Mr M and NatWest
This is probably one of the most satisfying cases I have dealt with in recent years.
Mr M initially came to me through a referral from another client (as indeed do more than 80% of my clients, which is a figure I am absurdly proud of!)
Initially, the case seemed a pretty straightforward payment protection insurance case. I will normally have a chat with a new client about their recollections etc, but on this occasion Mr M was never available. Mrs M always took the calls and said she was happy to act as go-between. Anyway, after a few conversations, we were getting on well and Mrs M explained that Mr M would not talk to any financial company at all, not even me who was trying to help him.
The whole story then came tumbling out. Mr M’s first wife had apparently taken out loans with Natwest without Mr M knowing, forging his signature on the documents. Some of these loans had PPI, which I had been asked to recover. In their subsequent divorce, Mr M had had to take on some of these loans, even though he had not taken them out or seen any of the money borrowed. He thought, post divorce, he would be able to sort the situation out with the bank.
Sadly, he thought wrong. Over some years, Mr M tried in vain to get Natwest to see that he had not been involved in the loans. This became more and more important because he was unable to make the loan repayments and had fallen into arrears. The bank simply refused to listen and started chasing him for the debt, using debt collection agents.
Mrs M (his new wife) had had to try and sort it out for him, because the bank had put him under so much stress and pressure that he was close to cracking. And this was a tough soldier who had fought for his country in Iraq and Afghanistan. It goes to show just how ruthless the banks can be, when a man can face death and see his friends and colleagues die and keep going, only to be brought to the edge by a bank chasing debts.
Of course, I could not turn my back on this situation, so offered to see if I could help. By this time, I had actually made progress with the bank over PPI and had secured an offer of compensation. But the loan issues added complications. If Mr M had never taken out the loans, he could not have been mis-sold the PPI and there was a risk of the compensation offers being withdrawn. This would have been a disaster as the PPI compensation was a financial lifeline. But it did not stop the bank chasing the loan debts.
I decided the best solution was to enter into negotiation with senior management at RBS (owners of Natwest) Head Office in Scotland. I wanted a package that protected the compensation whilst solving the debt issue. And in the end I got it. The bank reluctantly agreed to write off the outstanding loans and we agreed a financial compensation package for the distress and inconvenience caused to Mr over many years, equivalent to the PPI compensation. And the best bit? The letter the bank sent to Mr M, confirming he no longer owed the bank a penny. After pushing him to the very brink of a breakdown, he was free at last to get on with his life with his new wife. A memorable case and one of my all-time favourite results.
Mrs H and her vanished inheritance
Mrs H was referred to me by her new financial adviser, whose clients I had helped in the past. He was concerned that an investment portfolio established by a previous adviser had lost a considerable amount of money – perhaps as much as £1 million – through poor choice of investments.
I should say here that poor investment performance is not actually a valid reason to try to claim compensation. The financial regulator won’t allow it, on the basis that nobody can truly predict in advance how any investment will perform.
Nevertheless, I took the case on, as it is always possible some of the investments were unsuitable, quite apart from being poor performers. Unsuitability is a reason that can give rise to compensation.
It soon became clear to me that poor performance was not at the root of the problem. Yes, some of the investments had performed below expectations, but the portfolio was spread amongst quite a lot of different assets. Such diversity rarely results in the kind of catastrophic decline in value that had happened.
The investment manager provided a breakdown of the transactions on the portfolio, going back to the beginning. They were unbelievably complex! Constant movements in funds and investments, some totalling hundreds of thousands of pounds at a time. Poor Mrs H had no idea about any of it. Although the money was nominally hers (an inheritance), her husband had been given charge of the portfolio.
I asked if she had bank records, as the portfolio values indicated considerable amounts must have been withdrawn over its entire history. No, she had no statements, but we ordered them from her bank. Unknown to Mrs H, she and her husband had about 8 accounts in joint and individual names. And what they showed was money coming in from the portfolio and being spread around the accounts and then disappearing either in spending or further transfers out. Sadly, the truth was out. Mr H had been taking money out of the portfolio for his own use. Over 8 years, he had removed nearly £1 million. It was not easy explaining to Mrs H that the reason her portfolio had declined in value so much, was not down to poor investment performance as had originally been thought by her adviser, but due to her husband’s plundering.
By this time, Mrs H was divorced anyway. And to add insult to injury, Mr H had kept another chunk of the portfolio in the divorce settlement.
