Creation Financial Services bashing

[NorthernLass]

So I’ve had a letter from Creation today saying that my original complaint is not justified because of the “business decision” excuse. It refers to the free night certificate but makes no mention of the 37k outstanding points on the account. Can I now take this to the FOS? It’s not even a full response to the complaint!

[JDB]

NorthernLass wrote:

So I’ve had a letter from Creation today saying that my original complaint is not justified because of the “business decision” excuse. It refers to the free night certificate but makes no mention of the 37k outstanding points on the account. Can I now take this to the FOS? It’s not even a full response to the complaint!

Yes, after 8 weeks/the final response you are entitled to go to the FOS. That presumes that you raised the issue of the missing points in the same complaint (so there isn’t maybe another letter on its way). What you can’t do is to raise new issues/complaints to the FOS that the firm hasn’t had the opportunity to address, although you can put new/additional arguments to the FOS. It’s not clear if it is incompetence or being a bit cute, but either way it’s quite unhelpful to miss out the issue entirely as that is complaints handling 101.

[indo555]

There has been a considerable amount of speculation about the outcome of claims against Creation. Some users state that there are precedents where the Credit Card company has succeeded in its position of not awarding ‘benefits’ from the day that a notice of closure is issued. However, I cannot find any comments on the position if you contest that the notice of closure is not valid. The T&C states that there should be at least 60 days’ notice of closure. I received my letter on 20th October although it was ‘dated’ 30th September. The letter was sent unregistered second class post. The legal advice that I have taken is that in England a legal notice is deemed effective the day it is received not the day it was sent. In this case I have not received 60 days’ notice of closure and therefore the closure notice is invalid. Furthermore, I have not received any notice of updated or revised T&C’s since my card was first issued nor have I been advised that points awarded since the ‘closure notice’ would not be added to my account. In UK law fraud is defined as ‘making a dishonest representation for your own advantage or to cause another loss, dishonestly neglecting to disclose information when you had a duty to do so’. It can be argued that Creation had a duty to disclose that points would not be awarded and that free nights earned would not be honoured in the ‘notice of closure’ letter. Not disclosing this information has caused cardholder loss and could be regarded as dishonest. If T&C’s have been revised Creation had a duty to advise cardholders.

Whilst I am writing I want to add that I take great offense at those contributors that assume that all those who have received ‘notices of closure’ from Creation were in their words ‘naughty boys’ (or girls) hell-bent on cash recycling to gain points and free nights. This is clearly not the case. I have never used my card for NSI payments or the like. I did have a short period of about 25 days when I linked the card to Curve for about 20-30 transactions but found Curve customer service so bad that I delinked the IHG card before receiving the ‘closure notice’. I am convinced that it is a weeding-out process by Creation of non-profitable heavy card users that had earned a free night.

There has also been some bashing of IHG for its role in all this. I have had several communications with IHG and all responses have been quick and helpful – I think that it is just caught in the crossfire.

[stevenhp1987]

NorthernLass wrote:

So I’ve had a letter from Creation today saying that my original complaint is not justified because of the “business decision” excuse. It refers to the free night certificate but makes no mention of the 37k outstanding points on the account. Can I now take this to the FOS? It’s not even a full response to the complaint!

Out of curiosity does it say it’s a final response (and gives you your FOS rights?).

I wouldn’t be surprised if they’re simply ignoring the full extent of the complaints and not doing their job correctly given how incompetently they’ve handled the entire situation.

[NorthernLass]

Indo555 – There’s no fraud – firstly you haven’t actually “lost” anything, you would have to have been in possession of something tangible initially to lose it, and secondly it’s very well established that loyalty points and the like are not considered as “property” in law and have no monetary value. This is definitely one for the FOS or civil claims courts.

• This reply was modified 54 years, 8 months ago by .

[NorthernLass]

@stevenhp1987 – yes the FOS leaflet was enclosed but I am just wondering if they would say that I haven’t had the full complaint investigated so can’t get involved at this stage! (Yes I did mention the points in the initial complaint and have not yet received any information from Creation to the effect that they won’t be transferred to IHG).

