Problem with BA Amex after wrong call centre advice

[landersd]

I rang American express to upgrade my existing free BA Amex card to the premium card
when I rang up I asked the representative “if I upgrade the card would my existing companion voucher be upgraded to the premium voucher.”
I was told categorically yes ,
I asked the question again as I wanted to make sure that I was doing the right thing , “will my voucher be upgraded, it has been awarded it but not been redeemed ,”again their representatives told me ” I guarantee your voucher will be upgraded’
I said ok I would like to upgrade my card she went through all the terms and conditions and before I accepted it I again asked will my voucher be upgraded and she guaranteed yes
I went ahead with the upgrade

About a week later as my vouchers not been upgraded I got in touch with American express who told me I had been given the wrong information and that my voucher would not be upgraded

I asked this to be considered by a manager, eho said although they agreed with me they could not upgrade my voucher

I asked for this to be raised to a formal complaint against American express
Today I I received an email confirming that after considering everything ,and listening to the phone calls, they agreed I had been given wrong information and that they have upheld my complaint .
But still they refused to upgrade my voucher and have offered me £100 compensation

I believe that I am entitled to what I was “guaranteed’ to get …..an upgraded companion voucher

I do have the option of going to the ombudsman but I am more considering going down the small claims court route

Anybody on here can give me any advice would be greatly appreciated

[NorthernLass]

I think you’ve misunderstood how it works. If you upgrade to the paid card before you earn the voucher, you’ll get the BAPP voucher, valid for 2 years, etc. If you’ve already earned the voucher, nothing will change that. There is an absolute wealth of advice on here about how to make this work to your advantage. You are getting £100 because Amex staff gave you the wrong information, not because you have a voucher you don’t want. This is a common occurrence with Amex, but also a well-documented one!
I would definitely not advise making a formal claim about this as you would not have a leg to stand on and also Amex might end up closing this route to other cardholders – which would actually please some readers on this site!

[NorthernLass]

Incidentally, where did you get the idea that a companion voucher you’ve already earned can be upgraded?

[Scott]

So sounds like the agent gave you incorrect info, but as NL has posted, the type of voucher can’t be changed after it’s been issued.
£100 compo seems reasonable, as you haven’t really lost out as there isn’t any way in the circumstances that you could have got a premium voucher in the current card year. Obviously you’ve paid a premium card fee, but you can cancel for a pro-rata refund.

[RK228]

landersd wrote:

I believe that I am entitled to what I was “guaranteed’ to get …..an upgraded companion voucher

To my mind, the only people that really should be “entitled” to the premium voucher are those that actually spend £10,000 on the British Airways Premium Plus card during their membership year.

[NorthernLass]

As someone who has been spending (well over) £10k per year on a BAPP which was opened in 2011, I think you can’t take these things too personally or it starts taking the fun out of the game. Plus Rob wouldn’t get as many page clicks. But you can’t complain because you haven’t read the rules properly …

[StanTheMan]

Sounds like you knew the rules, and went on a little fishing expedition.
Thought you’d hit the jackpot with a badly informed rep and then tried to blag something you werent entitled to.

[Harrier25]

The only problem here is that you took incorrect advice from an Amex call centre person, which always ends in tears.😢 Ask your questions on here. Rob and contributors on HFP are very knowledgeable and are always willing to offer correct advice.

[taylor90]

It is certainly arguable that the agent’s representation as to the voucher was incorporated as a term of the contract. Whether that term was a condition, warranty or innominate term is another matter(this affects the remedies available).

There is an offer (with the orally agreed term incorporated), acceptance (usually they read out the headline terms and you say ‘yes’, intention to create legal relations(rebuttable presumption), and executory consideration (they are promising to provide a credit facility and a voucher as described if the other terms are met. In return you are promising to repay money borrowed on the lenders terms and to fulfil the terms of the contract to receive the voucher – promises have been made and exchanged between promisee and promisor.)

There is likely no common mistake or mutual mistake here regarding the subject matter of the contract. Both parties are clear about what was being exchanged and it would have been clear in the minds of both parties what specific voucher was being referred to.