Mrs H was, naturally, aghast but new the money was gone. The best I could do was analyse the investments that she had been recommended to have and, having found some which I believed unsuitable, try to gain some measure of compensation for her. In the end, it was possible to prove considerable loss had been suffered due to unsuitability alone, and compensation of more than £90,000 was achieved. Although only one-tenth of the amount lost, it did at least provide some comfort for Mrs H and boosted what was left of her portfolio by more than third.
Mrs K and Nationwide PPI
This was a case of PPI being sold on a personal loan to a lady for whom it was not suitable. It is quite typical example, however, of how a lot of lenders try to defend the sale of this kind of insurance and highlights the lengths that sometimes I have go to win the case.
Nationwide are one of the most aggressive lenders in claiming they did not give customers advice. The Society likes to claim it merely provided information and brochures about the PPI policy, leaving it to the customer to decide whether they wanted it or not. I am always doubtful about this claim as PPI is quite a complex product and most people would want it explained to them in person.
This was the case with Mrs K. The Society gave her brochures to read, but the staff member also talked in glowing terms about PPI and how sensible it was for her to take it out. Does this represent giving advice? Nationwide thinks not, and nor do quite a lot of other lenders. The giving of information is not the same as advising someone to take a product or not, it is claimed.
This ignores two crucial factors, however. I find in nearly all cases that the “information” given is always biased in favour of the product being taken. And most people follow the lead given by the lender’s staff. They, after all, are meant to be the experts (at least, that’s how most members of the public view them).
Mrs K’s recollections were quite clear. The product was pushed quite strongly, but she was not questioned to find out if all benefits of the policy would be necessary and suitable for her. As it happens, she was not eligible for some benefits and had ongoing health issues that would rule out a successful claim in those areas. In effect, she was paying for a policy that in large measure she could not get a payout from. Not out fault, claimed Nationwide, as we gave her the product literature and we never give advice as to whether it is suitable for someone or not.
In Mrs K’s case, I was able to obtain the lender’s notes of their meetings with Mrs K. I had to use the Data Protection Act 1998 to get them, but there in black and white was a crucial sentence in a covering letter “I will be happy to advise you further on the insurance policy, but I think it would be sensible for you to have it”.
At this point, Nationwide gave way and admitted it did give advice on this occasion. It listened to the reasons I presented, explaining why PPI was unsuitable and agreed to cancel the policy and return the premiums.
However, the case shows that this “blanket” approach by lenders to claiming they did not give advice should be taken with a pinch of salt. How many other people (and their representatives) have just shrugged and accepted this assertion? I suspect the majority do, saving lenders like Nationwide a fortune in refunds. It should not be up to me to prove advice was given – lenders should be much more honest in admitting staff do give advice when a customer asks for it, and in checking each individual’s case notes for a record of that.
Mr D and Lloyds business loans
This is a classic case of mis-selling, showing how even a highly intelligent person can be led up the garden path by their bank.
Mr D was (and still is) an accountant, but was branching out into a secondary business with a partner. Lloyds provided financing and alongside it sold Business Protection Insurance; a product very much along the same lines as PPI.
The finances and partnership structure of the business were quite complex and I found the insurance would not actually have been of any benefit. It had, however, been made a condition of the business loan (and indeed two subsequent loans). I find this a lot. The insurance must be taken as part of the “package” but little heed is given as to its value to the business and its owners. Making the sale and generating revenue is what counts to the bank, not making sure their customer only pays for products they need.
It took Lloyds a long time to accept why its insurance was unsuitable as part of the lending package and then, to add insult to delay, it completely undervalued the amount of redress it should pay. This is not uncommon in complex cases. Banks tend to have standard redress formulas and will try to fit one of these to every case. It is not always appropriate, however, and bespoke calculations will often be needed to establish the correct amount of financial damage done and compensation required. The lesson is: don’t just accept the first offer that is made. Go the extra mile to fully understand the redress methodology and challenge it if necessary.
Miss H and her Zurich protection insurance
One of the most common issues that arises is that of over-selling. This is not the same as mis-selling per se. I consider that term better describes a situation where the policy sold was wholly unsuitable.
Over-selling is, instead, the practice of identifying a client’s potential need in a certain area but selling a product that is effectively a sledgehammer to crack a nut. This often crops in the field of life and protection insurance. Just how much life cover does someone need and what kind of product is best suited to meeting that need?
I find that a salesman will often try to sell a Rolls Royce when a Ford would do the job. Why? A Rolls Royce costs more and earns the salesman more.
