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ombudsman news

issue 68

March / April 2008

a selection of recent banking case studies

issue 68 index of case studies

  • 68/1- bank alters its record of customer's details to show a false name and occupation
  • 68/2 - consumer held liable for disputed debit card transactions
  • 68/3 - consumer complains that bank failed to take proper care of a safe deposit box - from which jewellery went missing
  • 68/4 - directors of a small business complain that they were wrongly advised by their bank to continue trading, despite serious financial difficulties
  • 68/5 - consumer held liable for disputed transactions made with her debit card
  • 68/6 - consumer lost money because of the bank's mistake in the way it set up his savings account

68/01
bank alters its record of customer's details to show a false name and occupation

Mr K, who had a current account and a credit card account with his bank, was very surprised to receive a credit card statement with the wrong name on it. The statement was clearly his, as the account number and all the transaction details were correct. However, the name on the statement appeared to have been made up and not a genuine name at all.

After making a number of phone calls to the bank, Mr K was eventually told that the name change had come about because of a "systems error". The bank sent him a cheque for £25 for his out-of-pocket expenses in having to pursue the matter. Although the name on the cheque was closer to his own name than the name on the statement had been - it was still not right.

Given this further error, Mr K remained most concerned about what was happening on his account. When he pursued the matter further, he discovered that the bank's record of his occupation stated that he was a "professional shoplifter". Mr K then brought his complaint to us.

complaint upheld
It soon became clear that the alterations to Mr K's details on his credit card account had not come about as a result of a systems error, as the bank had told him. The changes had been made deliberately, by a member of the bank's staff.

The bank had compounded the problem by failing to get Mr K's name right when it sent him a cheque. It had also taken several months to amend his name on his credit reference history. The overall effect of all this was that Mr K was caused a significant degree of distress and inconvenience. We said the bank should pay him £500 compensation for this.

68/02
consumer held liable for disputed debit card transactions

Acting as executor of his late wife's estate, Mr M contacted the bank about a number of disputed cash machine withdrawals that had been made from his late wife's savings account.

The withdrawals, totalling over £6,000, had been made with the card that had been issued on the account. And the transactions had all taken place during the two-month period when Mrs M had been seriously ill in hospital, following a stroke.

Mr and Mrs M's grandson, Mr J, had subsequently been convicted for the theft of the money. Mr J no longer had the money, so it was not possible to recover it from him. And the bank refused to refund Mrs M's account as it considered she must have been "grossly negligent in her care of the card and PIN".

complaint upheld
Mr M did not dispute that his grandson had made the withdrawals. The circumstances in which Mr J had obtained the card and PIN were distressing and unusual. He had arrived at his grandparents' home shortly after Mrs M had a stroke. He had then stolen the card and PIN notification while Mr M was preoccupied with attending to his wife and waiting for the ambulance to take her to hospital.

The bank said that, under the terms and conditions of the account, Mrs M was liable for the withdrawals if she had failed to act with reasonable care. In its view, by keeping her card together with the PIN notification she had failed to act with reasonable care.

However, under the Banking Code a customer's liability is limited unless they acted fraudulently or with gross negligence. Clearly, there was no suggestion that Mrs M had acted fraudulently. So the issue we had to decide was whether, in keeping a note of her PIN with the card, Mrs M had been grossly negligent.

Except when Mrs M took her card out of the house in order to withdraw cash, she had always kept it, together with the PIN notification, in a small box. This was hidden in a small cabinet in an upstairs room of the house. The card and PIN would not, therefore, have been accessible to any casual visitor.

It was reasonable to conclude that Mr J had only discovered the whereabouts of the card and PIN because, over time, he had been able to search through the house while visiting his grandparents.

In all the circumstances, we did not consider Mrs M could fairly be said to have acted with gross negligence. We upheld the complaint and said that Mrs M's estate should be compensated by the bank re-working her account (including interest) as though the disputed withdrawals had never been made.

68/03
consumer complains that bank failed to take proper care of a safe deposit box - from which jewellery went missing

As executor of her late mother's will, Miss J contacted the bank about the safe deposit box in which she said her mother had kept a large amount of jewellery.

At first, the bank was unable to locate the box at all. Eventually, the box turned up. But when Miss J examined the contents she said that 30 individual pieces of jewellery - with a combined value of over £48,000 - were missing.

