Post
by marty06 » Sat Dec 19, 2009 9:38 am
My wife's visa and our passports have now arrived, three days late.
In the meantime I did some research into what would happen if the documents had all gone missing, and thought I'd post it here in case anyone else finds themselves in this situation. This is a bit long, but I hope by explaining it at length someone will be saved the headache that I went through trying to resolve this and get answers from the Border Agency!
As far as I can tell, whatever is being sent, whether visas from the Border Agecy or DVDs from Amazon, it is always the sender's responsibility to protect the item until the recipient acknowledges receipt (i.e. you sign the little machine that the postman gives you on the doorstep). The sender remains responsible for the item during its time within any mail system, such as the Royal Mail. The sender has 'contracted' with the mail delivery service to pass on the item to the recipient, and any loss during this stage needs to be resolved by the sender and the mail delivery service [incidentally, this also applies to all those Ebay sellers that say 'we take no responsibility for items lost in the post': such statements wouldn't hold up in a court of law]
Therefore, the Home Office were wrong to tell me that I would have to claim compensation from Royal Mail and repay the visa application if the documents had been lost. Legally the documents were still the Home Office's responsibility, and they contracted with Royal Mail to send them to me. If they had wanted to claim compensation from Royal Mail, that's up to them, but they must make sure that the recipient is adequately compensated for the lost documents (i.e. they would have to pay for new passports, a new visa application and anything else that you'd included and lost - including the actual Special Delivery prepaid envelope itself if you sent one!) This means that whether or not they can reclaim costs from Royal Mail, it doesn't affect their legal duty to compensate me to the full amount that I had lost. Nor technically should Royal Mail's failure to process any claim in a timely manner effect the Border Agency's willingness to compensate you for your loss. i.e. they can't wait until Royal Mail have refunded them before they refund you, although it is reasonable to suppose that the investigation into the missing item might take a month or so to process and the Border Agency do have a right to confirm that the items are really lost before compensating you for them.
The tricky thing here - and why it gets confusing - is that many visa applicants include a prepaid, self-addressed Special Delivery envelope in the original package. This gives you the sense that you are somehow responsible for the safe return of the document, and makes you believe the fact that it is up to you to deal with Royal Mail if it goes missing. This fact is compounded because Special Delivery offers compensation (up to £500 as standard) for failed deliveries. It is therefore natural to think 'I purchased the Special Delivery envelope, so it is me that will need to claim the Compensation which comes as part of the purcahse'. Indeed, the person at the Home Office enquiry office said something like this to me.
This is, in fact, not true. All you've done by sending a Special Delivery envelope for the return of the goods is paid for the postage: it would be like including a stamp, or even 30p for the price of a stamp. You've simply purchased and then passed on a pre-paid envelope to someone else to use. Sure, if they use it then it will work for your benefit (i.e. you will be able to track the item if you took a note of the tracking number), but it does not make you liable for the item until you have received it back and signed to confirm this. They will still be the sender of the item, and they will still therefore be in a contract with Royal Mail which is solely between them and Royal Mail.
This fact is supported by the fact that, when you buy your prepaid Special Delivery envelope, you can't actually purchase any additional insurance (which would extend the cover from the standard £500 to £2500) or the consequential loss insurance (which covers you for any costs that flow from the loss of items). All you can buy is the cost of the service itself. This is because it will not be you who is sending the item: these insurances can only be bought by the sender, because compensation can only be paid to the sender of the item (after all, imagine a situation where Amazon had sent you a DVD, it doesn't arrive, then you claim compensation for it from Royal Mail as well as asking for your money back from Amazon: it would be an easy way to work the system!) So when the Home Office say 'you must claim compensation from Royal Mail' , well, you can't actually claim compensation beyond the standard £500 nor could you have insured the documents yourself (and as we all know the cost of the visa alone is much more than this) because Royal Mail adheres to the principle that liability resides with the sender, not the recepient. They simply do not allow the recepient to buy insurance [again, this also applies to all those Ebay sellers who offer you 'extra insurance': this is false advertising - it is not your duty to buy 'insurance' for the item because any loss would not be down to you to bear.]
