-
Very interested to hear more detail of these cases where card providers have won arguments over fairness post CRA.
I don’t deny the T&C’s imply a need to reach the anniversary, my argument is this is an unfair term where a consumer has met all other qualifying criteria & has been prevented from reaching the anniversary by the unilateral actions of the card company.
The CRA introduces clear principles for assessing contract terms in a consumer/trader relationship. They must pass both fairness & transparency tests.
A contractual term fails the fairness test if it “causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer.” The court will also find in favour of the consumer where ambiguous.
Transparency requires terms to be written in plain & intelligible language.
Interestingly for someone so keen to refer back to the T&C’s, CMA guidance states there are a “number of factors that the CMA considers are potentially relevant to the assessment of fairness. One of these is that most consumers do not read standard written contracts thoroughly before making a purchase. It remains important that terms should be transparent, since those who do read them should be properly informed. But lack of time and ability to do so is an important source of consumer vulnerability that unfair terms legislation seeks to address.
Case law (OFT vs Foxtons) highlights the “need for traders to think carefully about how to communicate the substance of rights and obligations to the consumer. In particular, where they consider that their legitimate interests require use of terms that are likely to have a significant impact on the consumer, they cannot rely on doing nothing more than including such terms somewhere in their contractual documents.”
Création fail on transparency for not explicitly & prominently stating that they would withhold points & certificates if they exercised their rights to close accounts & fairness for the imbalance resulting from their ability to deny the provision of the most valuable benefit when a fee has been paid upfront & other qualifying criteria met. A customer does not have the right to request a refund of the fee if they fail to reach the spend threshold.
@Thegasman – you make very valid points for those whose anniversaries fell in the notice period, but I’m not sure how they help people whose anniversaries fall Dec-Sep. I don’t think there is any ambiguity or lack of transparency in this case; the terms re the voucher are notably brief and simple, not exactly the iTunes terms. Re the CMA’s comments, I don’t think they apply to financial services and the FOS has systemically determined that customers are expected to have read the T&Cs; ignorance is no defence. Re the fee, when you say the fee has been “paid upfront” I think there is quite a bit of debate about what the (non refundable) fee actually represents and in practice, and per the FOS, it is the NEXT fee that you pay when you get the voucher.
@LadyLondon
Can’t reply to you, but yes @gasman’s arguments are noted!
CRA absolutely applies to financial services industry. Slightly surprised you weren’t aware of that!
The fact FOS have been issuing judgements that ignore the key consumer rights legislation is a pretty damning inditement of them.
For anyone interested in pursuing through MCOL then this provides a detailed look at the key issues (& also quotes key cases from higher courts that set legal precedent).
@JDB Thegasman’s got it.
You yourself have said this industry practice appears unfair but is going on.
Luckily @thegasman has done a bang up job in all his posts today and especially his references to the CRA are just right to be presented now in an MCOL case, without waiting for the FOS to spend another £300,000 on consultants and then still not be able to do the job. That being ensuring fair treatment of consumers by card issuers whose views have changed and are trying to escape what they agreed to provide consumers they enticed to spend with them.
Thank you very much to @thegasman for this work.
PS I don’t really think it matters whether your card renewal is in 364 days or 1 day. The ‘anniversary’ word is just a red herring and designed to ensure not more than 1 free night per year is earned, by operationally paying out at the end of the year.
Payment timing is detached from earning time – the free night can be earned at any time.Creation should not be able to terminate without paying out a free night and any due IHG points. Even if they were earned at 09.00am on the first day of the new contract year and Creation unilaterally terminated at 5.00pm. The number of days doesn’t matter in the unfairness. The card fee was just o have the card available to use (it did not ‘pay’ for benefits : your diverting spend to it was what did). So additionally it would be fair to refund a portion of the card fee on something like a pro rata basis for loss of use and inconvenience of finding another suitable card.
CRA absolutely applies to financial services industry. Slightly surprised you weren’t aware of that!
If you read my post, I did not say the CRA (Consumer Rights Act 2015) doesn’t apply to financial services; it mostly does. What I said was that the specific CMA (Competition and Markets Authority) comments referenced by you in your post did not apply which is something different.
For what it is worth, as in a previous post, some of the CRA paras you listed don’t apply, owing to the nature of the contract and those exclusions are specified in the Act.