Miss J then made a formal complaint to the bank, enclosing a hand-written list that she said was evidence of the jewellery's existence. She said her mother had drawn up the list and attached it to her will, as she had intended Miss J to inherit all the items on the list.

Miss J also sent the bank a statement from her friend, Mr M. He confirmed that he had seen at least 30 items of jewellery in the safe deposit box when he had accompanied Miss J and her mother on a visit to the bank some eighteen months earlier.

Dissatisfied with the bank's response to her complaint, Miss J came to us.

complaint upheld in part
Miss J told us she was aware that a significant amount of building work had been taking taken place at the branch where the safe deposit box was stored. And unsupervised contractors had been working in the secure area where the box had been kept. She said she was also aware that several members of staff had left the branch, and she believed that at least one of them had been dismissed for mis-conduct.

It was clear from our investigations that the bank had not taken proper care of the safe deposit box. The box had been moved at some stage, probably during the building work, and the bank had been unable to locate it when Miss J first asked to have access to it. When the box was eventually found, it had been inside another box but not in the secure area.

However, we noted that when the box was located, the seals on it had been intact. Miss J said she was sure it would have been possible for someone to ease the seals slightly and create a very small opening. We agreed that was a possibility. But it seemed extremely unlikely that even the smallest item of jewellery could have been removed from such an opening.

A number of items were still in the box, including several very valuable rings. It was unclear why they would have been overlooked by any thief who had managed to gain access to the box.

The hand-written list was the only evidence that the items of jewellery - now allegedly stolen - had ever existed. None of the jewellery was mentioned in Mrs J's will, there was no inventory or valuation and the jewellery had never been insured.

We noted several inconsistencies in Miss J's account of events. In particular, she gave us contradictory information about the dates when she had last had access to the box - and whether she had signed for it. And Mr M's account of his visit to the bank differed in several essentials from Miss J's account of that same occasion. Mr M later wrote to us to say that, on reflection, he thought the visit might well have taken place some months later than the date he had given originally.

Overall, we were not satisfied that Miss J's recollections were as accurate as she believed. Because of the lack of evidence about what had actually been in the box, we could not fairly say that the bank should pay Miss J's claim for the items she said were missing. But we accepted that she had been caused considerable upset and inconvenience by the bank's failure to look after the box properly. We said it should pay her compensation of £500 for this.

68/04
directors of a small business complain that they were wrongly advised by their bank to continue trading, despite serious financial difficulties

Mr and Mrs L were directors of V Ltd, a company that eventually went into liquidation. When the company was set up, the couple had given personal guarantees, limited to £100,000 plus interest, in respect of the company's debts to the bank.

After the liquidation, the company still owed the bank more than £100,000. When the bank sought to recover the money by calling on the guarantees, Mr and Mrs L argued that they should not be required to pay the bank anything. They said that if the bank had given them better advice, they would have ceased trading much earlier, when V Ltd still had sufficient assets to repay all its debts in full.

complaint not upheld
Mr and Mrs L brought their complaint to us in their capacity as guarantors. They said they had contacted the bank when V Ltd was experiencing significant financial difficulties. They had expected the bank to put the company into liquidation. Instead, it had "encouraged" them to continue trading by suggesting a debt-factoring arrangement.

After looking into the details of the dispute, and examining the records made at the time, we were unable to conclude that the bank had advised or encouraged Mr and Mrs L to continue trading. Rather, it had offered to provide cash flow assistance (by means of the debt-factoring arrangement) if Mr and Mrs L decided to try and keep trading. The couple had decided to go ahead with the arrangement, but unfortunately the company failed just over a year later.

We did not agree with Mr and Mrs L that the bank's offer of assistance was, of itself, encouragement or advice to keep trading. We were also unable to accept the couple's view that the bank had the primary responsibility for deciding whether or not the company should continue trading. We agreed that, in some circumstances, insolvency proceedings are initiated by a creditor. But we said that, as the directors of V Ltd, the couple themselves had a clear duty to take responsibility for such matters.

We noted that the company's accountant had told Mr and Mrs L to continue in business only if they were satisfied they had sufficient liquidity to trade out of the difficulties the company was experiencing. Having been offered assistance with liquidity by the bank, it was then up to the couple to decide whether they thought the offer was likely to prove effective, or whether they should cease trading at that point.

