Erudio Student Loans Continued

[halfpricedebt]

Started a new thread following mrsbug's request.

I got an email from Erudio today telling me that an issue I raised with them on 27 March that was then completely ignored even though they asked for confirmation of my details to process the initial email. I gave them the details they requested and seven days later I still hadn't heard anything. So I wrote them a rather threatening complaint telling them if they didn't respond within 7 days I would report them to the relevant financial services. That was on 3 April and today they've told me that my complaint has been forwarded to their Customer Resolutions Team.

I wonder what they do?

Above ^ is @Qubit

If Erudio are starting to reply to complaints saying that accounts are now in arrears as they put the accounts on hold, it starts to make sense why they treated some PPs letters as complaints, even if they didn't actually ever make a complaint - as soon as they can put you in arrears they can do whatever they like presumably - including the cancelling of the loans at 50 maybe?

The lies about accounts being on hold are just grounds for another complaint to add to the one you are already going to take to the FOS. Erudio are just digging their hole deeper in the end.

@mandakl

Their reply was basically thus (my complaint questioned the legality of passing info to CRAs on pre 98 loans):

"Erudio considers that the reporting of accounts to credit reference agencies (CRAs) is in accordance with section 16 (Disclosure of Information) of loan credit agreements issued before 1998."

Which is pretty much what I expected. Im not sure how much mileage there is in me complaining to the FOS on that matter. I will take some time to consider where I go from here (if anywhere). Ideally I think I would need a lawyer to look at the wording. (any lawyers around these parts with outstanding loans?? Thought not! :))

@ mandakl Wasn't sure on the point I was trying to make tbh, but think I know where I'm going with it now!

So is it right to say that the SLC didn't issue a privacy notice, or fair processing notice, when they owned our loans? Is s.16 of the loan agreement the only document that covers disclosure of data?

@Qubit

If that is all it was about, then I think it's doubtful there is much mileage either.

The FOS isn't going to make a ruling on a matter of law. Erudio say it is OK. BIS say it is OK. If you believe both, then the ICO says it is OK as well.

The FOS are with almost 100% certainty going to go with that consensus.

I am sending another compliant, about my complaint and to insist on another freeze on my account. Writing a substantial letter to the ombudsmen tonight, and to the select comity. Have also contacted the Guradian about it too.

@ mandakl The FOS will make rulings on matters of law, it's within their remit to adjudicate on disputes over contract terms, which is effectively what the DPA issue comes down to.

The DD issue is mainly a dispute over contract terms too and one that the FOS should take on, along with any Customer Service issues, but I think they would refer the DPA part of the complaint to the ICO. So it probably means making a separate complaint to each of them.

On the DPA issue - I've had a look at the ICO's guide to Data Protection, copy here:

ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protection/Practical_application/the_guide_to_data_protection.pdf

It's a requirement of the DPA's fair processing provisions that we're told how an organisation will use our data and who it will be shared with or disclosed to, usually done through a privacy notice or FPN (pages 5-6/130).

S.16 of the loan agreement is not the same as a privacy notice, it's a general term and the only thing we agreed to by signing the agreement is that the SLC may disclose our data, subject to the provisions of the DPA. This is not the same thing as consenting to our information being disclosed, because we haven't been told how the data will be used, or who it will be disclosed to.

If the SLC never issued a privacy notice, then they've been in breach of the DPA all along, and any disclosure of data has not been subject to the provisions of the DPA, so it would be a breach of the loan agreement too (if they disclosed the data).

The guidance also says (p6/130):

"Can I use personal data for a new purpose, or disclose it to a third party?

If you intend to make a significant change to what you do with personal data, you will usually need to get your customers’ consent.

Individuals should generally be able to choose whether or not their personal data is disclosed to another organisation, unless one of the Act’s specific exemptions applies. If you did not make your intention to disclose information to a third party absolutely clear at the outset, at a time when the individual could choose not to proceed, then you will usually need to get the individual’s consent before making such disclosures".

