Debt Collection Agencies

Tony made this Freedom of Information request to Office of Fair Trading

The request was partially successful.

From: Tony

17 November 2008

Dear Sir or Madam,

Can you please tell me under the Freedom of Information Act 2000
how many complaints you have registered against:

McKenzie Hall Ltd 0544407.
Lowell Portfolio 1 Ltd 544015.
Meritforce Ltd 0434326.

Further can you please indicate if any warnings have been made
against these companies and whether they have been the subject of
any investigation or regulatory action to date? Have they ever been
prosecuted in any way by the OFT for any offence?

Can you also please indicate the types of actions that are
available to the OFT in relation to transgressions by these firms
under the terms of their licences?

Can you please indicate which possible transgressions of their
licence or breaches of the Consumer Credit Act 1974 are possible
transgressions of a criminal nature? Who is responsible for
prosecutions of a criminal nature as regards transgressions by
licenced debt collection agencies?

If a pursued person requests a copy of his/her agreement under
section (78) 1 of the Consumer Credit Act 1974 what are the legal
responsibilities of debt collection agencies? Are transgression of
the 12+2+30 requirements criminal in nature?

Please note that I don't require specifics in any way just general
information.

If you require any clarification or any further information please
feel free to ask at any time.

Kind regards,

TONY WISE.

Yours faithfully,

Tony

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From: Mary Linacre
Office of Fair Trading

18 November 2008


Attachment FoIA Ack letter.doc
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Dear Mr Wise

Please find attached acknowledgement to your FOI request.

<<FoIA Ack letter.doc>>

Mary Linacre| Information Access & Records Management Team | Corporate
Services | Office of Fair Trading
Fleetbank House | 2-6 Salisbury Square | London EC4Y 8JX | T: 0 20 7211
8802 | [1]www.oft.gov.uk
[email address]

P please don't print this e-mail unless you really need to

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From: Rita Hall-Hughes
Office of Fair Trading

11 December 2008

Your ref
Our ref IAT/FOIA/47782
Date 11 December 2008
Dear Mr Wise

Freedom of Information Act Request
Licensees: Mackenzie Hall Limited, Lowell Portfolio 1 Limited, and
Meritforce Limited
Licence number: 544407, 544015, and 434326

Thank you for your e-mail of 17 November 2008 regarding consumer
complaints and regulatory action against Mackenzie Hall Limited 544407,
Lowell Portfolio 1 Limited 544015, and Meritforce Limited 434326.

You have asked for the following information, under the Freedom of
Information Act 2000;

1. the number of complaints registered by the Office of Fair Trading
(OFT) (against each company)
2. whether any warnings have been made against these companies
3. whether the companies have been the subject of any investigation or
regulatory action to date
4. whether the companies have ever been prosecuted in any way by the OFT
for any offence
5. the types of actions that are available to the OFT in relation to
transgressions by these firms under the terms of their licence
6. which possible transgressions of their licence or breaches of the
Consumer Credit Act 1974 (CCA) are transgressions of a criminal nature
7. the organisations responsible for criminal prosecutions regarding
transgressions by licensed debt collection agencies
8. the legal responsibilities of debt collection agencies when a pursued
person requests a copy of his/her agreement under section (78) 1 of
the CCA
9. whether transgression of the 12+2+30 requirements are criminal in
nature.

Your request for information has been considered in line with the
requirements of the Freedom of Information Act 2000 (FoIA) and the
disclosure provisions of the Enterprise Act 2002 (EA 2002).

 
Response to Question 1
I am sorry to inform you that due to the legislative constraints contained
in Part 9 of the EA 2002 which relate to 'Restrictions on Disclosure'
requests for details of complaints data held by the OFT, including whether
or not the OFT has received any complaints; the details of those
complaints or the number of complaints about a business or individual
cannot be provided unless a permitted gateway allows the information to be
released (see below).

Section 44(1)(a) of the FoIA provides an absolute exemption from
disclosure of information where the Public Authority holding it is
prohibited by or under any other enactment.

One such prohibition is contained in Part 9 of the EA 2002. Sections 237
and 238 of that act prohibit the disclosure of specified information.
Specified information is information which comes to a public authority in
connection with the exercise of its functions. Complaints information that
is received by the OFT and/or Consumer Direct including the details or the
number of complaints about a particular company or trader is received in
the course of the performance of our functions under the EA 2002 and is
therefore subject to the exemption on disclosure as described at section
44(1)(a) of the FoIA.

