I believe I made one of the first complaints to the Financial Ombudsman Service in November 2021 about Creation’s blocking of Curve in September 2021. Subsequently in September 2022, the FOS initial investigator failed to properly read several key points in my complaint, and also made procedural errors for which the FOS paid me £75 compensation. I didn’t accept the initial investigator’s flawed decision, so it was escalated to an ombudsman.
An ombudsman made a final decision in my complaint in February 2023. A key point of my complaint was that nothing in Creation’s terms and conditions allowed it to block a specific merchant such as Curve. After defining Curve as “A”, the ombudsman wrote as follows:
And Creation’s terms and conditions say at section 5.5: “… You may instruct a Third Party Provider (TPP) to access information on your Account or make certain transactions from your online Account….We will treat any instruction received from a TPP as if it was from you and the terms and conditions of this agreement will continue to apply…… We may refuse to allow a TPP to access your Account if we reasonably suspect fraudulent or unauthorised activity on their part. We will tell you before we do this unless it is impractical to do so or unlawful.” Therefore – Creation were entitled to stop using A if they wished in line with its terms, and these also say they would advise customers - which I’m satisfied they did.
So the ombudsman perversely believes that Curve, rather than being a merchant from Creation’s perspective, was a Third Party Provider who accessed the customer’s online Creation account. A scenario of a “Third Party Provider” includes most commonly open banking, whereby a third party has direct access to one’s account transactions and balances etc. This is a very sloppy failure by the ombudsman to understand the facts about Curve and to understand Creation’s terms and conditions. As a result, the ombudsman did not uphold my complaint. I will provide a link to the ombudsman’s decision as soon as it is published on the FOS web site.
Therefore any of you with open FOS complaints about Creation’s blocking of Curve should write to the Financial Ombudsman Service as follows:
The most significant part of my complaint is that Creation blocked Curve as a merchant despite nothing in Creation’s terms and conditions allowing it to do so. To this end, I wish to clarify that, from Creation’s perspective, Curve is only a merchant. For the avoidance of doubt, Curve is not a “Third Party Provider” as defined by section 5.5 of Creation’s terms and conditions, given that Curve did not “access information on your Account or make certain transactions from your online Account”. Section 5.5 is about open banking, not about the ability of a merchant to charge a payment card. Curve had no access to my Creation account. Curve only processed transactions to my Creation card just like any other merchant such as a supermarket or restaurant. Curve had no online access to my Creation account at all, online or offline.
That’s such a sloppy error by the Ombudsman. I believe such a fundamental error would be grounds for a judicial review, but of course who has the time & money to do this?
It’s not the first time I’ve experienced sloppy errors by the Financial Ombudsman Service. It happens a lot with initial investigators, but also with an ombudsman’s final decision too. They do seem to take more care with large amounts though. For example, I had a final decision on another complaint last year, which exceeded the upper threshold on which an FOS decision is legally binding, and the decision was fair, legally well-reasoned and in my favour.
Do Amex or Curve have anything in their terms and conditions that allow them to block specific merchants?
Unfortunately Creation do not define what a TPP is, even if we suspect the intent of the drafting. Curve are definitely a third party, and making transactions on your account.
No, Curve does not "make certain transactions from your online Account”. One’s online (Creation) account means Creation’s web site or app or other online facility. If the definition of a Third Party Provider was that broad, then it would mean that every merchant is a TPP, which is plainly not the intended meaning.
Furthermore, Creation’s terms and conditions cannot be interpreted in Creation’s favour, because the legal doctrine of contra proferentem causes any ambiguity or multiple potential meanings to be be interpreted always against the author.
If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
Bingo! We really need signatures in this forum… I was going to pre-empt your response, but didn’t think it would come up in this thread as I’m not sure how it can be said that forcing Creation to authorise transactions when they suspect fraud or unauthorised behaviour is the most favourable outcome for the consumer.
Creation don’t also define what an online account is, and you’re not going to get far saying that Curve’s transactions are offline.
Of course we can see this is all a stretch, but equally I can see this failing if taken to a judicial review. It is definitely an oversight in the drafting if Creation really can’t prevent transactions they suspect to be fraudulent from taking place.
