The Financial Ombudsman (FOS) has published in September 2018 two Decisions involving payday loans over six years old:
- Mr H has complained about fifty-four payday loans Lender C lent to him between March 2010 and September 2014.
- Mrs W’s complaint is about nine short-term loans from Lender D between November 2009 and July 2012.
In both cases FOS has decided that its rules do allow it to consider complaints about loans over six years old. This is because the customer in each case has made the complaint within three years of finding out they could complain.
These are important decisions
These two cases are published in the Technical section of the FOS website, which the FOS describes as:
intended primarily for businesses, consumer advisers and other professionals who are comfortable with technical information – and want more in-depth analysis. It sets out the ombudsman’s usual approach to the disputes we see involving the financial products and services that are complained about most.
Normally Ombudsman decisions are published giving the name of the firm but keeping the customer anonymous. But here the lenders aren’t identified as FOS considers that these decisions cover common situations and will be of general interest.
These two new decisions are relevant to thousands of cases already at the FOS and many more potential complaints.
Background to these decisions
The FOS’s rules about time limits
Cases have to be brought to the FOS within a certain time. These limits are set out in the FCA’s DISP 2.8 rule and the relevant part is:
The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service: …
(2) more than:
(a) six years after the event complained of; or (if later)
(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint.
So for these affordability complaints where the payday loans are more than six years old, the question is whether the “three years from the date the complainant became aware” part applies.
How these time limits were applied before September 2018
Payday loan affordability complaints started to be made in late 2015. Some early complaints were upheld by the Ombudsman for loans over six years but most were rejected. But customers kept pointing out they had no idea that they could complain before.
In the summer of 2016, the FOS put all cases involving loans over six years old on hold, while they decided whether they could look at these older loans. This took until November 2016 when FOS sent letters to a number of lenders saying that it thought it could look at older loans, see my article from that date: Ombudsman will look at payday loans over 6 years old. After that several lenders started paying out on at least some older loan cases, as that article describes.
However Wonga and QuickQuid have put forward a variety of objections to the 2016 FOS decision over the last 20 months. And their cases have remained on hold. The following response from FOS to a reader with one of these cases was typical:
we’ve been speaking to [QuickQuid] about cases like yours – and they still insist we can’t look at any loans taken out more than six years before the complaint was made. We’ve explained that we think we can in a couple of cases. And they’ve come back to us with quite a bit of further information – and we’re in the process of considering what this means for cases, including your one.
The two decisions
These two decisions are together 46 pages long. It is unusual for an Ombudsman’s decision to be more than a few pages, but in these cases the length is to enable each Ombudsman to consider all the arguments on their case.
Here are some points from the two decisions that seem to me to go to the heart of the cases:
Mr H would also have been aware, or ought reasonably to have been aware, that he was paying an increasing amount of interest the more loans he took out. So I think that Mr H also ought reasonably to have been aware that he may have suffered a loss, or that he was suffering a loss as he was taking out these loans. But I wasn’t persuaded that Mr H realised that Lender C might’ve been responsible for his repayment problems – nor did I think that Mr H ought reasonably to have made that connection either. In my view, Mr H would, quite reasonably, have seen Lender C’s offer of further loan as a solution to his problem, rather than a cause of it.
Mrs W appears to be an intelligent and articulate individual who is capable of using the internet to access information. But I do not think it necessarily follows that a reasonable person in those circumstances, who became aware of affordability problems with her loan and who understood that she had suffered loss as a result, would also become aware that her difficulties could be due to failings on the part of the lender. In my view, a reasonable person in Mrs W’s circumstances would be more likely to take personal responsibility for the difficulties she faced.
I am satisfied that a reasonable person in Mrs W’s position could not reasonably be expected to have understood from her contract with LENDER D that the lender had an obligation to check that her loan was affordable before agreeing to provide it to her.
I fully appreciate that LENDER D feels strongly about this complaint, but having considered all of the evidence provided by the parties in this case … I am still not persuaded that Mrs W ought to have been aware of her cause to complain about any of these three loans any earlier than she says she did become aware (which I am satisfied was within three years of her complaint).
What happens now?
Will all payday loans over 6 years be considered?
These two decisions are not general decisions that all loans over six years will be considered. This is stated clearly in the second decision:
LENDER D says that, in taking this position, it amounts to a policy decision by the Financial Ombudsman Service that because of the prevailing circumstances in 2009 and 2010, customers who had taken short term loans which they knew were unaffordable would not have had cause to complain. To be clear, that is not what has happened here. As the deciding ombudsman, I am making this decision based on the circumstances of Mrs W in this particular case.
