DRN-6286764

The complaint Ms F complains that AMERICAN EXPRESS SERVICES EUROPE LIMITED (AESEL) rejected her claim under section 75 Consumer Credit Act 1974 (s.75) in respect of a holiday. What happened Ms F booked a tour with a travel company for a 23 day trip covering a number of countries. This was led by a tour guide and there were a number of participants, who prior to the tour were not known by Ms F. She says that she had to leave the tour after three days “due to serious safeguarding failures, racial and disability-related discrimination, and psychological harm caused by the tour leader”. The tour company arranged for her to reach a city where she could make her own way home. Ms F contacted the travel company as soon as she had access to Wi-Fi to complain. She set out in some detail the difficulties she faced dealing with other members of the tour and how they had made her feel. She also set out what she regarded as the failings of the tour leader to protect her. The travel company asked for more details but her complaint was not accepted. Ms F made a claim on her travel insurance policy and she says her claim was upheld on the grounds of curtailment. However, the policy upper limit meant that she didn’t get all her money back. She contacted AESEL and asked that it cover her loss of £1,453 plus £1,000 for loss of enjoyment. She provided her emails to the travel company and its responses in support of her claim. AESEL concluded there was not sufficient evidence to allow it to uphold the claim and it also rejected her subsequent complaint. Ms F brought a complaint to this service about AESEL’s rejection of her claim and its handling of the matter. She explained she was a neurodivergent woman of colour and AESEL had not properly recognised this. The complaint was considered by one of our investigators who didn’t recommend it be upheld. She sympathised with Ms F but said she didn’t consider AESL had been given sufficient evidence to uphold the claim. Nor did she think that it had handled the claim improperly. Ms F didn’t agree and said our investigator had taken a narrow view on what proof was required. She had provided contemporaneous emails setting out what had happened which should be given greater weight. The tour leader had not handled the situation correctly and had not taken reasonable care to resolve the matter. She had to leave because of the escalating risk she faced. She also believed the fact the insurer paid out supported her claim while not proving there had a been a breach. Also, she felt AESEL had not sought to speak with her to clarify what additional evidence could be provided. What I’ve decided – and why I’ve considered all the available evidence and arguments to decide what’s fair and reasonable in the circumstances of this complaint. When the evidence is incomplete, inconclusive or contradictory as some of it is here – I’ve

-- 1 of 4 --

reached my outcome on the balance of probabilities – that is, what I consider likely to have happened given the available evidence and the wider circumstances. I want to acknowledge that I’ve summarised the events of the complaint. I don’t intend any discourtesy by this – it just reflects the informal nature of our service. I also want to assure Ms F and AESEL that I’ve reviewed everything on file. If I don’t comment on something, it’s not because I haven’t considered it. It’s because I’ve concentrated on what I think are the key issues. Our powers allow me to do this. I should make it clear that the role of the Financial Ombudsman Service is to resolve individual complaints and to award redress where appropriate. I do not perform the role of the industry regulator and I do not have the power to make rules for financial businesses or to punish them. I have every sympathy with Ms F and the situation in which she found herself in but I do not consider I can uphold her complaint. I will explain why. There were two routes by which Ms F could obtain a refund, one is via chargeback and the other is s.75 claim. Chargeback Chargeback is a voluntary scheme run by the card scheme operator to process settlement disputes between the card issuer – on behalf of the cardholder (Ms F) – and the merchant (here it’s the travel firm Ms F made the payment to). It is not a legal right that the cardholder has. The scheme operator sets the chargeback rules and time limits for transactions made using the card scheme. And it is the scheme operator that decides whether a chargeback is successful – the card issuer simply makes a request on the cardholder’s behalf. If the card issuer knows it is out of time, or is unlikely to succeed, I wouldn’t necessarily expect it to raise a chargeback. In this case I think it highly unlikely a claim would have succeeded had AESEL made one. The travel company would most likely have defended it and I doubt any appeal would succeed. Furthermore, it would only cover the money lost by Ms F and not her claim for lack of enjoyment. As such I do not consider AESEL did anything wrong in not pursuing a chargeback. Section 75 This legislation offers protection to customers who use certain types of credit to make purchases of goods or services. Under s. 75 the consumer has an equal right to claim against the provider of the credit or the retailer providing the goods or services, if there has been a misrepresentation or breach of contract on the supplier’s part. For s. 75 to apply, the law effectively says that there has to be a  Debtor-creditor-supplier agreement and  A clear breach of contract or misrepresentation by the supplier in the chain. Our role isn’t to say if there has been a breach of contract or a mis representation for a valid claim under s. 75 but to consider if AESEL has come to a fair outcome based on the evidence it was provided. I am satisfied the required agreement is in place and so I must consider if a breach of contract or misrepresentation had been established in the claim made