Miss H’s case is a typical example of this. She was a young teacher, taking her first step on the property ladder. She took a repayment mortgage and the most appropriate life policy to match that would have been Decreasing Term Assurance. The DTA death benefit starts at the same level as the amount of the mortgage and declines each year as the capital owed falls with each mortgage repayment. It is the cheapest type of life insurance there is.
Miss H’s mortgage lender insisted she had life cover (even though she was single) so DTA should have been the obvious choice.
Zurich sold her a combined package of life insurance and income replacement insurance. The life insurance element provided a level amount of cover which would stay the same throughout the term. This is more expensive than DTA. The income replacement insurance would provide an income for a year if she were unable to work due to illness. The combined package was three times more expensive than simple DTA.
My view of the income replacement element was that as a teacher, Miss H enjoyed very good in-work benefits, which would protect her in any event if she were unable to work for any reason. It did not justify the cost – particularly as she was a first time buyer and on a very tight budget with lots of expenses to meet.
It was a classic case of over-selling. Zurich did not initially agree (as often happens, the selling company will always try to defend itself first) but after much debate, it did concede the package sold was not wholly suitable given Miss H’s circumstances. Zurich refunded the premiums she had paid (with interest) and set up a new DTA policy as a replacement.
Mr & Mrs G and a Barclays structured investment product
I see quite a lot of cases like Mr & Mrs G’s and it is fairly typical.
A structured investment is the catch-all term often used to describe a product whose returns are linked to the performance of a stock market index, but with some underlying guarantee in case the market suffers a major fall. I have a special page just about these products on the site – please click through from the menu above.
Mr & Mrs G were sold their investment bond by a salesman in a Barclays branch (the vast majority of these products were sold by bank branch staff). They were typical targets that the banks like to seek out: recently retired and with a tax-free lump sum sitting in a low interest savings account.
Barclays gave them the hard sell treatment and eventually they agreed to invest £25,000 in the product. According to Barclays, their investment was completely secure as it would be returned to them at the end of five years, even if the stock market was lower at that point. But if the market rose, they would participate in that growth. This was in 2004.
Four years into the product, the financial crisis hit and the stock market dived. At the maturity of the investment bond in 2009, Mr & Mrs G were amazed when Barclays told them they would be paid much less than their original investment. But we had a guarantee, they protested, we were told we would get at least our money back.
Barclays were unmoved. That guarantee, it told them, only held good provided the stock market did not decline by more than a set percentage during the five years. Of course, the market did decline by more during the crash. So Barclays took a big chunk out of their final payout, pointing to a clause in the documentation that enabled the bank to do just that. We did point this out in 2004, claimed Barclays.
Mr & Mrs G came to me, angry and convinced that this product term was not in fact pointed out to them by the bank in 2004, although they did confirm it was in the literature Barclays had given them. They just hadn’t read it, they admitted, and probably would not have understood it if they had.
My approach to this kind of case is to try to avoid getting into a debate with a bank about what was explained and what was not. Instead, I will try to concentrate on two other areas. Firstly, what is reasonable for a customer to read and understand, as most customers will take at face value what they are told face-to-face and just file the paperwork away? And secondly, irrespective of the product terms, was it actually suitable and meeting the customer’s needs?
There is always a duty on a customer to read the literature, but for me the greater duty is on the firm to explain the product fully at the time and make sure it is understood. There should be a record of how this was done in the sales file. But more importantly than that, how did the bank satisfy itself that the product was suitable and meeting the customer’s needs.
A lot of product recommendation reports in sales files are built up using standard paragraphs provided by the bank for its sales staff. It is hard to be certain from them exactly what was said in the meeting(s) and in what context. I found in this case that there was apparently some mention of the possibility of the final return being less than the amount invested, but it was very vague on when this might happen and how much less the final return might be.
This was a point in my favour. But I found much better arguments on the question of suitability and needs. Mr & Mrs G had never had any stock market related investment before. In fact, they had never had an investment product of any type – always keeping their money in simple savings accounts.
They had told the salesman they did not want to take a risk as Mrs G was not in good health and they wanted the option of being able to pay for private medical treatment in the future.
I considered this a compelling reason to judge the bond unsuitable and not meeting the customer’s need to possibly have immediate access to their money. It was a five-year investment, with penalties if surrendering early. Although Mrs G had (fortunately) not needed to pay for treatment in the end, all sales must be judged on the basis of the customer’s circumstances at the time of advice.