@LadyLondon – your position re the voucher is that you/affected parties need 1) to change the official nomenclature of the voucher 2) argue that it is earned/awarded at some point in time other than that specified in the terms 3) argue that the £10k takes primacy over the anniversary. It would be helpful to everyone if you could give everyone the precise argument/wording to persuade a judge or FOS; in reality you probably have max 1 minute/5 lines before they go with the ‘elephant in the room’…
“4. Anniversary night voucher
On the anniversary of your account opening, so long as your account remains active, you will earn one anniversary night voucher anniversary night voucher to redeem at any IHG property, provided you make annual pPurchases totalling a minimum of £10,000.” (sic)If, separately, you contend that there is anything about this term that isn’t clear or transparent or was not provided to the customer, what is it?
It feels like Groundhog Day in here :o)
I’m not sure we are discussing anything new. Ultimately, our opinions (for/against) are largely irrelevant – we’ll have to see what the FOS / courts / Creation etc decide to do.
So I’ve held off complaining to creation as I was hoping they would have started refunding people points, vouchers and money by now!
What is the best way to go about complaining? Post or via email?
Have read through the last few pages the basis of my initial complaint should be:
1) please send over 300,000+ points that were due at time of closure
2) please send over free night voucher
3) please give pro-rata refund of card feeDo I need to go into specifics as listed in the recent pages here or do I wait to be rejected like everyone else?
It feels like Groundhog Day in here :o)
I’m not sure we are discussing anything new. Ultimately, our opinions (for/against) are largely irrelevant – we’ll have to see what the FOS / courts / Creation etc decide to do.
You are right, but if anyone agrees with @LL’s points and wants to use them, they need the technical argument to support them; I haven’t yet seen that anywhere.
@memesweeper : is this in your mcol. @Thegasman has put it so much better than me.
Noted 🙂
CRA absolutely applies to financial services industry. Slightly surprised you weren’t aware of that!
The fact FOS have been issuing judgements that ignore the key consumer rights legislation is a pretty damning inditement of them.
For anyone interested in pursuing through MCOL then this provides a detailed look at the key issues (& also quotes key cases from higher courts that set legal precedent).
I didn’t didn’t say the CRA (Consumer Rights Act 2015) didn’t refer to financial services; most of it does. I referred to the specific CMA (Competition and Markets Authority) comments you referenced in your post.
@LadyLondon – your position re the voucher is that you/affected parties need 1) to change the official nomenclature of the voucher 2) argue that it is earned/awarded at some point in time other than that specified in the terms 3) argue that the £10k takes primacy over the anniversary. It would be helpful to everyone if you could give everyone the precise argument/wording to persuade a judge or FOS; in reality you probably have max 1 minute/5 lines before they go with the ‘elephant in the room’…
“4. Anniversary night voucher
On the anniversary of your account opening, so long as your account remains active, you will earn one anniversary night voucher anniversary night voucher to redeem at any IHG property, provided you make annual pPurchases totalling a minimum of £10,000.” (sic)If, separately, you contend that there is anything about this term that isn’t clear or transparent or was not provided to the customer, what is it?
@JDB the point is this is Unfair Contract Terms. CRA requiring fair contract terms and any other relevant statutes requiring fair treatment of the consumer as the weaker party in a business-to-consumer contract are statutes – and as such override any contract terms.
I am glad it’s stated so clearly in the terms because that helps the unfairness be clearly identified.
@Ben1 The FCA have made it clear that a complaint can be provide verbally or in writing, so do whatever method you prefer. I chose letter. Don’t expect a timely acknowledgement (a clear contravention to the FCA’s complaints handling rules).
If you had c. £150k worth of spend in the 60 day notice period, personally I would be wary of complaining about these missing points if largely generated via excessive Curve/NS&I payments going in a circular motion and would stick to the free night.
Whatever you raise your complaint about (missing points/free night/refund) reference the contents of the closure letter, any other correspondence/calls, your statements and the T&Cs as reasons why you think these missing benefits must be provided.
So I’ve held off complaining to creation as I was hoping they would have started refunding people points, vouchers and money by now!
What is the best way to go about complaining? Post or via email?
Have read through the last few pages the basis of my initial complaint should be:
1) please send over 300,000+ points that were due at time of closure
2) please send over free night voucher
3) please give pro-rata refund of card feeDo I need to go into specifics as listed in the recent pages here or do I wait to be rejected like everyone else?
Phone, keep a note of time and date of your call and ideally who you spoke to. Make it an official complaint as that starts the 8 week max clock ticking before you fill out a forn to take it further.
