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Creation Financial Services bashing

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  • jj

    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.

    JDB

    Are you just out of your depth now or just deliberately trying to throw others off track?

    Wow! I must congratulate you on your search engine skills; you started very well and provided helpful comments for people but latterly, you’re having a laugh at everyone’s expense.

    Like Boris, you are promising ‘sunlit uplands’ based on a pot of piffle.

    In reference to throwing people “off track” I have provided the other sides’s counter arguments for people to address whereas you have, at a very late stage, provided a series of internet sourced random elements designed to ensure prolix submissions littered with complete red herrings and bad/non arguments that risk concealing the good arguments many might have.

    You do nicely round all this off with your remarkable prejudgement that the “FOS adjudicators may overlook or ignore the CRA but that is merely a reflection on their training & impartiality (or lack of).”

    Scottpat78

    Hi. My original complaint was not upheld by creation. I replied stating my position again. I received a full annual fee refund 2 weeks after this in response. I’d say it is definitely worth replying and restating your points and position. I did and it got me a changed outcome. Good luck.

    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

    Thegasman

    Apologies to JDB for playing the man not the ball last night.

    You have fulfilled a very useful role in playing devils advocate here. I agree entirely that to achieve a successful outcome a complainant needs to understand & rebut the respondents likely defence.

    You have provided some links to previous FOS decisions which, whilst not considering the exact same circumstances, give a guide to how they interpret issues around earning vouchers etc. From these it is clear that saying I spent £10k so you owe me my voucher will not be successful.

    I would take slight exception to being accused of random cut & pasting from Google. I have merely been highlighting what I believe are the correct arguments to rebut Creation’s reliance on their strict interpretation of T&C’s.

    Perhaps it might be useful if we could agree some common ground?

    a) does the CRA 2015 apply to Financial Services companies (not withstanding the limited exemptions contained in Part 1, Schedule 2)?

    b) would the CMA guidance on unfair contract terms not be viewed as relevant to any argument over whether Creation’s T&C’s are indeed unfair & therefore not applicable?

    If you disagree then I’d be genuinely interested in your thoughts as to why.

    Clearly I have chosen to quote small parts of those 2 documents that I believe are relevant. It is obviously beholden on any complainant to read them & decide if there are other parts which support or discredit their arguments.

    I would also be interested to know is a bit more detail about your background. You seem to have some inside track on the workings of the FOS so maybe you can advise on how they give weight to principles of fairness.

    You have provided an example relating to Creation & the award of free night vouchers where an adjudicator interprets them literally but there are other examples eg. DRA4855415 & DRN8989516 where the CRA is cited & companies have lost based on T&C’s not being sufficiently clear or fair & balanced.

    I would argue Creation’s T&C’s are not clear on the issue of points/voucher earning in the notice period so the adjudicator/judge has to find in favour of consumer.

    Equally it’s failure to award vouchers where spend threshold has been reached is an imbalance in rights & therefore unlawful. The customer is not permitted to close account & receive a fee refund (ie. rescind their side of the deal).

    toddy

    You have provided an example relating to Creation & the award of free night vouchers where an adjudicator interprets them literally

    Interestingly in that case, the adjudicator actually upheld the complaint. It was only when it was escalated to an Ombudsman that the decision was reversed and Creation won (and also the pertinent facts of the case are significantly different).

    JDB

    You have provided an example relating to Creation & the award of free night vouchers where an adjudicator interprets them literally

    Interestingly in that case, the adjudicator actually upheld the complaint. It was only when it was escalated to an Ombudsman that the decision was reversed and Creation won (and also the pertinent facts of the case are significantly different).

    Yes, in reading cases Creation is good at this so, as previously warned, people need to be careful. Creation seems to recover a lot of preliminary decisions that go against them, so the cardholder should read the preliminary decision very carefully and consider a response, not just assume it will be rubber stamped by an Ombudsman.

    JDB

    @Thegasman – the CRA does of course apply (if you can demonstrate it is actually engaged), but getting it applied, especially in the context of the Overriding Objective/proportionality is difficult; these are, in the scheme of things, trivial claims and not a lot of time will be allocated to analysing the minutiae of the terms and the relevant statutes/precedents. The CRA does also require you to show very specific and a fairly serious degree of unfairness to reach a legal threshold. In this context:-

    1. you mention an imbalance between the parties as being one example of unfairness. The terms of the credit card are exactly as provided for in law (CCA1974) – the cardholder can cancel without notice and the firm can cancel on two months notice. Neither party has to give any reasons. The annual fee is not refundable in either case, so the same fee is payable whether you have held the card for one month or one year and is expressed in that manner. That is standard industry practice for most firms, save Amex. Thus either party can ‘cause’ you not to reach your anniversary. I don’t see any imbalance.