It's also confirmed by the fact that you can, if you want, opt not to send a Special Delivery envelope and just ask for the things to be returned 'Signed for'. This would mean the Border Agency pays for the postage rather than you. In this scenario you wouldn't feel responsible for claiming compensation because none is available from Royal Mail and you haven't actually purchased anything. But it can't be the case that by buying a better delivery service you become more liable than if you opted for the lower one! In fact, whatever delivery service you chose, the Border Agency remains responsible the documents. They are no more or less liable if the documents get lost using Signed For than Special. All that Special gets you, the applicant, is the ability to track the item from start to finish and a gaurenteed next day delivery. (Special also allows the Home Office to claim that £500 compensation if they wanted, plus any other insurance they may have). So all this advice equally applies if you opt for Signed For: don't let them tell you that you should have gone for Special if you wanted to insure it. To use my analogy again - a DVD that fails to turn up from Amazon is not your responsibility whether or not you opted for '3-5 days first class post' or 'Next Day Courier Delivery service'.
One third and final illustration is that, although you can guess that the item with your tracking number which has been lost is, in fact, your passports, documents and visa, you've actually got no proof of this: they may have sent you back the envelope empty or filled with fluff. You don't even know that some Border Agency employee is not in league with a Post Office employee to activate the tacking and then steal the passports. My point is: how can it be up to you to claim compensation when you don't actually have any legal proof that the thing you are trying to be compensated for has actually been lost. All you know is that the special delivery envelope you bought has entered the mail system. But maybe the envelope got sent out wrongly and they actually still have your passports in their office? Again, it's only the sender that can state categorigcally and in a court of law: I posted this envelope, containing these items, on this date and it has been lost
So here is my advice:
1. Make sure you keep the initial letter that the Border Agency send confirming they received your documents. This is your proof that they actually have them and that they therefore remain their responsibility until you have confirmed to them that they are back in your possession (which you do by signing)
2. The Home Office will not register an item as lost until 28 days after it was sent. However, Royal Mail told me they will accept a Special Delivery item as lost after 10 days.
Therefore, my suggestion to anyone that loses their documents is to wait the ten days (don't ring up the Enquiry number - they don't know anything about lost documents, they don't have the right information and they tell you they can't do anything) and then write or fax the Border Agency informing them that you believe the items they sent are lost. Make it clear in the letter that you expect them to fully compensate you for the lost items (including any additional costs incurred by you - e.g. having to travel to an embassy to get a new passport) and state that the documents remain the responsibility of the Border Agency. State that you also expect your visa application to be reinstated quickly and without you having to submit a new application. Ask them to explain the process of reissuing the visa and promise to co-operate with any documents that they do no need (they will need your new passport, for example), underlining the fact that you will expect all delivery costs for these documents (i.e. when you send them to them) to be reimbursed.
3. If there is no response, resend the letter after 28 days.
Make sure you send the letters by 'signed for' so you can prove they got them. There's no need to do Special because the letter does not have an inherent value. All you would need to do if these letters get lost is resend them and claim the cost back for failed delivery from Royal Mail.
4. When resending passports (or indeed sending them the first time), make sure you send them Special Delivery and purchase the correct level of insurance (£500 as standard - if you need more buy it and reclaim it from the Border Agency). Remember - all that I said above applies to you when you are sending documents, so make sure you are properly insured so the Royal Mail will pay you compensation if they lose your passports again!
5. If the Border Agency refuse to play ball, refuse to pay, or are slow, seek advice from a Citizen's Advice Bureau and ask a British citizen to write to their MP on your behalf.
6. If, in the end, the documents do turn up, then Royal Mail does allow the recipient of a Special Delivery item to make a claim for the failure to meet the guaranteed delivery time (but obviously not to claim the value of the contents as you now have them back). This is as long as the sender does not also make a claim, in which case priority goes to the sender. As it is unlikely the Border Agency will make a claim - and likely that you want nothing to do with the Border Agency ever again by this point! - it is easier to use this option at this stage than ask for the Home Office to reclaim it, so go ahead and put in the compensation form.
I hope all this might prove helpful to someone and if anyone else has any corrections or clarifications please go ahead and make them - as I say, this was all the product of my frantic search for information yesterday.
,,,,,,,,New year, New life