a voucher.
This has resulted in a significant financial benefit to Creation.
Creation’s advertising/promotional material did not make clear that this was a possibility.
Customers have received no compensation in lieu of benefits that were withheld.As you concede, this isn’t fair.
If it’s not fair, it’s not legal.By all means go through the motions with FOS but in the event they maintain their track record of ignoring the wider legal picture then I’d have no qualms about taking this to MCOL & using CRA as basis of my case.
Création know this, they just want to make it as long & drawn out as they can in hope people give up.
@Thegasman – perhaps I should have been clearer, but the courts have also decided in favour of firms for the paragraph: “However unfair it seems, it has previously been decided on many occasions that for these type of anniversary benefits, it matters not whether the customer or the firm closed the account; you either reach your anniversary or you don’t. There is no promise of a voucher on any other basis or at any other time and the term is quite clear, simple and unequivocal.”
When I said “fair” in that context I meant in a lay sense, not a legal sense. I don’t think it begins to meet that threshold. And, of course, nobody promised or even hinted that you would reach your anniversary.
- This reply was modified 55 years, 4 months ago by .
JDB, what’s your view on Creation withholding points earned during the 60 day notice period? (While also issuing statements during this period stating that points have been earned, but not transferred).
@britbronco read through earlier pages. In summary @JDB thinks it’s ok for Creation not to award points during this notice period because the account will be closing, despite there being nothing in T&C’s to permit this (unless your account is delinquent) or any correspondence to say this. He is in the minority of… one.
Same goes for withholding any free nights applicable with an anniversary during or after the notice period!
@JDB makes some excellent points that the complaint and any subsequent activity (I.e. FOS) needs to be well structured!Thanks Ewan. Most of the jdb posts I’ve seen are arguing against the award of the voucher on a technicality (that the account must be open), even though most people would view closure by creation as an unfair action to avoid award of the voucher.
However I’ve not seen him mention the withholding of points, and I can’t really see any justification for doing so, technicality or not! Creation are simply ripping us off and breaching the card terms by not giving 60 days notice for loss of benefits. And they can’t even get their communication sorted, with the statements still showing points as earned.The useful element of what @JDB has been pointing out is that there is history of card issuers (not just Creation) unilaterally issuing notice to close accounts, not allowing people to spend (and therefore earn) during the notice period, and witholding the awards usually issued at renewal.
It’s not right, but those issues need to be addressed head on as to why they are not right/fair etc in any FOS complaint.
Despite it being annoying, it’s actually very useful to understand the approach Creation will be taking to wriggle out, so any claims can try to hit them head on. By not replying to complaints Creation aren’t revealing their defense, very dirty tactics.
JDB, what’s your view on Creation withholding points earned during the 60 day notice period? (While also issuing statements during this period stating that points have been earned, but not transferred).
I’m sorry, but I honestly am not confident of the answer on this! My initial view in October was not to risk it, because they might and at a stretch could argue, within the terms, their entitlement to do so, but I thought the case was always weaker than the voucher. More recently, with further research (re Tesco and others) and also the @AlexV case reported last week re Amex, it seems to be standard, so they are all relying on something, although I don’t know what it is. The gist (for all these firms) is obviously that they think, once they give notice, everything changes. I have tried to research this discrete point, but can’t find anything.
It’s interesting that for instance HSBC has found a middle way whereby they allow transactions like HMRC via Curve, but don’t give points but also don’t charge a cash type fee. It’s the most enormous stretch in the terms, but that’s what they do. Whether it would stand up to scrutiny as with Creation, I don’t know.
The useful element of what @JDB has been pointing out is that there is history of card issuers (not just Creation) unilaterally issuing notice to close accounts, not allowing people to spend (and therefore earn) during the notice period, and witholding the awards usually issued at renewal.
It’s not right, but those issues need to be addressed head on as to why they are not right/fair etc in any FOS complaint.
Despite it being annoying, it’s actually very useful to understand the approach Creation will be taking to wriggle out, so any claims can try to hit them head on. By not replying to complaints Creation aren’t revealing their defense, very dirty tactics.
It’s the main merit of MCOL that you force the other party to provide a defence within a strict time limit ahead of any hearing whereas the FOS process is oddly secretive. However, you have to come up with a good reason not to have tried the FOS first to comply with the CPR.
- This reply was modified 55 years, 4 months ago by .
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