    2. The term re the Anniversary 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) does not, in my view, engage CRA2015 for any lack of clarity, transparency or imbalance. The terms are brief, not complicated and were provided upfront, not in any way hidden. There is simply no promise that the voucher will be provided when you spend £10k (or indeed that the £10k has primacy as some here seem to suggest, in fact it could be the reverse) and no promise that the voucher will be provided at any other time or any other basis than having an “active” account on the anniversary. It is clear that it is open to either party, at any time, to cancel the agreement with any consequences that might have. You have accepted the operation of this term in previous years. I imagine that the firm will also say that the refunding of the annual fee for the worst affected parties was a generous ex-gratia concession and/or confirmation of the cardholder not reaching the anniversary when a fee would also have been due, along with the voucher.

    3. I think people whose anniversaries fell in Oct/Nov may have better case in respect of fairness, but the CRA does require all the circumstances to be taken into account (for MCOL) and as for ‘fairness’ this is still a subjective decision that could go either way, that may not play out well for everyone.

    4. There is a complication in the case of the voucher, as it isn’t really a money claim at all, it is a ‘loss of chance’ claim – no actual loss has yet been incurred – and the Court will not want to spend a whole lot of time trying to determine the value; they may not even accept it as a money claim. A discussion about some future booking or past cash bookings at a fancy price (which is of no real probative value) vs Creation saying it is a voucher of technically nominal value, that requires special availability and the claimant’s valuation is entirely theoretical etc. is not a very attractive prospect for the Court. I don’t think it really engages CRA either.

    5. In respect of points not transferred during the notice period, I don’t know the basis on which they can do this, but recent research shows that it is industry practice so I assume they will put up a reasonable technical defence. Their weakness is not specifying this upfront.

    6. A report on here said the OP got their voucher following a complaint because a specific representation had been made to them which the agent had fortunately documented. The fact that the firm quickly recognised that it was estopped from withholding the voucher, shows they do understand their legal responsibilities. Another party whose anniversary was shortly before the general Aug-Nov refunds has reported getting his £99 back. They did also settle with a number of people early on in exchange for closing their account and also provided some fee refunds prior to the general ones. These all show that if the facts of someone’s specific case have merit and the right arguments are put to them a business like but relatively conciliatory approach, they may quickly settle.

    Absolutely none of this should put anyone off, but what the man in the street might see as unfair treatment isn’t quite as simple as it appears, so you need clear, strong, concise arguments and a good chronology cross referenced/paginated to your supporting documents to maximise your chances.

    JDB

    @Thegasman one small additional thing I personally think people should be wary of is making a claim for the voucher, missing points and a fee refund as some have reported doing. This is simply because it seems quite inconsistent – on the one hand asking for a strict interpretation of the terms to get the first two but asking the firm to stray from the terms to provide a fee refund. Also, in one submission reported here it looks as though the parties had anniversaries in about Feb and April and were asking for the pro-rata refund from 3 Dec. That appears to be a tacit acceptance that the agreement did indeed end on 3 Dec, yet you want (under the agreement) to get the voucher for which/at a time no agreement will be in place which seems again rather inconsistent.

    • This reply was modified 52 years, 11 months ago by .
    Lady London

    “Either party can cause you not to reach your anniversary so no imbalance [between rights of cardholder and card issuer]”.

    Er…leaving aside that I still think giving Creation £10k of spend is what primarily qualifies the cardholder to receive the free night promise, and anniversary is almost a red herring and not the most important thing…

    Creation does indeed have enormous incentive to terminate a card if it thinks this makes the cardholder ineligible to receive all points for spend and if Creation thinks this makes the cardholder ineligible for the free night even if the cardholder fulfilled their part of the bargain by having spent enough.

    I believe a very important aim of Creation in terminating card accounts has been deliberately to avoid the cost of providing the promised benefits perhaps driven by events, or their own business mistakes or performance below their own expectations, or change in their viewpoint about how they want to operate their business.

    I call that an imbalance, an asymmetry in the contract in that either party can terminate but Creation can benefit much more than the cardholder by terminating. So this is indeed an unfair contract as the way Creation says it works, the business has much more to gain than the consumer, by terminating.

    JDB

    @Lady London re “Er…leaving aside that I still think giving Creation £10k of spend is what primarily qualifies the cardholder to receive the free night promise, and anniversary is almost a red herring and not the most important thing…” (my bold) what makes you think that?