After examining the company's accounts we thought it doubtful that the creditors could all have been repaid in full, as the couple maintained, if V Ltd had ceased trading rather than using the debt-factoring arrangement. And we were not satisfied that it would have been possible for Mr and Mrs L to avoid having a call on their guarantee, even if the decision to put the company into liquidation had been made much sooner. We did not uphold their complaint.

68/05
consumer held liable for disputed transactions made with her debit card

Mrs W contacted her bank to complain that, over a three-month period, £9,600 had been withdrawn from her account without her knowledge. The withdrawals had all been made from cash machines, using her debit card and PIN. She did not consider that she should be liable for the transactions and she thought that the bank should have done more to prevent them taking place.

According to Mrs W, her debit card had been taken from her by a Mr C, who had made the disputed withdrawals without her permission and had then refused to give the card back. She said she often suffered from periods of depression and that, during these periods, Mr C "exercised control" over her. She assumed that he must have obtained her PIN by watching her use the card.

complaint not upheld
We examined the audit trails for the cash withdrawals made from Mrs W's account during the period in question. These showed that all the withdrawals had been made with Mrs W's genuine card and associated PIN.

It was difficult, from what Mrs W was prepared to tell us, to get to the bottom of exactly how Mr C had obtained Mrs W's debit card in the first place - or why she had not reported this to the bank right away. We also noted that the disputed transactions were interspersed with undisputed transactions, made by Mrs W herself. This did not seem to tie in with her statement that Mr C had refused to give her back the card.

Mrs W had eventually reported her card to the bank as "lost or stolen", but not until some time after all the disputed withdrawals had been made. Mr C had told the bank that Mrs W had allowed him to use the card and had given him the PIN. But because Mr C was not a party to the complaint, we had no power to question him about that.

After looking carefully at all the evidence, we accepted that Mrs W had not actually made the disputed withdrawals herself.

However, we were unable to conclude that she had not in any way authorised them. We could not fairly say that the bank should be liable for the transactions, and we did not uphold the complaint. However, we reminded Mrs W that our consideration of her complaint did not affect her right to take the matter to court - where witnesses such as Mr C could be compelled to give evidence.

68/06
consumer lost money because of the bank's mistake in the way it set up his savings account

After selling his house, Mr G transferred the proceeds from the current account he held in his sole name to a savings account that he asked the bank to open for him and his sister, Mrs Y.

Mr G had previously been bullied and intimidated by a Mr D, who had - over time - persuaded Mr G to pay him substantial amounts of money. It was to try and prevent a recurrence of this situation that Mr G and his sister asked for the savings account to be set up so that both of them had to sign for all withdrawals.

Unfortunately, however, the bank ignored these instructions. Mr G and his sister were each able to withdraw money from the account using just their own signature. And in less than a year, Mr G had withdrawn and paid over to Mr D some £11,000. In Mrs Y's view, this had only been possible because of the bank's error. The bank disagreed so, together with her brother, she complained to us.

complaint upheld
It was not in dispute that the bank should have set up the account so that both Mrs Y and Mr G had to sign for any withdrawals. However, the bank said that the money in the account belonged to Mr G and he was entitled to pay it over if he wanted to - which is exactly what he had done.

We did not agree that the position was as simple as that. Mrs Y was adamant that they had told the bank, at the outset, exactly why it was so important that both of them had to sign for any withdrawals. We were satisfied, in the circumstances, that the bank should have understood the significance of the request.

A police crime report, spanning the relevant time period, confirmed that Mr G had again been bullied and intimidated by Mr D and had given him the money withdrawn from the savings account.

So although the bank had been correct in noting that Mr G had made the withdrawals himself, he had received no benefit from the money. He had felt obliged to take it out of the account because he was being preyed upon by Mr D - the very situation that he had hoped to avoid by opening the joint account with his sister.

We said the bank should re-work the savings account as though the disputed withdrawals had not been made (including making good the interest paid on the account). We also said the bank should pay Mrs Y and Mr G £500 as compensation for the distress and inconvenience caused by the error.

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ombudsman news issue 68 [PDF format]

ombudsman news gives general information on the position at the date of publication. It is not a definitive statement of the law, our approach or our procedure.

The illustrative case studies are based broadly on real-life cases, but are not precedents. Individual cases are decided on their own facts.