Barclays accepted my arguments and agreed to pay redress to Mr & Mrs G. They received all their money back, plus the interest they had lost at the court rate of 8% (a much higher rate than they would actually have earned on deposit).
The lesson to draw from this type of case is it is always best to concentrate on the wider question of suitability and need, rather than get into a (often pointless) debate about what might and might not have been explained about a product.
Mrs W and Lloyds Bank’s refusal to consider the case
As a general rule of thumb, if a bank can find a reason to refuse to consider a case, it will. The most common approach a bank will take to do this is to argue the case is “out of time”.
Under regulatory rules, there are time limits that apply to someone wishing to complain about bad advice. If the case is brought outside these time limits then the bank (or insurer) can refuse to consider the case and just reject it out of hand as being “out of time”.
The time limit rules state that a person has either six years from the time of advice or, if it would give more time, three years from the date the customer had reasonable cause to know they had grounds to complain.
The six-year rule is very straightforward to test. The three-year time limit, in contrast, is very much open to interpretation, What represents “reasonable cause”?
Mrs W’s case illustrates how banks (and indeed insurers) will try to make it cover as wide a span as possible.
Mrs W is an elderly widow and (similar to Mr & Mrs G above) was advised to put more than half her savings into a Lloyd’s structured investment product. It performed poorly (naturally) and matured after five years with little in the way of profit. That was in 2008.
Mrs W took no action at that time, and it was not until 2014 that her family came across the product literature. Instinctively thinking this type of investment was not suitable for their mother, I was asked to investigate the sale. I was more than happy to accept the instruction, as it seemed another classic case of a bank pushing an investment product onto a vulnerable customer.
Having considered the point of sale paperwork and product literature, I identified a number of areas for concern with the advice. The bank had not, in my view, explained the product in an unbiased and fair manner, nor in sufficient detail. Moreover, I disagreed with the salesman conclusion that the product met Mrs W’s attitude to risk. She had declared (or he had persuaded her) that she had a low risk nature, but not a no-risk nature.
On the basis of that declaration, the salesman recorded the product was a good match. My own view was that this was wrong on two counts. Firstly, the product was not in fact “low risk” as it had the potential to return less than the original amount invested and could, in extreme circumstances, return nothing.
Secondly, Mrs W’s apparent low risk attitude was at odds with her circumstances. Everything that had been recorded about her history and finances strongly suggested she did not have sufficient capacity to shoulder any risk, nor potentially suffer a loss. Her profile was one of a typical “no risk” investor,
I raised my concerns about the advice and how the sale was conducted with Lloyds. It came straight back and told me that as the product had matured more than three years previously, it was “out of time”. Mrs W, said Lloyds, had reasonable cause to complain about the product within three years of it maturing, if she was unhappy with the payout.
Wait a moment, I said to Lloyds, nowhere in my long letter have I mentioned unhappiness with the final value (although it was poor, I steered clear of saying it, knowing Lloyds would try to use it as a reason for a time bar). My whole letter was about issues concerning suitability of the product in general and potential breaches of the selling rules in terms of the “know your customer” requirements. Mrs W, I pointed out, knows nothing about the selling rules, nor about issues of suitability, and she herself did not therefore have “reasonable cause” to complain about these issues. Consequently, the maturity of the product in 2008 did not set the clock running on these issues unless Lloyds could provide convincing evidence that Mrs W had sufficient knowledge about them to raise her complaint at that time.
Lloyds, of course, did not provide any evidence of this kind. It simply refused to debate the matter, stating we could challenge its decision via the Financial Ombudsman if we liked.
Naturally, I did just that and the time bar was over-turned by the Ombudsman, which opened the door for the issues I had raised to be properly considered and Mrs W suitability compensated for the mis-sale.
The lesson here is that a “time bar” from a bank or insurer should never be taken to be the end of the matter. Banks are increasingly using this argument to reject cases, even when they know there is no valid reason to do so. I have lost count of the number of times I have successfully over-turned a “time bar” on appeal to the Ombudsman. What worries me, of course, is that ordinary consumers probably would not have the confidence or knowledge to mount a challenge and will just accept that their case is dead in the water. No doubt this is the reason banks site a time limit has been breached in so many cases. It is nothing short of unethical and denying people a fair hearing.
Mr & Mrs A and their Aviva endowment policy
The very first step in any complaint case is to indentify which firm has potential liability for the failure of a product. And secondly to make sure that, having identified which firm to complain to, the right issues are raised.