[stevenhp1987]

NorthernLass wrote:

@stevenhp1987 – yes the FOS leaflet was enclosed but I am just wondering if they would say that I haven’t had the full complaint investigated so can’t get involved at this stage! (Yes I did mention the points in the initial complaint and have not yet received any information from Creation to the effect that they won’t be transferred to IHG).

In that case, it might be worth following up with a phone call & email pointing out how they haven’t even looked at this point and how they cannot, contractually, withhold said points (pointing to the relevant T&C).

Might look more favourably, but at the same time, I’d highly expect them to just say “business decision” even if said decision is a breach of contract.

[davefl]

indo555 wrote:

Whilst I am writing I want to add that I take great offense at those contributors that assume that all those who have received ‘notices of closure’ from Creation were in their words ‘naughty boys’ (or girls) hell-bent on cash recycling to gain points and free nights. This is clearly not the case. I have never used my card for NSI payments or the like. I did have a short period of about 25 days when I linked the card to Curve for about 20-30 transactions but found Curve customer service so bad that I delinked the IHG card before receiving the ‘closure notice’. I am convinced that it is a weeding-out process by Creation of non-profitable heavy card users that had earned a free night.

Not just the ones that earnt a free night. Mine was a white card, all I did was put between 50 and 250/month of normal spend through it where Amex wasn’t accepted and they closed mine too.

I havent been bothered to raise a complaint for the 47 points they owe me from september’s spend

[JDB]

indo555 wrote:

There has been a considerable amount of speculation about the outcome of claims against Creation. Some users state that there are precedents where the Credit Card company has succeeded in its position of not awarding ‘benefits’ from the day that a notice of closure is issued. However, I cannot find any comments on the position if you contest that the notice of closure is not valid. The T&C states that there should be at least 60 days’ notice of closure. I received my letter on 20th October although it was ‘dated’ 30th September. The letter was sent unregistered second class post. The legal advice that I have taken is that in England a legal notice is deemed effective the day it is received not the day it was sent. In this case I have not received 60 days’ notice of closure and therefore the closure notice is invalid. Furthermore, I have not received any notice of updated or revised T&C’s since my card was first issued nor have I been advised that points awarded since the ‘closure notice’ would not be added to my account. In UK law fraud is defined as ‘making a dishonest representation for your own advantage or to cause another loss, dishonestly neglecting to disclose information when you had a duty to do so’. It can be argued that Creation had a duty to disclose that points would not be awarded and that free nights earned would not be honoured in the ‘notice of closure’ letter. Not disclosing this information has caused cardholder loss and could be regarded as dishonest. If T&C’s have been revised Creation had a duty to advise cardholders.

I’m afraid you have been given totally duff ‘legal advice’ in respect of the service of the notice of closure of your account. It’s not even an issue that is open to interpretation. See Consumer Credit Act 1974 S176 re service of documents under the Act and additionally Interpretation Act 1978 S7. If you think about it, if service of legal documents were determined by receipt, everybody would be dodging them all the time; it doesn’t work like that. If in doubt, ask Prince Andrew. The remainder of your analysis is equally dodgy. You could research a ‘loss of opportunity’ claim in respect of your free night, but get advice from someone different.

• This reply was modified 54 years, 8 months ago by .

[SteveJ]

davefl wrote:

I havent been bothered to raise a complaint for the 47 points they owe me from september’s spend

Just for giggles raise a complaint? Just a two line email to : customercare@creation.co.uk

• This reply was modified 54 years, 8 months ago by .

[JDB]

@indo555 – I’m afraid you have been given totally duff ‘legal advice’ in respect of the service of the notice of closure of your account. It’s not even an issue that is open to interpretation. See Consumer Credit Act 1974 S176 re service of documents under the Act and additionally Interpretation Act 1978 S7. If you think about it, if service of legal documents were determined by receipt, everybody would be dodging them all the time; it doesn’t work like that. If in doubt, ask Prince Andrew. The remainder of your analysis is equally dodgy. You could research a ‘loss of opportunity’ claim in respect of your free night, but get advice from someone different.

