BH was involved in a single-vehicle road traffic accident in late 2019. Unfortunately, as a result of the accident, he sustained a catastrophic brain injury and serious chest injuries causing him to fall into a coma.

The Background

BH was in hospital when his family were referred to the Legal Service. The main issue they sought our assistance with was in relation to BH’s car finance loan. Before the accident, BH consistently paid a large amount towards the loan. The car was destroyed in the accident, and without an income, he could no longer afford the repayments.

We contacted the creditor to inform them of BH’s circumstances and requested the account be put on hold or, if possible, the debt be written off. However, we were aware that we would face obstacles due to BH’s lack of mental capacity and inability to provide us with the authority to liaise with his creditor.

Strict data protection regulations make it almost impossible to speak to organisations without evidence of some form of legal authority, such as an express authority from the client or a power of attorney. Where a power of attorney was not executed before a person loses capacity, there will be no one with the authority to make decisions on their behalf. The only way to obtain that authority is to apply to the Court of Protection to appoint a deputy. This process is costly and time-consuming and realistically only benefits those who have capital or an income to manage. Our client’s family were not in a position to make a deputyship application due to the client’s lack of assets.

Two months after first contacting the creditor, we still hadn’t received a response despite chasing them. Creditors can be slow to respond and difficult to contact, particularly when no legal authority has been provided. Having said that, some are understanding in extreme circumstances such as these.

Although the creditor was aware our client was in a coma, it continued to send letters addressed to him at his family home, asking him to get in touch. Understandably, these letters caused extreme distress to his family. Ignoring our complaint about how inappropriate and insensitive their letters were, the creditor continued to ask the client to contact them. During these months, the creditor continued to take monthly payments from the client.

With no sign of the client’s health improving and his current account in overdraft due to the loan payments, we sent a further complaint to the creditor. This referred to the ‘Consumer Credit Sourcebook’ (CONC), which provides regulations to ensure lenders act responsibly. We referred, in particular, to the regulations relating to vulnerable customers.

The outcome

As a result, the creditor was apologetic and saddened by the poor service the family had received. They understood that while they have rules and processes to follow, they should apply human judgment in circumstances such as these. We were assured that feedback would be provided to management to ensure further training or a change in processes to avoid other customers or their families facing the same distress.

The creditor wrote off BH’s remaining balance, reimbursed the payments received after our initial letter, and made a small token payment to BH’s family as an apology.

This has allowed the client’s family to move forward and is a huge weight off their shoulders.

Testimonial

When asked how the Legal Service had helped her, the patient’s mother said:

“It quickly became a relief to know they were there to support me. They gave me guidance and information and just took the responsibility away from me, so I didn’t have to worry about it. Stewarts explained several aspects that hadn’t occurred to me about my son’s employment, various forms of authority I may consider applying for, and the processes these would entail. They offered to deal with any or all of this as I wished. They were kind and professional and made it clear they were helping me on a pro bono basis. I never felt pressured to engage their services.

“The loan company were particularly insensitive and continued to write to my son asking for his consent so they could communicate with Stewarts or me. This was very distressing, but Grace at Stewarts took control of the situation, and I didn’t have to get involved at all. Her actions resulted in the loan being waived, and a payment was made for the upset caused. I will be donating this to Headway, the brain injury association.

“This is such a dreadful time and Grace’s help and support have been invaluable to me. Thank you.”

This article was written by our Senior Paralegal Grace Horvath-Franco

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