Complaints about the FOS

[Kraken1]

as the fos has been reviewed by the courts and academic writers I'm not sure that this will go anywhere.

 

They give plenty of time on the basis of the 'enough rope to hang themselves' and because they need to follow the rules of natural justice, especially as the decisions are binding. just like set asides of ccjs if they went quicker then they'd be subject to alot of set aside 'hearings'.

 

As for the obligation to follow the law, often this is open to interpretation and it is not the role of adr to follow the law specifically, if you want this you go to the courts, not fos. You go to fos if you want an alternative approach to your dispute that may nod towards the law. In places this is of benefit, for eg where laws of evidence etc are concerned. You'd be amazed how many consumers label everything without prejudice...

 

can't comment on the last two, but I'd wager that the banks also feel that they are bias, hence the judicial reviews etc. I used to have alot to do with ADR (in another field) and I was always struck how both sides were adamant that the adjudicator was bias. Go figure.

[Kraken1]

Well said S. I think the FOS is fairly misunderstood.

[Kraken1]

Incidentally, I was once offered a job as a FOS adjudicator. Didn't take it though.

 

This said, I do know a good whack about ADR and have worked in the field for a fair few years now, for a couple of adr services. What S is saying is right. You can not like it, but it is right.

 

It is true that the FOS cannot rule on points of law. Indeed, it is current thinking in ADR that any service should not rule on a point where there is any legal debate. This is the job of the courts. It is also true that adr is not suitable for every claim. Some don't deal with commercial claims, others have certain process restrictions.

 

The courts decide cases on the basis of the law, ADR looks at what it thinks is right and the law is only one consideration. If you have admitted a debt is yours, but are arguing that it is unenforceable due to non compliance with something (a DN for eg) then I doubt you will get anywhere with FOS. Maybe if your adjudicator is really crap you might, but they will probably just look at it and say that the debt is yours, therefore you are liable. The agreement might not be enforceable in court but the FOS is not a court. Therefore the argument is irrelevant from the point of view of FOS.

 

Best way to look at is that the FOS is like a bus - it is great if you want to go to where the bus stop is, ok if you are going in the general direction but fairly rubbish if you live in the middle of a moor; it is generally ok for many folk, but not all.

 

I do however agree that generally the competence of your adr service is dependent on the quality of your adjudicator. FOS have so many adjudicators and the starting salary is fairly low so miy instinct is that there might be some issues.

[Kraken1]

Sort of...but I think it is a little more complex than that.

 

They should consider the law, but in the case of unenforceable agreements I guess that their thought process would work like this:

 

The debt exists, the consumer has admitted this.

The agreement is unenforceable in court

We are not being asked by the creditor to enforce the agreement

We are being asked for a declaration that the agreement is unenforceable

We are not a court so cannot enforce the agreement and cannot therefore comment on enforceability. This would be outside of our remit.

They can then go and consider any claims for harassment or similar, but cannot get involved in technical legal questions as it is not relevant to their consideration of the case.

 

If the complaint centres around interpretation or application of the law, then it should be considered by a court. Not FOS.

 

This is only a guess, mind.

 

 

It is my understanding, however, that the FOS is about as popular with the banking industry as it is here. Banks and similar have invested a fair amount trying to curtail and restrict them and have failed. The FOS service has been judicially reviewed and sued a number of times and always has come out ok. On balance I feel that the biggest problem is a lack of understanding of what it actually does and how it does it.

[Kraken1]

I'm not sure I like the pop-up, or entirely agree with what it says. My old sociology teacher would have said that it is a 'sweeping generalisation'

[Kraken1]

I'm not sure I'd agree that they are bias. By definition if you think they are bias, and the industry does too, they are probably not...

 

I would agree that timescales and training might need work though.

[Kraken1]

I must admit I have to admire the banking industry on this. They do not like the FOS but have somehow managed to instill a dislike of it within many consumers.

 

This way everyone is campaigning against it. Almost like giving a manically and suicidally depressed person a job in a pharmacy, and then telling him his dog has died.

 

Or you could go for the the usual suspects thing (or Charles Baudelaire if you are that way inclined) - "the greatest trick the devil ever pulled was convincing the world he doesn't exist"

[Kraken1]

Ok. Advice from an adjudicator.

 

If you are submitting a claim:

 

Make it clear.