-- 2 of 4 --

to AESEL. I would add that Ms F is seeking a significant sum from AESEL and the onus is on her to demonstrate that there has been either a breach of contract or misrepresentation. It would appear that the basis of Ms F’s claim is that there was a breach of contract. I have not seen the contract provided to Ms F, if there was one, but the document titled Important Information which has been provided by her refers to some rules. These include: “Everyone has the right to feel safe no matter where they are in the world. [The travel company] will not tolerate any form of violence, bullying or sexual harassment; whether that be verbal or physical to anyone.” Ms F claims that she suffered bullying and was ostracised by members of the party and that the tour leader did not handle this properly which then caused her to leave the tour. I have read what she wrote to the travel company shortly after she left, or as she was leaving and I can see how strongly she felt about the treatment she had encountered with the other travellers. What is key to her claim is whether the tour leader did anything to assist her. From what I have read it appears that she did seek to mediate and to arrange for rooms to be changed. Ms F says that the tour leader’s approach was unsatisfactory and was not professional. I appreciate that view, but it is difficult to say with sufficient certainty that the handling of the matter was such that it amounted to a breach of contract. I have not seen any reference to Ms F having told the travel company in advance about her neurodivergence or that she asked for any special support. Even if she had done I do not think the evidence is sufficient to say that the guide’s actions amounted to a breach of contract. It would appear that she sought to be supportive and while I recognise Ms F’s view that her efforts were not good enough I cannot say this has been demonstrated sufficiently to allow AESEL to uphold her claim. It had the emails written by Ms F shortly after the tour ended for her and it took the view these alone were not enough. I cannot safely conclude that decision was wrong. The tour company clearly took the view that the leader had made a reasonable attempt to address the situation and regrettably this had not worked. When that point was reached and Ms F felt unable to continue she was given support to make her way home. It is regrettable this point was reached and I am sure it is not a decision Ms F would have taken lightly. However, that of itself is not enough for me to uphold her complaint. Given the evidence provided to AESEL it took the view this was insufficient to establish a successful claim under s.75. The tour company had arranged and provided the flights, accommodation etc. and had arranged the early return home insofar as it could. It recognised Ms F’s view of how this had arisen but it didn’t feel the evidence was strong enough to demonstrate a breach. I consider that to have been a reasonable decision to have reached. I would add that while the insurer may have upheld the claim its decision would have been made on different criteria and the outcome of that claim does not materially affect the s.75 claim. On the matter of how AESEL handled the claim I cannot see that it did anything materially wrong. It took all the information provided and reached a conclusion which it set out clearly for Ms F. In conclusion, I have no doubt that Ms F had a very unpleasant time and she has my

-- 3 of 4 --

sympathy, but I do not consider I can say AESEL acted wrongly in reaching the conclusion it did. My final decision My final decision is that I do not uphold this complaint. Under the rules of the Financial Ombudsman Service, I’m required to ask Ms F to accept or reject my decision before 26 May 2026. Ivor Graham Ombudsman

-- 4 of 4 --