[indo555]

JBD – Thanks for the comments and advice. Looking further I see that Practice Direction [1985] 1 All ER 889 states that, unless the contrary is proved, First class mail is deemed delivered on the second working day after posting, and Second class the fourth working day after posting. “Working Day” means Monday to Friday, not including Bank Holidays. In this case I received 59 days’ notice not 60 so it is probably too tight to call! The legal advice I got was is that normally the sender has to show that all steps were taken to deliver the notice within the appropriate time frame such as sending the notice recorded delivery. If I can prove to the Contrary that it was not received within 4 working days then there could be an argument. There is the other side to your comment about the service of legal documents by the receipt. If there is no recognition of receipt anybody could predate a notice letter or just not send one but say it was sent when it was not. But, I hear what you are saying and appreciate your comments. It has given me food for thought.

The loss of opportunity claim is the route that seems the most likely to succeed. Fortunately, I have recently used last year’s free night certificate so have a benchmark in value.

[Lady London]

As a tactic, if given an unsatisfactory answer I would call them (ideally) or email them asking is that their final answer. If you can get them to say that (record or note date and time of call and ideally who you spoke to) then that removes any ambiguity about whether you’ve made reasonable efforts to resolve with them before FOS/MCOL. Otherwise you can FOS or MCOL them if it’s been 8 weeks unresolved or ignored. (JDB recommends FOS first see his advice on this thread, and on previous daily threads pre-Forum inception, and quite possibly on today’s IHG card article by Rob.)

Even if they’d put in any notice communication to a cardholder that they planned not to award benefits such as free nights or points during the notice period, it would have to be already in the t’s and c’s that they could do this. This means it was either in ts and cs provided or readily available or ideally drawn to your attention when you took the card, or notified to you at some time with at least 60 days notice before it took effect. Otherwise even if Creation had said this in any notice given then they couldn’t not award points and count spendvtowards free nights in the 60 days notice they should have given before implementation anyway.

Doesn’t seem to me that Creation covered themselves properly here.

I really hope the FOS will rule Creation’s behaviour as unfair to their cardholders as consumers. My opinion of them will improve if they do.

At MCOL the argument is not about fairness, as it should be to FOS but about the law (unfair contract terms, asymmetry of contract etc) Follow what JDB says in presenting either case. Both are winnable IMV, but need to be prepared carefully as natural justice strangely enough should fly better at FOS whereas MCOL judge must follow the law (ie may not be able to award judgment to you unless you argue on the basis of the contract rather than what’s right).

So even though not all of what JDB says is what you want to hear, look carefully when he tells you what you need to look at to prepare.

[JDB]

@indo555 – not that it makes much difference, your reference is I think from a law report from an old case – you can google the current Civil Procedure Rules (which has the associated Practice Directions) – service of documents is at Part 6, but remember this refers to service of documents such as claims, procedural documents etc.

In this specific instance, the Consumer Credit Act 1974 specifies (at S176) the requirements for service of all notices under that Act (and your closure notice is under the Act S98A(3)). If the act did not specify, and many don’t,you would fall back on Interpretation Act 1978 S7. The onus is on Creation to prove (on the balance of probabilities) that they did comply. If you want to challenge the validity of the closure notice, I would do that on its own, before making any other complaint and put them to proof. It would be incredibly stupid/careless not to have served the notices properly, but who knows. Anyway, it’s best to establish the facts of that discreet point, so you know what you are dealing with rather than potentially muddying other arguments. There is no issue with time limits, save that once you have a final decision letter you only have 6 months to go to the FOS.

[indo555]

Lady London “Even if they’d put in any notice communication to a cardholder that they planned not to award benefits such as free nights or points during the notice period, it would have to be already in the t’s and c’s that they could do this. This means it was either in ts and cs provided or readily available or ideally drawn to your attention when you took the card, or notified to you at some time with at least 60 days notice before it took effect. Otherwise even if Creation had said this in any notice given then they couldn’t not award points and count spendvtowards free nights in the 60 days notice they should have given before implementation anyway.”

Thanks for this but I have looked all through the t&C’s that I have received (the Creation ones and the ones from the IHG Rewards Club that specifically refer to the IHG card) and can find no reference to not awarding a free night or points after closure notice has been served. Do you have specific information that it is in the t&c’s? I have not received any updated t&c or any notification that t&c’s have been updated.

I also have all the materials that were sent out with the card – it says ‘You’ll receive a free night voucher ….’ and ‘You will be upgraded to Platinum Elite status’ and you will earn 4 IHG reward points for stays at IHG hotels and 2 points per £1 everywhere else’ My case will focus on the fact that base on these materials there was an expectation of what I would receive in return for a £99 annual fee.