The FOS does not operate a system where its previous decisions set binding precedents for subsequent ones.
But by publishing these two cases in the technical section of its website, the FOS is saying that it considers the approach will be generally applicable. In effect, a lender now has to argue why someone should NOT get a refund, rather than the customer having to try to prove that they should.
Can the lenders carry on objecting?
After these two general decisions, it seems to me that lenders can either
- broadly accept them, but dispute the occasional exceptional case with FOS;
- decide to challenge a decision by the FOS in court, by asking for a judicial review; or
- reject many adjudicator decisions that FOS has jurisdiction and ask for an ombudsman review.
The second option seems unlikely to succeed given the exhaustive detail that the FOS has gone into in its decision making. The third option would be contrary to the FCA DISP 1.3.2A which says that firms have to ensure that lessons learned as a result of determinations by the Ombudsman are effectively applied in future complaint handling.
So, if this is right, then the lenders will have to accept these decisions for the most part and just challenge a few if any cases.
FOS will ask people how and when they found out they could complain
The FOS currently asks people complaining about older loans when they found out they could complain. After these decisions, I expect this to continue.
If you are asked this, the FOS doesn’t want a legal argument, it wants a brief description of your case:
- describe what it was like while you were borrowing. Perhaps you were trying to cope with a reduced income and not get behind with the rent. If you thought the lenders were helping you by giving loans and that your situation was your own fault for borrowing too much, then say so. If you had a gambling problem, then mention that. If you had no idea how much you had borrowed and have been horrified to discover what it added up to, say that.
- most people will have had no idea the lender had to make affordability checks, so say if you didn’t realise they had broken any rules. And that you didn’t understand at the time that a loan your repaid could be considered to be unaffordable.
- if you have had debt advice, been in a debt management plan or an IVA, think if any debt adviser ever mentioned affordability complaints. If they didn’t, and your payday loans were just treated the same as your other debts such as credit cards, then say this. After all, if debt experts didn’t tell you about these complaints, how could you be expected to know?
- also say how and when you found out that a lender had a regulatory duty to lend responsibly and check if you could afford to repay the loans. You may have heard about payday loan refunds with the TV coverage after Wonga went into administration in 2018; you may have seen a Facebook advert from a claims company; or a friend told you about irresponsible lending complaints.
There are no wrong answers here, just say what happened to you.
For each case FOS also needs to consider if the lending was irresponsible
Once FOS has decided in a case that it can look at the older loans, the cases need to be looked at to determine if the complaint should be upheld and a refund given. The two published decisions are not decisions that Mr H and Mrs W should get a refund for their over six year loans, they are just decisions that FOS can consider if they should.
So the cases that have been on hold now need to be considered. I hope the lenders and FOS will be trying to ensure that this is done in as speedy a fashion as possible.
What about affordability complaints about other forms of lending?
Although FOS has published these two decisions under the heading of Example payday lending cases, the responsible lending duty also applies much more broadly to other forms of credit.
I can see no reason why similar decisions would not be reached in other cases where there is a lot of repeat borrowing, such as doorstep lending.
UPDATES
- On 15 October the FCA wrote a Dear CEO letter to the payday lenders which said they should take account of these FOS decisions. See Dear Payday Lender CEO – should you start a redress program?
- In October QuickQuid seems to currently be ignoring these decisions. See QuickQuid – misleading customers about loans over 6 years old.
- In February and March 2019 there are some signs of movement in the backlog of QuickQuid cases. QQ has paid out it seems on the original test cases. Several people have been told that FOS has decided their QQ case can be looked at and now it is with an adjudicator.
This is very slow, but FOS and the FCA are presumably hoping that QQ will review a large number of the on-hold cases. - In April more adjudicator decisions started to come from FOS, but QQ has still been rejecting these.
- In April the Wonga administrators decided they would consider all loans for refunds, including those over 6 years.
How to get a payday loan refund
6 challenges for regulators after Wonga
Refunds from Provident or other loans at home?
John says
So say you had accepted the lenders offer even though it didnt included any loans over 6 years, would you now have a fair case with those loans now under this ruling?
Sara (Debt Camel) says
That may depend on the reply the lender sent you.