When the SLC started reporting defaults to the CRA's in 2009, this was obviously a significant change to what they do with personal data - I'm assuming they didn't get the customers' consent before doing it - however one of the circumstances where exemption to the DPA provisions applies is "where disclosure is required by law or is necessary for legal proceedings", so that's their get out clause. However, Erudio wanting to disclose our deferred loan data is another significant change, so they need our consent, and the exemption above wouldn't apply to deferred loans.

Also, I don't think s.16 makes it crystal clear it was the SLC's intention to disclose info to a third party, only that they might (subject to the DPA provisions).

Haven't got time to get any further through the guidance just now, but pages 97-99/130 cover consent - there's also more ICO guidance on data sharing here, which might be helpful when looking at whether Erudio sharing the data is justified:

ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protection/Detailed_specialist_guides/data_sharing_code_of_practice.ashx

@ erudioed Your point re Zach Lewy saying they have to give data to get data back - doesn't the fact that Erudio are already performing credit searches to verify information (without having shared any of our loan data) blow that argument out of the water?

If you think you have a case then the next step is.

ico.org.uk/concerns/handling/report_your_concern

I may as well say now though that I've already seen the result of one such complaint to the ICO, and they quite adamantly insisted that s16 of the older loan agreements was sufficient for Erudio to report defaults, payment history and deferment status if the CRA had the facility for that.

If you can get the ICO to cough up a different response, then great.

I don't want to raise a concern though! Even if I did, I need a full and final response from Erudio first and that's a long way off for me.

ico.org.uk/concerns/handling

I assumed the ICO had a formal complaints process similar to the ombudsman - if they don't, then the DPA complaint has to go to the FOS.

I wouldn't discourage anyone progressing a complaint based on a decision given to one individual - if the ICO works anything like the ombudsman, then it will depend on how you argue your case and the evidence you provide to support it. Even when the grounds for complaint are identical, different adjudicators can give different decisions. I've also seen the same adjudicator uphold one complaint and reject another - same breach of t&c's - just argued differently by the two complainants.

So yes, I will let the ICO know of my "concerns" when the time comes, but I'll also include it in my complaint to the FOS, on the assumption that the ICO will do sweet f.a. about it.

The ICO are not as strict or rigid on time-scales as the FOS. In many cases where the policy of a company is public they will accept a complaint without any need.

Up to you, but the FOS is likely to just take the opinion of Erudio and especially BIS as read. The best chance is to get an ICO complaint in on Erudio's public policy on this, and hope that produces a positive result. If it does then that can be used to support any case with the FOS.

ICO - About Us

"The Information Commissioner is appointed by the Queen and reports directly to Parliament"

On that basis, don't think I'll bother my arse contacting them at all.

X post. If the FOS is independent like the other ombudsman services, they won't take anyone's opinion as read, but will weigh up the facts and evidence from both sides.

I've only used the ombudsman twice (not FOS but don't see why it should be any different - unless they report to Parliament too!), both times I felt they were impartial and I have faith in the process based on those experiences.

The regulators are a different story.

Following on in the same-ish vein -

Has anyone made a Subject Access Request yet?

Not that I got any reply to my original loan agreement request! :)

Yes, but the FOS are not there to adjudicate on points of law. They look at the facts and opinions as present by both sides and decide which they think is most likely. Where both BIS and the ICO are of the opinion that reporting under s16 is OK, then it would be quite unlikely they would go against that.

Who know thoughs. I have seen some truly whacko and absurd decisions from the FOS over the years, so anything is possible.

Good luck though. I was just trying to say don't pin all your hopes on one process.

@Sarebear78

I did one to SLC years and years ago, but I presume you mean to Erudio?

I've just gotten off the phone to Erudio after receiving yet another 'incomplete information' letter. This time, I was sat at my PC with the Education (Student Loans) Act on-screen and threw it at them, stating that I had provided evidence beyond all reasonable doubt as to my income being below the repayment threshold. I was told my deferment had ended on 25 May and had moved out of 'incomplete' status to now being in arrears.

I explained that I had previously been advised by a Team Leader (gave name, date & time of call) to cancel the DD and that as all financial information had been supplied as required prior to the end of the current deferment period, any attempt to record a default against my account, notify the CRAs, or impose charges for the same would result in civil action for a breach of contract.