Use plain english

Do not go all legal unless you are certain you are right, and even then, don't bother. Rather than 's123 of the tin foil regulations 1632 states that...' or 'In the case of R v Tin foil ltd the HOL ruled' say that 'I believe that...[state law].' A good adjudicator will know what you are talking about. A bad one won't and you won't get anywhere anyway; you'll just alienate him.

Use evidence to support argument - They did x, and as a result I lost £1.4m. Here is the invoice for dry-cleaning.

Keep it short. 12 page letters are a no-no.

Use bullet points

Use paragraphs

Use punctuation

Use page numbers

Use grammar correctly. Don't use too much or too little.

For gods sake NEVER hand write it.

Never use lined paper.

Never let emotion intrude on the facts.

Don't just write 'please see attached'. Fill in the forms. Summarise your complaint.

Ask for what you want and justify it. Be reasonable and realistic. The more cheeky you are the less seriously the rest of your complaint is considered.

Focus on the personal impact - they cannot change the world, only consider your claim. Don't start saying things like 'you need to stop this happening to other people'. Keep it personal and individual.

 

To be honest, some of the cag letters, whilst perhaps ok for DCAs are not good if you are seeking help from an adjudicator.

 

There are perhaps many others, but they are the ones that spring to mind.

 

The most important though - be nice to your adjudicator. Don't harass. Bond with him, get him on your side. Bully, cajole or insult and he will be less inclined to help you. If that is the way you are treating the independent adjudicator how must you have treated the other guy? It means that when the other chaps says that you are an unreasonable nutter you have provided the evidence to support it...

[Kraken1]

who gives a stuff about the ajudicator. He/she is there to address your complaint, not to have his/her ego massaged.

 

Fair enough. You **** off the adjudicator then. Good strategy. After all they are only people. They are only looking at hundreds of cases, why bother making yours stand out? They are only the ones who will make the decision.

 

lets go the whole hog. When you get to court, flip the bird at the judge. Woo-wee. Now we are really on course to win. Even better, drop the trousers and shake it at him exclaiming 'Say hello to mr happy! He knows more law than you'.

 

Please use some common sense. You don't react well to being shouted at, why would anyone else? Build empathy and they will bend rules to help you.

 

Still, if you pay peanuts I suppose all you can expect are monkeys - untrained ones at that.

 

As for payment/monkeys.

 

FOS entry levels is around the 24k mark I think running up to around the 45k mark. Most others offer around the 30-40k mark with some exceptions in the public sector where an adjudicator will cost you about 60k.

 

Keep an eye here for vacancies

 

BIOA | Job Vacancies

 

Typically they look for law degrees, higher degrees, legal experience, TSS experience, complaints handling experience, industry experience.

 

As for scales - I don't get them. I have a number of green blobs on my profile but only one here. And I was hoping to help by pointing out how you can make a good claim.

[Kraken1]

it is likely that a case worker will make assumptions based on paperwork supplied by the firm involved;

paperwork that can be incorrect.

 

Actually, this is what they are told to do - make a decision based on the evidence presented by all parties. Where a judgement call is required it should be made on the balance of probabilities; what was most likely to happen.

 

This is why how you present your case (see my post above) is very important. Make it easy for them (without being condescending, bullying etc) and support assertions with evidence. Outright statements or denials will not fly.

[Kraken1]

fact of life. If you go against the flow you are a troll or a dca in cognito. It is the only response available from some if they don't like what you say.

[Kraken1]

The above is not the case here, rather disagreeing with a viewpoint that is flawed.

 

Y'see, I can't agree that my viewpoint is flawed, or those on this side of the fence.

 

We are not saying that the FOS is perfect, only disagreeing that it is not fit for purpose. It is generally fit for its purpose; this purpose is just misunderstood. It could be improved, but that is not the debate.

 

I must admit that I have only carried out a few thousand case reviews and adjudications this decade, so how would I know how to deal with them?

[Kraken1]

TSS. really? makes a change from the 'you're debt collector **** you' which seems to have been fairly common.

 

And I'm not admitting anything. I'm actually a professional footballer.

[Kraken1]

So basically the FOS dont have to adhere to laws, dont have to follow regulations or guidelines and dont have to answer to anybody.

 

Ish. They are subject to judicial review and have been reviewed. Their decisions and processes have also been challenged in the courts. The fact that the challenges have, in the main, been unsucessful should tell you what the judiciary think of them.

 

They do follow laws and regs, but the point that is missed in alot of this is that these very laws that everyone wants them to follow actually prevent the FOS from ruling with them or do not give FOS the power to do so. They cannot replace a court or rule in cases where a court should. They cannot make precedent, or enforce agreements. They cannot decide legal issues.