If it didn’t mention that you had the right to take your complaint to the Ombudsman, then yes, I think you may be able to start a new case.
If it said you did have the right to take the complaint to the ombudsman but it also clearly stated that the Ombudsman would not consider loans over 6 years, it’s possible you might be able to start a new case saying that you were misled by the lender. In this case, could you find the reply from the lender and copy it in here?
sw says
That sounds like positive news then – I hope mine gets sorted soon. Been 25 moths now with QQ.
Sara (Debt Camel) says
it is VERY positive news.
Adam says
I’ve had a Wonga case on hold for a year now. Opened my complaint September 2017.
Details are at around 20 loans over around 5 years – estimated interest around 2.5k.
Two of the loans opening dates fell outside the six year window (Aug 2011), the settlement of them didn’t.
FOS have repeatedly said that they need to consider the timeline but nothing more than that.
I do hope they can come to a decision soon because the likelihood of the full amount is diminishing by the day! Gutted that Wonga went into administration (easy way out perhaps??) but this feels like good news.
Sara (Debt Camel) says
See Wonga refunds – Latest News for any future developments. Although today’s announcement isn’t bad news for you, if the administrators have little money left for unsecured creditors it may not make much difference to what you get :(
Mike says
Morning Sara,
So in simple terms how does this affect individuals like myself who have complaints on hold as they are over the 6 year bracket with Quick Quid? Do you think our complaints will now be addressed?
Thankyou
Sara (Debt Camel) says
Yes! Of course it’s possible QQ will decide to go to court. That seems to me to be unlikely though.
But with so many cases on hold it may take a while.
I think lenders, including QuickQuid, should be learning from previous ombudsman decisions and making better offers in the more clear cut cases. If this happens, and I suspect the FOS and the FCA are encouraging it, then things may speed up.
I have seen a few straws in the wind in the last few weeks that QQ is settling some cases earlier – every case sorted early, will help to speed up the ones where there has to be a full FOS decision.
Chris says
Sounds like good news!
Thanks for the update Sara.
Mike says
What about complaints like mine where there was an argument for looking at loans over 6 years old, but the adjudicator said they couldn’t. I was paid out but it might have been a whole lot more with an extra 3 years interest.
Surely they must look at these cases again?
Sara (Debt Camel) says
Probably not – you could have asked for the case to go to the Ombudsman to be looked at.
mike says
But they said they weren’t looking at loans over 6 years old. The ombudsman I mean also!
Sara (Debt Camel) says
So you had an Ombudsman level decision on this?
Alice says
I did, my wonga case went to the adjudicator and then ombudsman in 2016, he wouldn’t allow the older loans to be looked at for redress but allowed them to be looked at for the history and continuous borrowing. He ruled over 6 years could not be paid out on. Then my pduk and QQ went to adjudicator a few weeks later and he said they couldn’t look at them.
Sara (Debt Camel) says
I am afraid there were some inconsistent decisions being made in the first half of 2016 before FOS decided to put them all on hold. I would be very surprised if any of the cases can be re-opened.
Jaz says
I had a claim on Quick Quid where [a claims company] got me a settlement but it was only for the 7 loans I had after 2011 not the more then 10, some rolled a lot, before. Can I now get another refund?
Sara (Debt Camel) says
Very unlikely. The claims company would have accepted the offer in full settlement of all your claims against the lender.
If you feel you were misled by the claims firm, you could complain to them. This may be another case of the claims firm wanting any money quickly rather than discussing the situation with you and asking what you wanted to do.
Martin W says
Sounds like excellent news that over 6 years loans will possibly be looked at but not so from a FOS resourcing perspective as the process is woefully slow to begin with without adding in all the loans currently on hold. Hopefully they’ll get some more staff or speed up the process somehow. Maybe even the lenders might start reviewing cases properly instead of frivolously rejecting everything. (and pigs might fly obvs!)
Sara (Debt Camel) says
I think the pigs may be having flying lessons…
C says
Great news Sara.
I have declined for those with QQ over 6 years to be considered in the hope it would speed up the process.
However, as the case still isn’t with an adjudicator (sent March 1st) I’m going to call the FOS now to have them included on my case as it’s an extra 4k.
Thanks for the update Sara.
Alice says
Hi, so I had two claims rejected by adjudicator because of the 6 years before they started to put them on hold, am I allowed to ask them to take another look?