    I’m not saying you are wrong, but I don’t see that primacy in the terms – in fact is is the second ‘condition’ listed. Tesco’s Premium 2500 Clubcard points and Amex’s PRG 10k MR anniversary bonuses operate in the identical manner, i.e. reaching the £2.5k or £15k spend doesn’t earn you any reward unless you reach your anniversary. What they are all actually rewarding is the anniversary with an additional hurdle, NOT hitting a threshold as in BAPP or Virgin Reward+. There is a clear difference and the anniversary is clearly the key point/event for Amex, Tesco & Creation and one could pretend it’s not there, but it’s a key problem that needs to be considered.

    JDB

    @Lady London I think that getting into Creation’s “aims” that you list is a road to nowhere. It would be complete guesswork and if they are criticised for not taking action earlier, they will likely say that yes, it appears there were issues, but as soon as management became aware, they took action within days, stopping the use of Curve, reporting themselves to the regulator, co-operating with other parties and then closing accounts, thus acting more decisively and quickly than others.

    Lady London

    @JDB yup, I was speculating that Creation cynically calculated that if they closed cards they would save costs. As you are saying industry practice is to not pay benefits during a notice period. Not even for notice given by the card issuer with no fault proven on the part of the cardholder Which I find quite shocking.

    I am wondering if FOS and the regulators have lost sight of unfairness-to-customers issues. All well and good for them to protect industry players who’ve now decided they’ve messed up or now want to avoid paying cardholder benefits they promised. Providers should be permitted to close accounts summarily – but only if cardholder benefits are paid out where earned save for the provider terminating. Otherwise there is just too much temptation for a provider to terminate to lose costs

    Of course Creation has been spinning it the way you say JDB – it’s the only way if caught redhanded. These unfair practices and any unfair contract terms that provider relies on to avoid providing earned benefits, need to be judged ineffective and outlawed.

    JerrySignfield

    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 fee

    Do I need to go into specifics as listed in the recent pages here or do I wait to be rejected like everyone else?

    £150k in 60 days, well done hope they pay up!

    Guernsey Globetrotter
    Jonathans

    I made a complaint to creation in November. My 8 weeks were up on 4/01 and I received an email “apologizing for the delay” as they “cannot provide a response due at present…due to internal delays” but the complaint is important and will “have a final response as soon as possible”. The letter invites me to take it to the FOS which i haven’t done yet and frankly reading @JDB comments i don’t see the point as it seems the odds are stacked against me yet it will take 6-12 months just to be told nothing is doing.

    My complaint is essentially about the free night, missing earned points and pro-rata refund of annual fee which i guess is the same for most people. Whilst the free night, i can sort of understand not getting as my Creation account won’t be open at the time of anniversary (March 22) and to me, this is a grey area – as Creation unliterally made that account closure decision and put me in the impossible position of the account not being open at anniversary. I find it incomprehensible for a firm to take an annual fee, close the account mid way through that year and not give some of it back. And the points earned during the notice period – i am not to know what industry practice is and without being told or reminded in the original closure\notice letter why would i not expect not to earn these. After all they let me spend on the card and the counters all went up every time?

    Another 3 weeks have nearly passed and I still haven’t heard from Creation nor have i chased either but again i shouldn’t really have to. Do I give Creation due credit for their diligence in investigating my complaint thoroughly or has it just been shoved to the bottom of the pile and forgotten about? Do i chase them, just give up or go to the FOS without chasing? In the meantime i have submitted a DSAR request to see what light that sheds on my account being targeted by them.

    Lady London

    JonathanS if you read just this thread, alone, on the new forum you will see you’re being treated just like others.

    Creation is only telling you you can go to the FOS because they’re legally obliged to mention this.

    You will see no progress is being made and no further information being gained from Creation by waiting arouns for them. Even if they are over 8 weeks which is realistically the maximum time they are supposed to address your complaint in.

    This is going to require you to make some effort and take them to the FOS and you can also MCOL them as well. If you read through you will see there’s enough material in this thread and in Daily Chat threads before the forum’s recent start, for you to start the processes.

    FOS is well known to be a complete mess right now. If enough people complain about a provider, in principle they should get around to promoting finsnce industry rule changes or even amendments to legislation. But that is a long process and currently they only seem to be famous for lack of productivity, and ineffectiveness. It’s not unusual for FOS decision not to remedy go in favour of the claimant at MCOL.

    toddy

    The letter invites me to take it to the FOS which i haven’t done yet and frankly reading @JDB comments i don’t see the point as it seems the odds are stacked against me yet it will take 6-12 months just to be told nothing is doing.

    The odds are not stacked against you.

    JDB is bizarrely building up a picture that Creation are experts in defending themselves at the Ombudsman and you should only complain if you have an excellent technical case. Absolute nonsense.