 

For my sanity, please state which laws they do not adhere to and explain to me how they can adhere to them without acting beyond their authority and remit.

 

In some instances, I think you will find that they actually go further than the law, where they can. For example their compensation awards for non percuniary loss could be considered to be more generous than those a court would give you.

 

They are quite happy to take the word of a person, who just happens to work in a bank or other financial instution over evidence from a person who dosent.

 

This is a misconception, they don't take anyone's word, they look for a statement and evidence to back it up. What you often get is a he said-she said argument. In these instances you need to look at who needs to prove their claim and look to see that evidence has been provided to satisfy the relevant burden.

 

In some respects this is where there is a limitation - a judge can say that he prefers the evidence of one party. An adjudicator cannot, assertions need to be supported with evidence.

 

you have to be extra nice to the adjudicator, or you will stand no chance.

 

No you don't, you need to be nice. Not extra nice. Be civil. Decent. Polite. Reasonable. It is not bright to provide evidence to support the other side's case.

 

If you can build a relationship with your adjudicator do so as it will increase your chances that he'll find for you, or do what he can to do so. This might be as simple as allowing extra time or asking for further evidence when he doesn't need to do so. Some forms of ADR deliberately keep their adjudicators away from the parties for this reason. Is it easy to pick up the phone and talk to your adjudicator? Probably not.

 

Here is the situation.

 

Bank - consumer is a crook. they are abusive and unreasonable. We've done nothing wrong.

Consumer to Adjudicator - you're crap, your're bias, you know nothing, it is all a conspiracy and you are on the banks side, you are not fit for purpose, you are untrained and your decisions are pure lunacy etc etc.

FOS - hmm. Maybe the bank is right. This one is a tad abusive and a nutter. The bank appears to be telling the truth.

 

Or.

 

Bank - consumer is a crook. they are abusive and unreasonable. We've done nothing wrong.

Consumer to Adjudicator - I've tried everything to sort this out. The bank has done xyz, has not answered my letters, has called me 10000 times (phone log attached). I understand that [the law] says that they should not and this has all been very stressful and has cost me $12m in therapy.

FOS - Chap seems polite and reasonable. No evidence at all to support banks suggestions that consumer is abusive or unreasonable. Bank obviously off on one...

 

 

To be honest, saying the FOS is not fit for purpose and is rubbish is like saying that my Mini is no good at off roading. Of course it is rubbish if you are asking it to do something it can't or shouldn't. A Mini isn't rubbish because is can't off-road, because it is not designed to off-road in the first place.

[Kraken1]

Will these do?

 

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/75/75-consumer-credit.html

[Kraken1]

It was in fact you that said they go more on what they think is right rather than law, when you replied about the laws they dont follow!

 

Ok. Perhaps i should have been clearer:

 

They follow some law, but need only have mind of other law. Some law they are prevented from following.

 

I hope that is clearer...

 

 

If you go back through the posts, you will find examples of when they disregard evidence in favour of the financial institutions say so.

 

I won;t comment on cases if I don;'t have all the facts. I've had cases of mine discussed on watchdog and apart from not getting any credit (or even a mention), only half the story was told We cannot know what evidence was submitted. We don't know that evidence was disregarded, maybe the other evidence was better? It might be that the adjudicator did get it wrong. It happens. Maybe the evidence was ignored because it was not relevant or spoke to a point that fell outside of the remit of the FOS?

 

Again it was you who said, if your not nice to them dont expect them to be on your side! They should do what's right regardless of who's 'nice' to them!, you are insinuating that the adjudicator may be swayed by who is the nicest.

 

I stand by it. The post you are looking at was my rebuttal of the statement 'you have to be extra nice to the adjudicator, or you will stand no chance.' You don't have to be extra nice, just nice. And it is not about standing no chance, it is about improving your chances. take advantage of the benefit of the doubt. Human nature comes into life I am afraid and if you abuse someone they are going to be less inclined to help you. In this area many cases are subjective; is 100 comp or 150 the right decision?

 

I see this as fact. If you want to test this pop along to tescos, find an assistant and say 'oi. you there minion, yes, you, the incompetent one with bad skin. Don;t stand too close, you smell. Anyway, get me a bottle of shiraz now. and be quick about it'. See how far it gets you.

 

so if your not as polite as the bank you are ruled against?

 

I think you missed my point. If the bank says you are an arse, and you prove to the adjudicator you are an arse, the adjudicator is likely to rule that you are an arse.