Creation can block fraudulent transactions, but while doing so, it blocks many more genuine transactions. Instead of blocking a bona fide merchant (Curve) entirely, Creation could have blocked specific MCCs that it perceived as open to fraud. For example Curve blocks MCC 6051. Why doesn’t Creation block specific MCCs?
If the definition of a Third Party Provider is as broad as you suggest, then it would mean that every merchant is a TPP, which is plainly not the intended meaning.
I know where you are coming from, and that’s likely where the judicator got confused, but any intelligent reading of the language of the T&C is that Curve is not a “Third Party Provider”.
Creation don’t also define what an online account is, and you’re not going to get far saying that Curve’s transactions are offline.
We do not instruct Curve make certain transactions “from your online account”.
The language of the T&Cs is not “make certain (online or offline) transactions to your Account”, it’s “make certain transactions to your online account”. Note that while “Account” is a defined term, “online account” is not, but you see from the drafting that “online account” is clearly distinct from “Account” which is a defined term.
In addition, other parts of clause 5.5 indicates that it would not apply to a merchant. You can see that one of the clarifying clauses for a TPP is:
“If you wish to use a TPP you should check if they are authorised. TPP may not be authorised under Channel Island and Isle of Man local law.”
Merchants are do not need to be authorised. Also, if TPP were to apply to merchants, then the plain language of 5.5 means that you would not be able to use a merchant that’s “authorised” in the Channel Islands. Yet the card is accepted by merchants in the Channel Islands.
Of course it’s not when you read it with intelligence, but if you read the hot mess of the T&Cs straight - what is Curve, and how is it authorised? - merchant isn’t defined, and Creation say you can you use it only at an “outlet”, “ATM”, or “website operator”.
If a merchant isn’t a TPP, I’m not sure I can see how (according to the T&Cs) Creation can stop any transaction they don’t like, for example a magswipe in South Sudan at mobile phone outlet, which is perverse.
Maybe we would have been happier if Creation cancelled their user accounts because Curve wasn’t a ‘website operator’ and therefore not permitted
It takes a smarter person than any one of us to understand the reasoning or logic behind most of Creation’s decisions I’m not trying to defend the company, I was just considering an alternative to things that appear obvious at face value. I’m not sure how Creation are able to block fraudulent transactions at all under their T&Cs!
Is Curve a bona fide merchant from Creation’s perspective? I would have thought that if this were the case, you’d see the £2bn spent via Curve as cashflow coming in to the business (and associated £2bn going out to the real vendors) - but it’s not in their accounts. Hopefully we have an FRS 102 expert who can contribute here and add a correction!
I’m not sure how Creation are able to block fraudulent transactions at all under their T&Cs!
T&Cs do not replace or supercede their statutory and regulatory obligations. They do not need to enumerate how they deal with fraudulent transactions because blocking fraudulent transactions is an obligation as part of their authorisation with the FCA.
In response to complaints to the Financial Ombudsman Service, Creation made settlement offers last week.
My complaint was not only about the account closure (non-transferred points, refund of annual fee and lack of anniversary night voucher), but also several unrelated customer service failures by Creation.
The FOS and Creation decided at an early stage to split my complaint into two complaints, despite this incurring two separate £750 case fees for Creation.
The first separated complaint was about Creation’s blocking of Curve, in particular Creation’s failure to notify customers by a durable medium (only an SMS with a 7-day expiry if undelivered) and that there is nothing in Curve T&Cs allowing it to block a specific merchant such as Curve, as discussed above.
The second separated complaint was about the account closure as well as several unrelated customer service failures by Creation. I likewise received the settlement offer last week, but I immediately rejected it because it did not address the unrelated customer service failures.
I believe that the FOS and Creation had intended to leave only the account closure in the second separated complaint. If this had been done, then I might have been able to accept yesterday’s offer. I believe the initial investigator probably split my original complaint incorrectly in addition to other errors for which I received the £75 compensation from the FOS.
Interesting to see a credit card blogger getting involved in the spat, great he could bring his weight in to the fight (and noticeable that Creation is not one of the companies that pays him, possibly an expensive mistake on their behalf!)
We really need signatures in this forum… I was going to pre-empt your response, but didn’t think it would come up in this thread as I’m not sure how it can be said that forcing Creation to authorise transactions when they suspect fraud or unauthorised behaviour is the most favourable outcome for the consumer.