Not surprisingly, I was put on hold for 10 minutes, and when the Team Manager came back on line, informed me that they would look again at my application, and would be 'rolling back' my application date to the date they originally received my information.

Now it's a matter of waiting for the formal deferment acceptance letter to arrive

On the Direct Debit issue. I contacted my bank to cancel the mandate and asked the agent there if it was possible for a company to set up a new instruction on a previously signed mandate.

They confirmed that they can if they submit a new mandate reference number with the new request, so just cancelling the instruction that is on your account isn't enough.

I was then told that the bank could put a blanket ban on all payment instructions coming from a specific originator, so no matter what Erudio try, they now cannot claim any payment without me contacting the bank to lift the block first ;)

@minimoosh: They can pay for a credit search or make a deal to search for free if they wish, that is unfortunately normal procedure for such vultures but if that deal involves passing over or registering our info to get such a priveledge, that is where i feel something a little out of the ordinary has taken place. I dont know what the deal arrow made with experian was though so i am just raising a question.

Just looked at the link you posted for the data sharing code of practice. I only had a quick look thus far but i found this on page 33:

"Misleading individuals about whether you intend to share their
information. For example, not telling individuals you intend to
share their personal data because you think they may object."
If one takes the sentence "Misleading individuals about whether you intend to share their information", does saying they wont over the phone, then saying they will, then Lewy saying they will, and their later FAQs saying might/maybe (about pre-1998 loans) not count as misleading. If it does, such a thing "could lead to regulatory action"!

@ mandakl

"Yes, but the FOS are not there to adjudicate on points of law..."

I disagree. The last claim I had was for breach of contract, and that the contract term was ambiguous and therefore unenforceable. The adjudicator obviously has to rely on the UTCCR's and other contract law in a case like that, to reach a decision on whether there's been a breach of contract, or the term is unfair.

In its defence, the company tried to say my complaint was outside the scope of the ombudsman, because it involved complicated points of law (it was a consumer contract FFS), a little insulting when the adjudicators are all highly qualified lawyers.

The whole point of the ADR schemes is that they are a means to resolve disputes before going to court, there would be no point in using them if they didn't adjudicate on points of law.

If the complaint to the FOS states that the (proposed) disclosure of info doesn't comply with the DPA, and gives reasons why, then the adjudicator will absolutely check the requirements of the Act to decide if the disclosure's compliant.

@Qubit

I am interested in your post about your deferment being accepted.. I rang them a couple of weeks ago and questioned them about people being defered with out signing the form. Spoke to a manager, and he categorically told me that no-one can get defered without signing the form...
Have you got written confirmation to confirm deferment? And has anyone else one here who has NOT signed the form had written confirmation that their loans have been successfully defered?

@ erudioed Good point, I would think that all the conflicting advice could be seen as misleading, especially if you've been told no they won't disclose it (though proving that's another thing).

There's stuff in there about the disclosure having to be justified, not read it properly yet, but their 'promoting responsible lending and borrowing' excuse - did Erudio and Experian not say in one of the MSE articles that the deferred loans showing on our credit files would most likely have no impact, or even a positive impact? Doesn't that contradict the 'responsible' part, which to me means a lender might decide not to give you credit (so a negative impact), because of the additional commitment of the student loan?

@minimoosh

Adjudicators are not all highly qualified lawyers. Even an ombudsman does not need to be one but should be prepared to develop some expertise.

And I disagree. I've seen enough cases where both the adjudicators and ombudsman either disregarded points of law or took some rather dubious opinion on faith simply because of it's source.

Anyway, pointless doing this back and forth, as I am never going to agree with you on that point no matter what you say, as I've seen the evidence of how they reach decisions on many occasions.

Likewise you are never going to agree with me.

That is life.

Best to get on with taking Erudio to task the best we can. :)

I signed the forms (under duress) with sections crossed out to get my deferment through, I got a letter confirming it today a few days after I heard from my MP to advise he was contacting Erudio directly. I'm awaiting a response to my complaint and fully intend to complain to the FOS after the 8 weeks is up. MP also said that if the matter is in order he will take it up with the government. I am left with the nagging doubt about what my having signed their form could infer.
(I'm sure the recent spike in cold calls to the mobile I used to ring Erudio is entirely coincidental).