A stumbling block will be whether the agent had authority to bind amex. Authority can be actual, implied or ostensible. It is almost certainly the case that the agent did not have express actual authority to vary standard form contract terms and bind amex. Implied authority can be inferred by conduct(would a reasonable person believe the employee had the authority to bind the firm). Ostensible authority is where someone is reasonably entitled to assume that an employee had authority to bind a firm. However, a firm may be able to defend itself against a claim of ostensible authority if the person should have been ‘put on enquiry’ to confirm if the employee did have actual authority. This will heavily depend on the nature and size of the agreement etc.

If the contract was formed in writing i.e you agreed to be bound by written terms (that were provided to you or you were directed to) then the parol evidence rule will apply. This rule means that any oral terms of a contract made before or contemporaneously with the written agreement will be excluded and the terms of the written contract will be the only contractual terms. However if the agent’s representation induced you to enter into the contract then you may have a claim under the Misrepresentation Act for negligent misrepresentation and be able to seek a remedy of rescission of the contract or damages.

However the representation may still be included as a term of the contract under section 50 of the Consuner Rights Act which provides that anything said by or on behalf of a trader about a service, and it is taken into account by a consumer when deciding to enter into a contract, will be treated as a term of the contract.

Amex may include a unilateral termination clause in their standard form contracts, however this may be an unfair term under Part 2 of the same Act.

I would be extremely cautious about bypassing the ombudsman as court generally do not view this course of action favourably. Indeed the ombudsman is likely to have been included as an arbitration clause in the contract obliging you to go down that route first.

[Jon]

I was going to mention section 50 of the Consumer Rights Act (I’m not a lawyer but I have spent a lot of time reading and re-reading the CRA recently, ref Creation). I suspect the problem the OP would have here is remedy, even if a court of FOS found Amex were at fault. I believe once Amex have awarded a 241 voucher, it goes to your BAEC account from where they can’t touch it (hence all the “you’ll lose your voucher if you cancel your card” stuff being utter rubbish). So they literally can’t upgrade the voucher even if they wanted to (in the same way that in my MCOL case with Creation, the court could not order them to do something (award points and voucher) they may no longer have been able to do). Amex might I suppose award a new voucher, but I think that would be a goodwill gesture only, and somehow I doubt they’d do it. More likely, I would have thought, is that they would offer to put you back in the position you were in previously, ie reverse your card upgrade / cancel your BAPP / refund the fee, and issue you a new regular BA Amex. Or just do the former and not bother with the latter 😉 On this one, I’d probably take the £100 compensation offered, and save yourself the hassle of further action.

[meta]

On a side note, Amex and BA can alter the voucher actually. Several years ago I upgraded from free card to BAPP before spending £10k. I immediately spent the extra amount needed for the voucher, but the voucher was issued with 12 months validity instead of 24 months. It took 1-2 months and several phone calls, but in the end they altered my voucher already in BAEC.

OPs case is different. I’d move on. Take the £100, book myself a short-haul economy, cancel the card and reapply in three months.

[Jon]

meta wrote:

On a side note, Amex and BA can alter the voucher actually.

Interesting (and useful) to know. Although presumably it was BA that did the altering, at Amex’s request (with Amex perhaps paying something or other to BA for the privilege, depending on whose mistake it was)? So my point about Amex not being able to touch the voucher themselves stands 😉

[NorthernLass]

Yes, voucher being earned with the free card is the issue here. I wonder why the OP has not come back to comment?!

[meta]

@Jon It was actually Amex that informed me that it’s been done. BA was very much in the ‘we don’t care’ mode. My point was that vouchers can be changed, but it requires goodwill. In OP’s case, Amex clearly didn’t want to do that.

[JDB]

Jon wrote:

meta wrote:

On a side note, Amex and BA can alter the voucher actually.

Interesting (and useful) to know. Although presumably it was BA that did the altering, at Amex’s request (with Amex perhaps paying something or other to BA for the privilege, depending on whose mistake it was)? So my point about Amex not being able to touch the voucher themselves stands 😉

It’s clear that Amex can retract vouchers or amend them in various ways and it doesn’t matter whether they do that directly or via their agent. The fact they currently rarely do is an entirely different issue.