Sara (Debt Camel) says
Well you could ask but I would be surprised if they agree, because you could have asked for your case to go to an Ombudsman.
Alice says
Ok thank you, because it was a flat out no in may 2016 ‘no we cannot look at things over 6 years old’ And I did email and ask for it to be reconsidered and got yet another refusal I didn’t know that I could ask for an ombudsman and he didn’t tell me I could. I do have the emails still but I guess it’s my fault for not knowing what I know now. Thank you thou :-)
Mr and Mrs C says
Hoping this is good news for all of us. We currently have a case with FOS for QQ and left in over the 6 years as that was the majority of loans
This is the interest paid over the years:-
2010 £1298.5
2011 £2275
2012 £1580
2013 £2075
Fingers crossed for a good outcome for everyone – especially those of us who will probably lose out with Wonga as we didn’t find out about all this refund lark till March this year :(
TC says
Great news. Even more so considering I contacted QQ this week offering them a reduced settlement if they settle my case early, they rejected it which could end up quite costly for them!
Would I get interest up to the date of the decision or only up to the claim date?
Sara also could you contact the FOS and see if they can give you a time frame on when they expect to catch up on all of these cases? I am wary that if loads of us start bombarding the FOS for updates we may delay the whole process further. Would be much appreciated.
Sara (Debt Camel) says
8% statutory interest is up to the date the refund is calculated, so s few days before being paid.
Bamboozal says
Yeah.
It looks like my previous comments may have worked to hurry things along.
M M says
This is indeed encouraging news. As my last communication with the FOS regarding my 6yr+ claim with QQ is still adjudicator level, do you think I will get an adjudicator decision a bit quicker than the 1500 QQ cases with ombundsman that you have cited? Or is the 1500 inclusive of adjudicator level cases also?
Sara (Debt Camel) says
FOS were asked how many QQ cases were currently on hold because of the 6 year rule, they said (and I am paraphrasing) they didn’t keep records that allowed them to answer that easily but there were about 1500 QQ cases awaiting a ruling on whether FOS has the jurisdiction to look at them. My guess is that your case would have been one of these, but it is a guess. Most cases on hold are either at adjudicator level or pre adjudicator I would have thought.
Ann Reynolds says
Could this mean my mum’s case with provident may make a little progress soon? They delayed loads and finally said they refused to consider as all loans were older than 6 years before the complaint was made. FOS have recently written to say they are working on this point but the case has been with them since November 2017, original complaint made to provident in September 2017
Mike says
Good evening Sara, I contacted FOS regarding my QQ over 6 year loans complaint.WOW……response was..
Unfortunately I cannot give you any timescale or update regarding when your complaint will be assessed. We currently have around 8,000 complaints that were placed on hold while the jurisdiction issue was resolved.
There is a small team working cases such as yours at the moment and the cases are worked in strict age order, so to be fair to our consumer’s the oldest cases will be worked first.
As soon as your case is assigned to an adjudicator to assess your complaint, they will be in touch to introduce themselves. I’m sorry
Can’t update you anymore at this time.
Sara (Debt Camel) says
8000! Many of them will be Wonga cases, and they may soon be removed from the Ombudsman.
Apart from individual cases being worked on, the Ombudsman is also trying to encourage lenders to speed up the process by resolving the, let me say, more obvious complaints more quickly.
Gareth says
I have a case with FO against provident it’s been with them since july/August 2016 (adjudicator not upheld) and waiting for it to get to an ombudsman since October 2016 (due to 6 year rule) been over 2 years so what’s another 6 months lol.
Sara (Debt Camel) says
After so long it’s worth pushing though! Especially as it’s not a payday lender – although exactly the same approach should apply to doorstep loans, FOS has always treated them separately. I suggest you go back to them and say that you want your case to go to an Ombudsman as soon as possible, that you have been waiting for an unreasonable length of time and that you want the Ombudsman to take into account the two decisions on over 6 year payday loans published recently in the FOS’s technical section (give the links) as they seem to you to be directly relevant to your case. If you haven’t already been asked by FOS when and how you heard of affordability complaint, also write out a clear statement about that.
Bill says
Hi Sarah,
Cheque centre, what’s happening with them? I managed to get in tough with an administrator in Scotland, told me by email they will not look at loans over 6 years, most of mine where in 2009, 2010, also said if successful for loans to be upheld they will only pay 5p in the pound in compensation
Sara (Debt Camel) says
You can talk to the Ombudsman, but they are in administration and haven’t been paying out in full for many months :(
TC says
Has anyone had any responses from the FOS regarding these yet?