[JDB]

I also have all the materials that were sent out with the card – it says ‘You’ll receive a free night voucher ….’ and ‘You will be upgraded to Platinum Elite status’ and you will earn 4 IHG reward points for stays at IHG hotels and 2 points per £1 everywhere else’ My case will focus on the fact that base on these materials there was an expectation of what I would receive in return for a £99 annual fee.[/quote]

In respect of your last para you should see also FOS decision DRN2242979 – it’s not technically binding or a precedent but it’s also not irrelevant. You can read it for yourself, but at the end it essentially says that those headline details you refer to above are not the whole terms, just an illustration of the benefits, maybe in a leaflet?

[indo555]

JDB – Noted but these ‘benefits’ also appear with similar wording in the IHG Rewards Club Premium Credit Card T&C’s received with the card. I have a copy. Does this change anything?

[Lady London]

indo555 wrote:

Lady London “Even if they’d put in any notice communication to a cardholder that they planned not to award benefits such as free nights or points during the notice period, it would have to be already in the t’s and c’s that they could do this. This means it was either in ts and cs provided or readily available or ideally drawn to your attention when you took the card, or notified to you at some time with at least 60 days notice before it took effect. Otherwise even if Creation had said this in any notice given then they couldn’t not award points and count spendvtowards free nights in the 60 days notice they should have given before implementation anyway.”

Thanks for this but I have looked all through the t&C’s that I have received (the Creation ones and the ones from the IHG Rewards Club that specifically refer to the IHG card) and can find no reference to not awarding a free night or points after closure notice has been served. Do you have specific information that it is in the t&c’s? I have not received any updated t&c or any notification that t&c’s have been updated.

I also have all the materials that were sent out with the card – it says ‘You’ll receive a free night voucher ….’ and ‘You will be upgraded to Platinum Elite status’ and you will earn 4 IHG reward points for stays at IHG hotels and 2 points per £1 everywhere else’ My case will focus on the fact that base on these materials there was an expectation of what I would receive in return for a £99 annual fee.

[Lady London]

Lady London wrote:

indo555 wrote:

Lady London “Even if they’d put in any notice communication to a cardholder that they planned not to award benefits such as free nights or points during the notice period, it would have to be already in the t’s and c’s that they could do this. This means it was either in ts and cs provided or readily available or ideally drawn to your attention when you took the card, or notified to you at some time with at least 60 days notice before it took effect. Otherwise even if Creation had said this in any notice given then they couldn’t not award points and count spendvtowards free nights in the 60 days notice they should have given before implementation anyway.”

Thanks for this but I have looked all through the t&C’s that I have received (the Creation ones and the ones from the IHG Rewards Club that specifically refer to the IHG card) and can find no reference to not awarding a free night or points after closure notice has been served. Do you have specific information that it is in the t&c’s? I have not received any updated t&c or any notification that t&c’s have been updated.

I also have all the materials that were sent out with the card – it says ‘You’ll receive a free night voucher ….’ and ‘You will be upgraded to Platinum Elite status’ and you will earn 4 IHG reward points for stays at IHG hotels and 2 points per £1 everywhere else’ My case will focus on the fact that base on these materials there was an expectation of what I would receive in return for a £99 annual fee.

ok Rob this is the last time I am going to try to do this particular reply.
THE SOFTWARE HAS LOST TWO EARLIER PAINSTAKINGLY TYPED REPLIES TO THIS.

(1) REPORTED TWO INCIDENCES BEFORE, AGAIN THE SOFTWARE LOST MY REPLY ON EDIT. IT LETS YOU OPEN EDIT IN 5 MINUTES BUT IT LOSES THE EDIT COMPLETELY IN 5 MINUTES TOO. UNIMPRESSED TYPING REPLIES ONE FINGERED ON MOBILE THAT THEN GET WASTED.

(2) A CAPTCHA CAME UP AFTER THE RETYPED REPLY. SATISFIED IT (SICK OF SEEING 2 ROUNDS OF BOATS OR BUSES FOR NO GOOD REASON). THEN IT LOST THE REPLY. THANKS CAPTCHA. N O T.

