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Who’s afraid of the FOS?

This article explores the role of the Financial Ombudsman Service where individuals have found themselves the victim of an authorised push payment.

Who are the Financial Ombudsman Service (FOS)?

The FOS is a free service, funded by banks and other businesses, whose purpose is to settle complaints between consumers, and businesses that provide financial services. It was set up by Parliament in 2001 and is contacted by over 1 million people each year to assist with a variety of financial complaints. Their role is to make independent and fair decisions based on the facts of each complaint.

This article focuses mainly on banks and explores how the FOS can help you if you have been the victim of an authorised push payment fraud.

What is an Authorised Push Payment?

APP (authorised push payment) fraud occurs when someone is tricked into sending money to a fraudster posing as a genuine payee. There are many ways a fraudster will seek to do this, for example through intercepting emails, posing as a genuine business, sending links to fake websites via email or text message and cold calling.

According to UK Finance, APP fraud has, for the first time, surpassed card fraud with £355 million in losses attributed to APP fraud in the first half of 2021.1 APP fraud can catch out even the most savvy among us as a result of the sophisticated nature of the scams. People can lose their life savings in a matter of seconds and find themselves with serious financial, legal and mental health issues as a result.

How can the FOS help?

The FOS are an impartial service that seek to resolve disputes fairly and impartially and have the power to ‘put things right’. They are able to order your bank to compensate you for any money that you have lost through an APP scam where your bank has refused to reimburse you.

There is, however, a cap on the compensation that the FOS can order and this is currently set at £415,000.

Why would my bank refuse to reimburse?

In the UK, we saw the introduction of the Contingent Reimbursement Model (“CRM”) Code which came into force in May 2019 which seeks to protect victims of APP fraud. The CRM Code is a voluntary scheme which sets standards and details when reimbursement should be made to customers by those banks that have signed up – the majority of high street banks are signatories.

However, in our experience of advising victims of APP fraud, the CRM Code is not applied consistently by banks and there is tendency by the banks to rely too heavily on the exceptions within the CRM to avoid repayment. Often victims of APP fraud can find themselves being challenged as to whether they have ignored an effective warning or they are accused of gross negligence, which is not the intended starting point of the CRM Code.

If your bank has refused to reimburse then you can complain to the FOS to seek review of this refusal and request repayment of the stolen funds.

How do I complain to the FOS?

Once you have received a ‘deadlock’ letter from your bank you have 6 months from the date of this letter to raise a complaint to the FOS. You may also raise a complaint if you have received no response to your complaint letter from your bank within 8 weeks.
You can either write to the FOS or file a complaint through the online portal.

Top 5 tips for raising a complaint with the FOS

  1. Document Management. Make sure that you keep a record of all your interactions with the fraudster as well as your bank. This can include screenshots, details of phone calls, letters and email correspondence.
  2. Deal with the events in chronological order. When writing your complaint start at the beginning and run though the events chronologically. Make sure that it is easily understandable by person who does not know any of the detail. Can you get a trusted friend or family member to read it to give any insight from an outsider’s perspective?
  3. Do not be afraid of the detail. Give a high-level overview at the start as to what has happened but then do not be afraid to give specific details as to how the fraud was perpetrated as something that you may deem insignificant my have an impact on the outcome of your complaint.
  4. Explain why your bank is wrong in their decision. Often in deadlock letters banks will explain why they have refused to reimburse. Tackle this head on and give reasoning why this verdict is wrong.
  5. Consider the law. Are you able to establish what other regulations and contractual or statutory duties may apply to your case and can you include these to add weight to your complaint? You can also consider guidance and standards, codes of practice and good industry practice at the time.

In order to make a complaint to the FOS, it is not a prerequisite to have legal advice, but we tend to find that people utilise our services to ensure the best chance of recovery of their losses.

The Future

In relation to APP fraud, the Payment Systems Regulator (“PSR”) has identified that APP fraud continues to be a significant source of loss for customers. The PSR has identified further measures that should be put in place to protect customers from APP scams. Amongst other things, they have that there should be mandatory reimbursement for victims with only very limited exceptions and that this reimbursement should be made no more that 48 hours from the fraud being reported. It is recommended that there be a minimum claim threshold of £100 claim, a £35 fixed excess fee and a time limit of 13 months to present a claim.

Key Takeaways

With the proposed changes from the PSR on the horizon it is hoped that there will be fewer refusals from banks to reimburse and as such fewer complaints making their way to the FOS. However, in the interim do not be afraid of seeking to hold your bank to account in circumstances where you feel that reimbursement is fair and reasonable.

Author: Rebecca Craig

Should you require advice regarding this or any other financial crime matters, please do not hesitate to get in touch at hello@tenetlaw.co.uk

1 UK Finance

Published on May 9, 2023

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