Rob says
I have a complaint outstanding regarding Quickquid and emailed the FOS shortly after these articles came out to see what progress is being made and potential timelines. The response I received on 27th October was this:
“Thank you for your email.
We’re almost close to be able to give you answer. The decision that you have referred to is a part of the process in us figuring out approach.
Once this is done, your complaint will be allocated to an adjudicator once one becomes available.”
sw says
Let’s hope it is close Rob – mine is now nearly two and a half years with the ombudsman – QQ too.
Robin says
I have a number of loans over 6 years old but it’s proving to be hard to access bank statements from the time to support my case (i haven’t given up yet but so far Barclays maintain they can only send me statements from the previous 6 years – despite it being the same bank account for the whole period)
Does this rule out any complaint i have and how likely is it that Barclays will be able to dig out my old statements?
Thanks
Sara (Debt Camel) says
It doesn’t rule out your case if Barclays will say in writing that they can’t produce them. But I am surprised.
You can win a case at FOS if you can’t produce any bank statements if you borrowed a large number of times. But it’s easier if you can produce as many statements as possible.
Bill says
Hi,
I can back it up, tried with NatWest, Santander and rbs, all say the same…. 6years
david price says
i phoned up Santander a couple of weeks ago and asked for my bank statements from 2009 and 2010 and they sent them to me within a week and never even charged me
Bill says
Hi David, did you hav specific number for the statements from Santander, I have tried several times to get statements from some years as yourself but told only upto 6 years!
Louise says
Hi is anybody getting any further with the over 6 year old loans with Wonga or Quick Quid?..
jen says
Hi Louise I asked my adjudicator I have for PDEXPRESS over 6 yr loans, about both QQ & Wonga over 6 yrs cases they still can’t look because of jurisdiction issues with QQ & Wonga was told they will be in touch if & when but no updates at the moment that was 2 weeks ago, all been with FOS since nov 17
GM says
we’re all in for a long wait. all my complaints are for loans over 6 years old. QQ, PDUK, MyJar and WDA.
Sara (Debt Camel) says
Wonga complaints are being returned to the administrators. See https://debtcamel.co.uk/wonga-administrator-proposals/
Kieran says
Got this response on 21st Nov….
Thank you for your email requesting an update on your complaint and confirmation of the date your complaint was bought to our service.
Your complaint was logged by your representative with us on 2 February 2017.
As we have confirmed previously, we will be in touch when your complaint has been assigned to an adjudicator to assess. We have several thousand complaints that are now waiting to be assessed following the ombudsman decision on jurisdiction, and we are working the oldest cases first and those were the consumer is in severe financial difficulty.
So although there has been progression regarding these cases, I still cannot give you an exact timescale on when your individual complaint will be assessed.
We are aware that this has been a very frustrating time for our consumers waiting for an answer to be reached, and I can only apologise for the time it has taken.
We hope to have an answer for you soon
Cris says
Hi,
I need some guidance. Quick Quid have rejected my complaint because the loans are over 6 years old but until the Wonga issue feature in the news this year I was unaware I could claim. What do I go next to escalate my case? Do you have a template I can use.
Any help is appreciated.
Sara (Debt Camel) says
ok, send the complaint to the Ombudsman. See https://debtcamel.co.uk/payday-loan-refunds/ and make sure you add a paragraph on why you haven’t complained before, see the “FOS will ask people how and when they found out they could complain” section here: https://debtcamel.co.uk/fos-time-limits-payday-loan-refunds/
cris says
Thank you. I will do that straight away.
Grant says
Hi,
I have sent the first template email to qq.
All my loans were more than 7 years ago. QQ are asking for bank statements and pay slips which I do not want to send. Will they still send me all my loan details from just knowing my name? Will I have to send anything to prove who I am?
Thank you for any advice.
Sara (Debt Camel) says
There is no point in sending QQ anything – as your loans are all over 6 years old whatever you send they are going to reject your complaint so you should expect it to have to go to the Financial Ombudsman. At some point this will change! But for now, just ignore requests for bank statements and payslips, but get your bank statements ready for FOS. No need to bother with payslips though.
If you have used the same email address you used 7 years ago, they may just send the loan details – if they don’t after 4 weeks, ask again for them and tell them your full name, date of birth and the name of the email address you may have used when you applied.
Garry says
I’ve had a complaint rejected by QQ as half the loans are over 6 years old. Do you think there’s any point taking a complaint to the Ombudsman Service about these older loans. I believe I only found out I could complain about these within the past year. What are the chances of success of having this jurisdiction matter ruled in my favour?
Sara (Debt Camel) says
Can you say how many loans you had in total and how many were over 6 years old? How much interest did you pay on the older loans and the under 6 year loans?
Garry says
I had about 20 loans with QQ in total. 7 of these were older than 6 years at the time I complained in September 2018. Interest on the first 7 was about £500 and £1,500 for the loans after. What do you think I should do? Thanks for your help.
Sara (Debt Camel) says
Get your complaint into FOS before any more loans fall outside the 6 year period.
It’s good that you have the interest numbers. In a typical case people don’t usually get the first 2,3,4 loans refunded. FOS look at when the lender should have realised from your applications that you were dependent on the loans. It sounds as though your loans also show the typical latter of either increasing in size or the later loans being rolled more often, hence the interest on the later loans is often more than the earlier ones.
As a result, if you decide to give up the earlier loans, but ask FOS to take thm into account when assessing the later loan, you may get a refund for all the later loans. And You may only lose three hundred or do by having the early loans disregarded.
Now 300 isn’t nothing. At the moment older cases are very slow – that could all change and they could all be treated the same. Sorry it’s a difficult decision for you but get your case in ASAP!
Paul says
I’ve just had an adjudicator decision through for a complaint against qq where all of the loans are outside the 6 year period. Found in my favour loans 5-13 complaint was originally submitted to Fos in August 2017. Qq refused to look at the complaint. Doubt they will agree with adjudicator and be sent to an ombudsman but at least there has been some movement. Will keep you posted.
Sara (Debt Camel) says
yes, real movement at last for some people – it will give hope to everyone else.
Kara says
I’ve had similar. Adjudicator found in my favour for loans 4-13 (pretty much all over 6yrs). Gave QQ until 23 April to respond, and they came back on the last day to say they disagreed – largely about the jurisdiction issue, claiming FOS shouldn’t be looking at it. FOS are apparently going to respond with further info about why they can look at it, and they said there’s a chance QQ may relent if they realise the alternative is that an Ombudsman looks at it (and hundreds of others, I imagine). FOS also said they’re trying to handle these cases as quickly as possible.
Rachael says
Hi, I complained to payday uk and QQ last year and they both rejected because my loans were over 6 years ago. This was part of the response from QQ and because of them saying the ombudsman wouldn’t look into anything over 6 years I never referred it to the ombudsman. Could I now complain again to these companies and then refer to fos when they reject them again?
As this is our Final Response regarding your concerns to the above referenced account, if you are not happy with this outcome I need to ensure that you are aware of the ultimate availability of the Financial Ombudsman Service. You have the right to refer your complaint to the Financial Ombudsman Service, free of charge.
The Ombudsman might not be able to consider your complaint if:
• what you’re complaining about happened more than six years ago, and
• you’re complaining more than three years after you realised (or should have realised) that there was a problem.
Sara (Debt Camel) says
what dates were the replies to your complaints last year?
Rachael says
1st and 2nd Aug
Rachael says
Do you think I’ll be able to complain again to the companies because I didn’t take it to the fos within 6 months
Sara (Debt Camel) says
probably not. You could tell FOS you feel their replies were misleading but FOS may not agree, because the lenders did say you could go to FOS,
Mandy says
I have had two replies from lenders stating:
My Decision:
We handle complaints following rules set out by the Financial Conduct Authority (FCA).
One rule is that a customer must complain within 6 years of the problem. Another rule is that if more than 6 have passed, you must
complain within 3 years of knowing you could complain about the problem.
I can see that all of the loans that you are complaining about are more than 6 years old. So for me to consider these loans, I need you
to tell me why you didn’t complain about these loans until now.
Can I ask what other claimants have done in these circumstances please?. Is it worth me going back to them? In my original letter to them 8 weeks ago I stated that I had only recently become aware of my rights to pursue an affordability complaint after being contacted by Wonga 9 weeks ago. I have drafted out a response in which I think this answers the ‘I need you to tell me why you didnt complain about these loans until now’ section of their response. Does anyone have any advice please – greatly appreciated.