Furthermore the OFT neither confirms nor denies that that it holds any
complaint information falling within the terms of your request. The duty
under section 1(1)(a) of the FoIA which states:

'Any person making a request for information to a public authority
is entitled to be informed in writing by the public authority whether
it holds information of the description specified in the request'

does not apply by virtue of section 44(2) of the FoIA which states:

'The duty to confirm or deny does not arise if the confirmation or denial
that would have to be given to comply with section 1(1)(a) of the FoIA
would fall within section 44(1)(a-c)'.

You may be interested to know that the refusal to supply complaints
information by the OFT has on a number of occasions been appealed by
members of the public to both the Information Commissioner and the
Information Tribunal. Both have upheld the OFT's application of section
44(1)(a) of the FoIA in relation to Pt9 of the EA 2002 and have confirmed
not only our refusal to supply information but also that we should neither
confirm nor deny we hold complaints information about an individual or
business. See Information Commissioner's Office (ICO) appeal case
Professor Colin Harbury dated 18 August 2008 reference FS50150268 and the
Information Tribunal case summary Dey v ICO and OFT [EA/2006/0057).

I am therefore sorry that I am unable to provide you with the information
you requested but, as you can see from the above information there are
significant legal restrictions placed on the OFT in relation to the
disclosure of information it receives in the exercise of its statutory
functions. Such information can only be dealt with in accordance with
Part 9 EA02.

Gateway
The EA 2002 (Disclosure of Information for Civil Proceedings etc.) Order
2007 came into effect on 1 October 2007 which amends Part 9 does, however,
provide a gateway for the disclosure of consumer information such as
complaint information for the purposes of civil proceedings. However, in
order to assess the applicability of this particular gateway to allow any
disclosure of specified information such as complaints data, we would
first need evidence from a court of forthcoming proceedings. If,
therefore, your problems with any of the traders referred to above result
in civil proceedings then it may be that we could disclose certain
information we hold to you.

 Response to Questions 2 and 4
The Consumer Credit Register (CCR) provides details of applications for
holders of consumer credit licences, both current and past. It also
contains details of any OFT decisions to refuse an application or revoke a
consumer credit licence as well as information relating to any appeal
against this decision. Due to legal constraints, the OFT is unable to
disclose any further information relating to licence applications or
current licensees above and beyond that which is available on the CCR. The
register can be accessed from the OFT web-site at:-

[1]http://www2.crw.gov.uk/pr/Default.aspx

Response to Question 3
The OFT in reliance on section 31(3) FoIA is unable to confirm or deny
whether it holds the information requested in this question since to do so
is likely to prejudice the matters set out below. Consequently, we are
unable to supply the information requested. This is not to be taken as an
indication of whether or not we hold the information requested.

Reason for refusal to supply information
The OFT considers that the information requested is exempt from disclosure
under section 31(1)(g) and (2)(a) - (c) FoIA. By way of explanation, the
OFT conducts investigations into businesses when the evidence warrants it
but we are unable to provide information on enquiries or investigations
undertaken by the Office unless such enquiries or investigations result in
formal action being taken against a business (including sole traders)
and/or a press release has been issued. The OFT considers that confirming
whether or not it holds information about enquiries or investigations with
businesses unless that information has already been made public on a
previous occasion would be likely to prejudice the exercise of its
functions for the following purposes, namely the purpose of ascertaining
whether:

a. any person has failed to comply with the law;

(b) any person is responsible for improper conduct; or

(c) circumstances exist which would justify regulatory action in
pursuance of any enactment.

This is because the OFT depends on its ability to correspond as freely and
frankly as possible with businesses when investigating their conduct in
relation to matters affecting consumers. We consider that businesses
would be substantially less likely to engage in such correspondence with
the OFT if the fact that we investigating them or in correspondence with
them were likely to be disclosed under the FoIA. We also consider that the
conduct of such investigations itself would be prejudiced or is likely to
be prejudiced if the existence of such investigations or the intention to
conduct such investigations is (prematurely) disclosed. We therefore
consider that the section 31 (1)(g) and (2)(a)-(c) and section 31(3)
exemption is applicable to this type of information.