Three different firms, for example, could potentially sell an endowment policy from a well-known insurer. It could be sold by one of the insurer’s own salesman. A bank as the means of repaying an interest-only mortgage could sell it. Or, it could be sold by a firm of independent financial advisers (IFAs).
Mr A’s case was an example of how a product provider (in this case, Aviva) will do its best to deflect responsibility for the failure of a product onto another firm (in this case an IFA), if it possibly can and even when it should not. And that an IFA will do likewise, and pass the buck back to the insurer if it can. It is a practice that leaves customers with their heads spinning, as everyone denies responsibility for everything.
Mr A complained to Aviva about his endowment policy falling short of its target amount. Mr A was unhappy that Aviva had not given him any prior warning before the policy matured that it was performing so poorly. Aviva had in fact failed for more than 10 years prior to maturity to send Mr A any of the shortfall warning letters that regulatory rules demanded it send.
However, rather than admit its failing, Aviva told Mr A that he must complain about the shortfall on the policy to the IFA that sold it. So, that is what Mr A did.
It is worth pointing out here two important points. Firstly, a shortfall on an endowment is normally the responsibility of the firm that sold the product (not the insurer administering the policy). If the firm that sold the policy actually mis-sold it (i.e. sold it to someone unsuited to an endowment) then it follows the consumer would not have ended up facing a shortfall if that mis-selling did not occur. Complaining about mis-selling is legitimate and can lead to compensation being paid.
In contrast, a complaint just about poor investment performance is the responsibility of the firm administering the policy. But crucially, poor investment performance on its own cannot be compensated. The industry regulator states that unless a firm has given a guarantee that a certain level of performance will be achieved, it cannot be held liable if the uncertainties inherent with investing have led to a lower level of performance than was hoped for or estimated.
So, back to Mr A. His complaint was a bit confused (not too surprising) and his IFA was astute (or devious if you prefer) enough to use that to their advantage. They skirted around the mis-selling angle of it and concentrated on the poor performance aspect. Consequently, they offered to help Mr A make his complaint about this back to Aviva! Although they knew how pointless this was, as it would never lead to compensation being paid, it enabled the IFA to keep Mr A at arms length as regards mis-selling.
Unfortunately, Mr A was not sufficiently knowledgable to spot the sleight of hand. He just got more and more confused as the case went round and round in circles between the IFA and Aviva. In the end, Mr A was helped by the IFA to take his case against Aviva to the Financial Ombudsman. Now the Ombudsman won’t consider poor performance complaints at all (because they cannot lead to redress) and promptly informed him that if he wanted to pursue compensation he must complain to the IFA! Mr A of course said he already had!
It was at this point that Mr A asked me for some help. I could see immediately what had been going on. For Mr A there was no difference at all between complaining about a shortfall and complaining about poor performance. It was one in the same to him. After I explained the difference, he began to see how both the IFA and Aviva had both been exploiting his lack of awareness to deflect his case.
At Mr A’s request, I agreed to try and help. Pursuing the mis-selling angle against the IFA I told him was unlikely to lead to compensation. There was hardly any paperwork available from the point of sale and Mr A’s circumstances at the time did not suggest that an endowment mortgage was likely to be considered wholly unsuitable.
The only option was to pursue Aviva. But crucially, not on the question of poor performance. That was not going to lead to compensation being paid. The only route open was to argue that Mr A had been denied the opportunity of dumping the endowment earlier by Aviva’s repeated failures to warn him about the impending shortfall. If he had ended the endowment earlier, he would have cut his losses sooner. Aviva admitted its errors with the letters but offered just a few hundred pounds in redress. The shortfall it maintained was due to potential mis-selling by the IFA.
Taking the case to the Financial Ombudsman Service, I found little sympathy from the first adjudicator. She endorsed the Aviva offer and view about his need to argue mis-selling by the IFA and, for good measure, told me in no uncertain terms that the Ombudsman was most unlikely to reach a different decision.
Undaunted, I decided to take the case further, through to the full Ombudsman hearing. It took nearly 12 months of hard debate and argument before the Ombudsman came down on our side and told Aviva to pay Mr A nearly £13,000. It is the only case of which I am aware that compensation for a shortfall was paid by a firm other than the original policy seller.
It was an excellent result from an unpromising case. But I include it here as an example of how important it is to know whom you need to go up against and what you must (and equally importantly, must not) complain about.