For good form personally I’d email them after the call as well.
Make sure you don’t leave anything you want out as adding extras later is hard.
Personally I’d be putting a cash value on a free night and claiming pro rata according to how much I’d spent towards one if I was in a new card year and only spent part. “Nothing to lose”
I’ve just received my complaint letter from Creation.
Strangely not upheld.
I’ve read back a few pages but lots of posts about what’s right and wrong and can only see one where next steps were discussed.
So I now need to write to FOS which I’m happy to do. Would anyone be willing to share a template letter so we are pursuing them on consistent grounds?
Thanks
If you had c. £150k worth of spend in the 60 day notice period, personally I would be wary of complaining about these missing points if largely generated via excessive Curve/NS&I payments going in a circular motion and would stick to the free night.
I don’t know why there would be any reasons to be wary, but in any case Curve didn’t work with Creation cards during the notice period, so those points couldn’t have come from that.
I’m not very familiar with this whole area of law but would an FOS decision then apply to everyone affected, or would each party still have to pursue an individual claim? I’m thinking of recent challenges to the government’s changes to public sector pensions where it was found that these discriminated against certain groups of employees. Not everyone lodged a legal challenge, but everyone who was affected will be offered a legal remedy. Possibly it doesn’t work like that in financial services matters though?
Compensation for everyone affected would be a matter for the FCA, I believe.
@JDB: “ For what it is worth, as in a previous post, some of the CRA paras you listed don’t apply, owing to the nature of the contract and those exclusions are specified in the Act.”
You will notice I did not include 8) relating to a trader’s ability to unilaterally close without cause as Financial Services providers have an exemption here & you will no longer see anyone on this forum arguing they don’t have this right.
The only other exemption granted to them is relating to 11) & here it is only with respect to changes in interest rates & fees.
Are you just out of your depth now or just deliberately trying to throw others off track?
- This reply was modified 55 years, 4 months ago by .
@LadyLondon – your position re the voucher is that you/affected parties need 1) to change the official nomenclature of the voucher 2) argue that it is earned/awarded at some point in time other than that specified in the terms 3) argue that the £10k takes primacy over the anniversary. It would be helpful to everyone if you could give everyone the precise argument/wording to persuade a judge or FOS; in reality you probably have max 1 minute/5 lines before they go with the ‘elephant in the room’…
“4. Anniversary night voucher
On the anniversary of your account opening, so long as your account remains active, you will earn one anniversary night voucher anniversary night voucher to redeem at any IHG property, provided you make annual pPurchases totalling a minimum of £10,000.” (sic)If, separately, you contend that there is anything about this term that isn’t clear or transparent or was not provided to the customer, what is it?
@JDB the point is this is Unfair Contract Terms. CRA requiring fair contract terms and any other relevant statutes requiring fair treatment of the consumer as the weaker party in a business-to-consumer contract are statutes – and as such override any contract terms.
I am glad it’s stated so clearly in the terms because that helps the unfairness be clearly identified.
The free night only posting at the anniversary is not in itself unfair. The unfair matter here is that Creation did not allow the accounts to reach the anniversary without any fault on the side of the customer.
“ Compensation for everyone affected would be a matter for the FCA, I believe”
The CMA is the body responsible for enforcing the CRA hence my advice to carefully study their guidance on “Unfair Contract Terms”;
A court will give significant weight to this guidance & it would take very strong & novel legal argument to overturn the principles within.
The FOS adjudicators may overlook or ignore the CRA but that is merely a reflection on their training & impartiality (or lack of).
If there were a number of successful claims against Creation in the civil courts then I would be asking the CMA to consider enforcement action. If successful (as I believe it would be) then Creation would be forced to give remedy to all those affected.
I wasn’t talking about the CRA.
The FCA could e.g. tell Creation that they have to transfer the points earned during the notice period given that they’ve issued 3 statements during that period stating that points were earned and would be transferred. That has nothing to do with contracts or T&Cs.I mean, I imagine the FCA has authority to enforce its principles, no?
I mean, I imagine the FCA has authority to enforce its principles, no?
The starting point is that the FCA has a complaints rulebook, DISP, that requires firms to consider FOS rulings and decide whether they have broader applicability to its customers. If so, firms are required to treat customers appropriately.
If the FCA concludes that firms have gone against the DISP rulebook, it has a wide range of enfort measures, including personal fines for the senior managers holding the relevant controlled function.
- You must be logged in to reply to this topic.
Popular articles this week:
