Consumer rights: Woman, 70, was not to blame for cashpoint scam

What are your rights if someone is behind you at the bank machine and steals your card from under your nose?

A fortnight ago my mother was at a Barclays cashpoint. After queuing, she put her card into the machine and then felt a tap on her shoulder. As she turned round, a man pointed to a £10 note on the pavement and asked if it was hers. She said it wasn't but he again asked if she was absolutely sure. So my mother bent down to pick up the note and the man grabbed the money out of her hand and took her card out of the machine. He and another man ran off.

My mother is 70 and suffers from bad arthritis. She was completely thrown by what happened. The branch was closed and she didn't have her mobile phone with her so she went home and cancelled her card. It was about 45 minutes between the incident and the card being reported stolen. My mother was told the men had spent about £750 on her card. The bank asked her to fill in some forms and after conversations with members of customer relations and the fraud department she was told that the money would be refunded to her account within two weeks. Today (about a week later) my mother went into the bank and asked for a printout of her latest statement. It showed several more transactions had been made during the 45 minutes. About £1,600 had been taken.

Now the bank says that it won't refund any of the money illegally spent on my mother's card as it's her responsibility for having been distracted in the first place! My mother has banked with Barclays for more than 20 years. As you can imagine, she is extremely upset. She has been advised that she's entitled to appeal against the decision. Surely this isn't right and the bank should refund her money.

GB, London

It's bad enough going through a traumatic incident like that but then to be told she is responsible for being distracted in the first place is hard to believe. However, there have been several developments since you wrote to me. There were several point-of-sale and some online transactions made, as well as amounts of cash withdrawn, before the card was stopped. After being contacted, Barclays has had second thoughts about its decision not to refund any of the money taken, and told your mother she would get back the money that was spent using her card, but not the cash taken from machines. But even at that point it also said that a new claim form would have to be submitted, and that once that had been assessed it might ask for the refunded money to be paid back again. It all seemed rather confusing.

That was the point at which I called the BBA (British Bankers' Association) for its view and was told by a spokesman: "This seems an unusual response from the bank as the customer is the innocent victim of a rather nasty fraud. She seems to have acted perfectly reasonably throughout and I would certainly suggest that she takes it up with her bank at a higher level."

Banks investigate whether their customer has done something that contributed to the theft. Did the customer have the PIN written down? Or had he or she given the card and PIN to someone else? If that's the case the banks are within their rights to refuse to refund some or all of the money on the grounds that the customer was negligent and therefore liable. However, in your mother's case it seems fairly clear that the men behind her in the queue read her PIN as she tapped it in to the machine, and then distracted her to allow them to grab her card. To say she was responsible seems harsh and against the payment services regulations which state that unless a customer has acted fraudulently or negligently, the bank is liable for the losses on unauthorised payment transactions, apart from the first £50.

The good news is that as soon as the BBA alerted Barclays' fraud department to the case, and I was in touch with the bank's press office, things began to move very quickly. I've had the following statement from the bank: "It is evident the investigation surrounding this incident was flawed and did not meet our usual high standards. Please be assured the matter has been brought to the attention of the senior management, so similar occurrences are avoided.

"The case has now been reviewed and has been upheld. All the fraudulent transactions have been refunded to the customer's account. Furthermore, as these entries caused the account balance to become overdrawn, no debit interest will be applied for the period concerned. We have also arranged for a gift of flowers to be sent, as a gesture of goodwill."

In summary, Barclays has waived its right to hold your mother liable for the first £50 of the losses and reinstated her account to where it was before this happened.

If possible, take cash out when you have someone with you who'll shield you from the queue. Remember to shield your card and the PIN with your hand. Use machines inside the bank rather than on the street. Ask anyone who is too close to step back to allow you privacy.

Do you need help with a consumer complaint?

Write to Julian Knight at the Independent on Sunday, 2 Derry Street, London W8 5HF

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