    Instead of a strange over reliance on ONE previous FOS decision, let’s deal with facts.

    Within the FOS’s last set of half yearly complaint data, 34% of all complaints were upheld. Whereas, 45% of Creation FS’s complaints were upheld. Creation fare significantly worse than the average organisation.

    With these odds, I’m more than happy to submit a complaint (which I did last week, after waiting 13 weeks on Creation.)

    Lady London

    @toddy, @JDB is warning us that Creation do have a point of view and are very creative in defending it.
    I am grateful he’s taking the trouble to warn us.

    This absolutely does not mean they will win against your claim if you reason your claim well and analyse the ideas that Creation can come up with and the likely features of the contract you contend, what finance industry rules can help you and what statutes such as CRA support you.

    In fact Creation is far more likely to underestimate us, than we are to underestimate them, as many people making claims have right on their side but present it poorly and without working on the basis of the rules, contract and statutes which the judge or ombudsman is supposed to start with as a basis for deciding your claim.

    Geoggy

    I am happy to write to FOS but no idea on level of detail required.

    Which is why I asked a few pages back for some help, either some bullet points or a template letter.

    Is anyone able to help?

    Jamjaw

    Got my formal response to my complaint – rejected. My anniversary fell in the notice period, annual fee charged (and subsequently refunded) but spend was there and points for 3 months not awarded (the notice period covered three statement dates). I will take to FOS but not hopeful

    Thegasman

    Got my formal response to my complaint – rejected. My anniversary fell in the notice period, annual fee charged (and subsequently refunded) but spend was there and points for 3 months not awarded (the notice period covered three statement dates). I will take to FOS but not hopeful

    I don’t see how you won’t win this. T&C’s say you need an active account on anniversary without defining what active means. An account that you can still use for spending is in most people’s eyes open/active. Where there is ambiguity the CRA states customer should get benefit of the doubt.

    Points & vouchers for anniversaries in notice period are pretty much a slam dunk.

    The more nuanced arguments around fairness & transparency relate to those who spent £10k but didn’t reach anniversary or pro rata fee refunds.

    Lady London

    @jamjaw I’ve said this before but it’s important.

    The annual fee was only to have the card in your wallet available to spend on. That’s all you paid the annual fee for. A number of cards have annual fees just to make the card available for you to use if you wish. You’d have had to pay the annual fee whether you spent on it or not.

    In particular the annual fee did *not* pay any benefits. Benefits such as IHG nights and IHG points were earned by your spend. They were an incentive to you to spend on the IHG card, instead of choosing to spend another way.

    So any return of annual fee can only relate to loss of the option to use the card. How much of the annual fee it would be fair of the card provider to return in the case of a unilateral no-cardholder-fault proven withdrawal of someone’s card by Creation, is not laid down. But a fair value returned reflecting loss of use might be pro rata by number of months or days card use was withdrawn. There, what any return of card fees covers, ends.

    This leaves outstanding the value of IHG points earned by spend and not credited, and the value of any free night earned that only Creation’s termination with no fault by cardholder, has stopped. I’d also be going for the value of any partially accruef free night too, even 10%. Value calculated using IHG standard points selling price and hotel room cash cost or other calculation base, that seems a fair cost you would have to pay to replace these benefits.

    Summary : keep the annual fee (that’s an entry fee) separate from the specific actions required to earn benefits (spending).

    toddy

    I am happy to write to FOS but no idea on level of detail required.

    Which is why I asked a few pages back for some help, either some bullet points or a template letter.

    Is anyone able to help?

    It’s ultimately up to you to decide what is fair and reasonable based on your personal circumstances.

    Personally speaking:
    1) I had hit the £10k spend, so asked for the free night cert
    2) I asked for the transfer of the xx,000 missing IHG points that were earned during the notice period.
    3) Also asked for a pro rata refund of the fee

    You don’t NEED any level of detail to submit a FOS submission but common sense dictates that if you take the time to clearly lay out your thoughts and make it easy for the adjudicator to follow your ‘story’, then you stand a better chance.

    I’d recommend you read this before you start. You need to understand the decision making progress and their emphasis on being “fair’. Make sure you stress how/why you believe Creation have not been fair and reasonable towards you.

    JDB

    I’m not sure why nobody has suggested making them an offer to settle, probably on a without prejudice basis in response to their letter rejecting a complaint, but seemingly also not closing the door.

    Froggee

    I’m not sure why nobody has suggested making them an offer to settle, probably on a without prejudice basis in response to their letter rejecting a complaint, but seemingly also not closing the door.

    Brilliant idea. I’ll do that. If nothing else it will be fun to see their response.

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