ONE FINGERED ON A MOBILE IS NOT FUNNY LOSING REPLY TWICE. LAST TRY;

1. yes Indo55 that’s exactly my point. Creation did not put it in any terms and did not give 60 days notice before implementing.

2. No, IMV the card fee *only* gives you use of the card. Like other payment cards. *All* that you did to get points and free night, was do the spend. You fulfilled your part of the contract ie you spent. Creation did not fulfil its part of the contract it failed to credit the points and free night.

Card fee is separate and only gave you the use of the card. If they deprived you of the ability to use it then they should refund pro rata or maybe even all. The card fee is *not* for the points and free nights it’s just to have the card available to you to use that’s all. IMV keeping this distinction goes quite a way towards avoiding some problems in a claim.

[NorthernLass]

LL – If you get the Captcha, the post won’t appear. It seems to activate if you try and quote too many replies in one go.

[Lady London]

NorthernLass wrote:

LL – If you get the Captcha, the post won’t appear. It seems to activate if you try and quote too many replies in one go.

Tx NorthernLass. Finally had enough of it and blew a gasket

[memesweeper]

NorthernLass wrote:

LL – If you get the Captcha, the post won’t appear. It seems to activate if you try and quote too many replies in one go.

This has been my experience too, in this thread and elsewhere. Drives me mad.

[memesweeper]

JDB wrote:

I also have all the materials that were sent out with the card – it says ‘You’ll receive a free night voucher ….’ and ‘You will be upgraded to Platinum Elite status’ and you will earn 4 IHG reward points for stays at IHG hotels and 2 points per £1 everywhere else’ My case will focus on the fact that base on these materials there was an expectation of what I would receive in return for a £99 annual fee.

In respect of your last para you should see also FOS decision DRN2242979 – it’s not technically binding or a precedent but it’s also not irrelevant. You can read it for yourself, but at the end it essentially says that those headline details you refer to above are not the whole terms, just an illustration of the benefits, maybe in a leaflet?[/quote]

Sounds like FOS need to bone up on the actual law (again). Section 50 of the Consumer Rights Act 2015 effectively gives contractual force to anything written or said by traders to consumers where the consumer takes that representation into account in making decisions about the contract.

[JDB]

indo555 wrote:

JDB – Noted but these ‘benefits’ also appear with similar wording in the IHG Rewards Club Premium Credit Card T&C’s received with the card. I have a copy. Does this change anything?

@indo555 – I’m not sure as I haven’t seen that apparently more extensive set of terms, but my guess is that it doesn’t change much. What is interesting/concerning is that because those ‘terms’ are very much by way of ‘headlines’ (i.e. cover quite little), the FOS has imputed or inferred terms not explicitly set out in the text. That is usual in disputes involving B2B contracts but slightly unusual, albeit not unheard of, in B2C agreements.

My view in October that was shot down in flames by the majority on here, but supported by a few more experienced voices was that it was risky to assume one would get any benefits after service of the closure notice because the contractual relationship was under notice of severance. Some folded/settled, but many apparently decided to plough on until 3 Dec, essentially doing so advisedly.

I think the firm may rely on this and that it would be considered reasonable. They will likely also rely upon specific terms such as ‘open’ and ‘active’ as well as the broader points/IHG terms. In respect of points not awarded Oct-Dec, the above may apply, but I’m not sure if they will also rely upon the fact that once the erroneous past award of points was discovered, there is basically a debit on many accounts; it’s a bit of a stretch but far from impossible.

[EwanG]

JDB wrote:

I think the firm may rely on this and that it would be considered reasonable

JDB wrote:

the erroneous past award of points was discovered, there is basically a debit on many accounts

What a load of rubbish these two points are.
If there was fraudulent behaviour or other reason breaking the agreement, Creation should (and we know from others they have) use clause 12 to close accounts immediately.
To say there is a debit on accounts and Creation could justify that as a reason for not paying out points for Oct-Dec is simply a breach of contract.
The stable door closed on 9 Sept when they messaged about Curve transactions not being processed, but unless they said so clearly in the letters sent end Sept (and they didn’t & haven’t said it as there is no legal basis for Creation to rely upon) the card benefits should continue to apply.
My account has restricted functionality but it is still open, with an outstanding balance on it. It’s certainly not closed, which is when the benefits will stop applying!