Sara (Debt Camel) says
these replies sound like the standard replies Payday UK, Payday Express and the Money shop send out. This article looks at what you could say to them: https://debtcamel.co.uk/refunds-payday-uk-express-money-shop/
tina says
Hi would The Money Shop cheques loans taken out in the branch apply? I used to use them continuously every month between 2005-2008, also is this far too old to complain? I was reliant on the loans for years thanks Tina
Sara (Debt Camel) says
Yes this does apply to the Money Shop’s cheque based lending. But the Financial Ombudsman cannot go back before April 2007.
steve says
Hi Sara
I had a number of settlements back in 2017 and have just received a letter from Myjar offering redress for all loans over 6 years.
This was an unexpected joy, but will the same happen for all companies or should I contact them again?
Thanks Steve
Sara (Debt Camel) says
oh! Did you have a settlement from Myjar before? or a rejection? or had you never contacted them?
steve says
Hi Sara,
They settled on all non ‘time-barred’ loans in 2017.
They have written to say they have reconsidered their position and have increased the offer settlement to include all ‘timed-barred’ loans.
That means I’ve had another unexpected settlement.
I’m writing to other companies who have settled requesting they follow the FOS guidance and settle on ‘timed-barred’ loans as well
Steve
Sara (Debt Camel) says
Thanks – that is very good news! Who are the other lenders you had older debts with?
Steve says
Hi Sara
Payday Uk, QQ and P2P, WDA and Provident
Gina Chidwick says
Hiya I have asked for compensation from qq for irresponsible lending. The loans were from 2010 to 2011 before I went into a debt management plan. My guess is they wont compensate because it’s over 6 years but I’m still paying off this loan in my debt management plan 8 years on. Would I have a case??
Sara (Debt Camel) says
Yes. you definitely do. Well worth a complaint.
Can you say when you started your DMP? and how far away from finishing it you are?
Gina Chidwick says
I started it in 2011 I think I am about a year and half away from finishing it give or take. I kept taking out the payday loans with qq and it was a vicious circle like I say 8 years on I’m still paying it off via my debt management plan.
Sara (Debt Camel) says
ok, well some of the debts in it must be pretty old. You might want to think if they are still enforceable if they have been sold to a debt collector and have dropped off your credit record – read https://debtcamel.co.uk/ask-cca-agreement-for-debt/ to find out how to ask if the debt collector has the right paperwork. If they don’t, you could just stop paying.
Gina Chidwick says
I will have a look. Do you think I could still apply to them for irresponsible lending??
Sara (Debt Camel) says
yes, definitely! That is well worth a complaint.
Chris says
Hi, I had a vehicle loan in 2010 with Advantage and got into difficulties and I settled with them in 2018, in 2019 I sought professional help with my finances and they told me I should consider a complaint against advantage for irresponsible lending. Until this point I was unaware I could, so I did, it eventually went to the FOS, initially they said they thought advantage should have asked more during the application stage and they requested some more documents which I provided. Anyway, yesterday I received an email from FOS saying Advantage want the complaint dismissed on the grounds it’s over 6 years old and the FOS asked why I took so long to report it. I explained the above and that I had only became aware I could in 2019 at which point I submitted one (less that 3 years within 3 years of knowing I could) and the FOS said they will get back to me.
Are the FOS still likely to proceed with the complaint or dismiss it on it being too old? I wasn’t sure if the 3 years just covers payday loans.
Thanks
Sara (Debt Camel) says
The three year complaint covers all FOS cases.
You may have know the laon cause you great difficult over 6 years ago. probably from the start! But that doesn’t mean that you knew the lender had broken the regulator’s rules by not checking it was affordable for you, so you did not know there was anything to complain about. Many people think it’s their own fault that they were in a mess, not the lender’s fault.
Then when you were told you had a reason to complain you did.
FOS normally accept they can look at these older cases. If you are then told FOS won’t look at this, ask for it to go to an Ombudsman for a final decision.
Chris says
Hi Sara,
I got my final response from FOS (below). Basically Advantage in 2010 failed to check my bank statements at the time of lending which would have shown I was living in my overdraft limit every month by -£1600 and my pay was only £1650 a month. I also had two defaults on my file at the time. I ending up borrowing from payday lenders to cover my loan payments which collapsed in 2012 when I could borrow no more. I sought financial advice in 2019, who pointed out this could be irresponsible lending, I didn’t know until this point.