The OFT acknowledges that section 31 FoIA is subject to a public interest
test. There may, in some cases, be a public interest in disclosing whether
or not it holds information about action it is taking or is considering
against a business. However, there is also, as indicated above, a
competing public interest in maintaining the OFT's ability to thoroughly
and impartially investigate matters with businesses in the proper exercise
of its functions. We have considered whether there is a public interest in
providing information of the sort requested and concluded that the public
interest is best served by not confirming or denying whether we hold any
information of the sort requested. Therefore, the OFT considers that the
balance of the public interest favours maintaining the section 31
exemption on this occasion.

Response to Question 5
The OFT has a duty under the Consumer Credit Act (the CCA) to not only
consider the fitness of applicants for licences but also to monitor the
continuing fitness of current licensees where issues arise which give
cause for concern. Section 25(2) of the CCA provides that, in determining
licence fitness, we shall have regard to any circumstances appearing to us
to be relevant. In considering fitness, the OFT takes into account, among
other matters, whether a business has engaged in unfair business
practices. This includes any evidence that traders have not complied with
guidance issued by the OFT, for example OFT guidance for debt collectors
which outlines examples of unfair business practices. The OFT Debt
Collection Guidance (DCG) can be viewed at:

[2]http://www.oft.gov.uk/advice_and_resourc...

Where the OFT has strong evidence that unfair business practices have
occurred, it may take steps to revoke or refuse the licence of the
business in question. The OFT also has the power to impose requirements if
we are not satisfied with the conduct of the licensee or applicant and
when we want the licensee or applicant to address a particular concern. A
failure to comply with a requirement could result in a financial penalty.

Responses to Question 6 & 7
As explained above in our response to question 3, and for the reasons
stated there, we are unable to disclose whether any of the named companies
to which you refer have breached any aspect of the CCA. The criminal
offences that are possible under the Consumer Credit Act are listed in
Schedule 1 of that Act, which can be accessed by following the link below:

[3]http://www.statutelaw.gov.uk/SearchResul...

Likewise, the list of public bodies responsible for prosecuting these
offences is contained in s161(1) of the Consumer Credit Act and is also
accessible from the link already given above.

Response to Questions 8 and 9
The requirements of sections 77 and 78 of the CCA 1974 apply to regulated
agreements.
As you may know, section 63 of the CCA covers how and when lenders must
provide consumers with a first (and where appropriate second) copy of a
regulated agreement. It is clearly in the lender's best interests to
retain details of the original agreement and any subsequent variations or
changes made to it, particularly as consumers can request a subsequent
'true' copy of most types of agreement under sections77 and 78 of the CCA
(and on payment of the appropriate fee). There are rules about what is
likely to constitute a 'true copy' under these sections of the CCA.
Further, if a consumer does make a valid request for a copy of their
agreement under these provisions and the lender does not comply with the
request the agreement may not be enforceable in the Courts, subject to any
other mitigating factors.

We have interpreted your final question to be a reference to timescales
for responses to section 77-78 requests set out in the CCA. A failure to
comply with the relevant timescales would not be a criminal offence, but
may be taken into account by the OFT when considering licence fitness.

Appeals procedure
If you wish to complain about the way in which your request for
information has been handled, you may seek an internal review by writing
to:

The Internal Review Co-ordinator
Room GS 3
Office of Fair Trading
Fleetbank House
2-6 Salisbury Square
London
EC4Y 8JX

You may alternatively send an e-mail to [4][email address]

We will deal with your complaint within 25 working days of receipt or, if
this is not possible, advise you of a date by which we expect to have
completed a review of your complaint.

If you remain dissatisfied with the OFT's response you have the right to
complain to:

The Information Commissioner
FOI/EIR Complaints Resolution
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SX9 5AF

Yours sincerely

Rita Hall-Hughes
Head of Debt Collection Team

Rita Hall-Hughes| Head, Debt Collection Team, Consumer Credit Group,
Corporate Services | Office of Fair Trading
Fleetbank House | 2-6 Salisbury Square | London EC4Y 8JX

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

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1. http://www2.crw.gov.uk/pr/Default.aspx
2. http://www.oft.gov.uk/advice_and_resourc...
3. http://www.statutelaw.gov.uk/SearchResul...
4. mailto:[email address]

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