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I understand you said you were unaware you could make a complaint about irresponsible lending, but a customer doesn’t have to know that something has definitely gone wrong – they just ought reasonably to have been aware of cause for complaint for the three-year time limit to start.
When we say cause for complaint, we mean that you had, or ought reasonably to have knowledge of the following:
a problem
that you have suffered a loss
and that someone else is responsible for this problem (and who that someone is)
Having considered what you’ve told me about your circumstances when you took the finance out and in early/mid 2012, I think it’s reasonable to assume you would’ve known there was a problem as you said you were borrowing from payday lenders to make the monthly repayments. I also think this means you were aware that in taking out this agreement you had suffered a loss.
I can see that Advantage asked for copies of your payslips at the time you entered into the agreement, indicating they needed to check you could afford the finance. As this was a relatively large loan and for the hire of a car, I think it would be reasonable for a consumer to think the lender would carry out some sort of checks to ensure the finance was affordable.
While I accept you’ve only recently been told you could complain about the lending decision, I also need to consider whether you ought reasonably to have been aware sooner. I think it was reasonably clear Advantage carried out some checks to ensure the lending was affordable for you. You’ve said you knew from the start of the finance you couldn’t afford it. I therefore think you ought to have been reasonably aware sooner that Advantage’s decision to lend to you had caused you a loss. For this reason, I don’t think the complaint has been brought in time.
I’ve also thought about whether there were any exceptional circumstances that prevented you from complaining in time, but not being aware you could complain isn’t something I can consider as exceptional. As the complaint has been brought too late it isn’t something we have the power to look into.
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Should I ask them to look again or as for a final decision?
Sara (Debt Camel) says
is this from an adjudicator or from an Ombudsman?
Chris says
This is from the adjudicator.
I replied asking for it to goto ombudsman and said I felt initially as it was my fault and didn’t know advantage broke the rules, so didn’t know I could complain.
They just responded with this:
Thank you for your email.
I do appreciate you said you didn’t know there was anything to complaint about but as mentioned a customer doesn’t have to know that something has definitely gone wrong – they just ought reasonably to have been aware of a cause for complaint for the three-year time limit to start. As you’ve told us you struggled with the repayments, I think it’s reasonable to assume you were aware something had gone wrong.
Whilst I do understand the points you have raised, as your complaint has been brought too late it isn’t something we have the power to look into as per the time limits set by The Financial Conduct Authority.
Sara (Debt Camel) says
I suggest you go back and say you were well aware that the loan was causing you hardship but as you did not know the lender should have checked to see if the loan was a ffordable you did not realise the lender had done anything wrong in giving you the loan.
repeat your request for the case to go to an Ombudsman.
Chris says
Thanks, I just responded with that.
The FOS adjudicator stated it was reasonably clear that Advantage carried out some checks but surely, with two defaults on my credit file they should have asked to view bank statements? If they had, they would have seen I was living heavily in my overdraft limit months before I applied.
Sara (Debt Camel) says
I can’t comment on how good Advantage’s affordability assessment was – that has not been properly looked at because the issue here is not affordability but what FOS calls “jurisdiction” – whether FOS has the right to look at a case where the loan was over 6 years old.
mike says
My adjudicator has just decided against me because of this ruling.
How can the FOS keep saying that I should have known something was wrong when I kept borrowing?
Is this +3 year rule worth bothering with?
Sara (Debt Camel) says
who is the lender?
miles says
Looking at the last cases on here, it looks like the FOS is now taking a stance that they aren’t going to look at complaints over 6 years old.
Is it time to update the article as it’s misleading people into thinking they can complain after 6 years when they obviously can’t?
Sara (Debt Camel) says
There hasn’t been a general change.
I suggested those last two people should ask for the decision to go to an Ombudsman.
Mike_p says
Do the FOS look at the 6 year/3 year timeframe matter of course or only when raised by a lender? I have two complaints open at the FOS against Barclaycard and Nationwide, both involving cardlimita that were.last increased in 2014. Barclaycard said they couldn’t consider the complaint in their final response due to the time that had passed, and the investigator is now asking when I became aware I could complain as Barclaycard haven’t given permission for them to look into the complaint. Nationwide on the other hand responded to all the points I’d made in my complaint and made no mention at all of the time that had passed.
Sara (Debt Camel) says
If the lender doesn’t object to FOS looking at older events, FOS will normally look at them. It sounds as though Nationwide didn’t and Barclays did.