 

I personally would be more inclined to find in favour with someone whos has been nice to me, but their job is to find on the facts, not the nicest!!!

 

Spot on. that is the way it should be, but it is about human nature. Imagine youself in their shoes, what have you got to lose? If you would find for the decent chap, and if they are all as untrained and incompetent as is claimed here, then surely you'd need to be insane not to take account of this?

 

yes they should find on the facts, but often a judgement call needs to be made. attitude counts. Look at the rankines for eg.

[Kraken1]

I think it would tax them as there is no loss to look at. They'd want to know why you wanted it and that would take them down a road that perhaps ends in a 'not our remit' sign.

 

Might work though. You need to consider that it will cost the creditor 450 though, so consider if this is fair to them...

[Kraken1]

Ish, and here is where the mind starts to melt, they can only make the judgement that a debt is unenforceable if they can rule on the enforceability of the agreement, which they cannot do therefore they cannot make that decision. What they can do is look at it all on the balance of probabilities: is it likely that there was a debt. If the answer is yes they can rule accordingly.

 

If you want that answer from them, you need a decision from a court first that the debt is unenforceable.

 

This comes back to one of the main themes here - the FOS is good for some stuff, not good for others.

 

 

 

Actually - clarification - they can rule on harassment issues alone, providing that no part of the case hinges on whether an agreement is enforceable or not. You can still be harassed against a valid and enforceable debt.

[Kraken1]

That has always struck me as strange. What is the point of a forced apology?

[Kraken1]

worth noting that FOS comp for inconvenience is a tad more generous than you might get from a court.

[Kraken1]

interesting.

 

Firstly, due to the size of this claim I am not sure fos is the right venue. This said, it is there now.

 

It may be that you had just got a bad adjudicator, but it might also be that you did not prove your losses adequately enough. I'm not privy to all of your evidence or your application so can't comment specifically. In general terms however this type of claim can be stupidly difficult to prove as you are trying to establish something that might or would have happened but didn't, as opposed to the normal course of events where you are claiming for something that happened that should not have.

 

A breach of contract alone does not normally entitle a claimant to compensation, there needs to be a proven loss to recover and this loss must be within the reasonable contemplation of the parties at the time the contract was agreed. It must be shown that the breach of contract caused the loss. In this instance that the six week (?) delay in opening was the clear cause of the loss. It might have been, but this will be difficult to prove, especially in a climate where Gordon Ramsey's profits are tanking and so many businesses are failing anyway. It is likely all a defendant would have to do is point to an established business failing and you are buggered.

 

Not an impossible case, but your evidence will need to be solid. Very solid. Do not get distracted by arguments over mistakes and breach of contract, these are not the issues. The only issue is proving the loss was an inevitable consequence of the breach of contract and that this was obvious to the bank.

 

If all you have said is that 'I opened late and this meant the business failed' then you are screwed. this is not going to be enough for fos, or a court I'd wager.

 

Do have an argument ready to rebut a suggestion that you affirmed the contract.

 

Good luck.

[Kraken1]

 

"the original intent was always for the loan to be drawn in installments, and that whilst the accidential omission of this condition from the loan agreement has resulted in a technical breach of contract on the part of the bank, this was not the real reason the opening of the restaurant was delayed or the business failed"

 

 

Based on this passage it appears that the heart of the matter is that the adjudicator made a finding of fact - s/he was not satisfied that the breach of contract caused the loss and this was the reason your claim failed. They were not satisfied you demonstrated a causal link between the two.

 

the adjudicator is free to make such a finding based on the evidence presented to him; it is not a finding of law but a finding of fact.

 

This will need to be the point you need to argue. Leave all the other stuff out, it will confuse the issue and dilute your core argument. Everything hinges on you showing that the loss what caused by the breach.

 

As noted above, this will be very, very hard. You will need lots of supporting evidence, your assertion that this was the case will not be enough.

[Kraken1]

I think the point with respect is not that. You have a contract from the bank who can only state one or the other. You cannot have a contract where the bank says 'Oh that's not what we meant and because of that we admit 'we' are in breach of contract'. That alone is the crux of the matter.

 

They admit it, they accept it however the adjudicator does not agree. From that we can simply say that a contract is not worth the paper it's written on and change it to 'we can do what we like, when we like'.

 

Once the bank freely admitted not a mistake but an acceptance 'they' were wrong that is cause enough to progress the matter to a satisfactory conclusion. The rest of if the business would have/have not suceeded is therefore a mute point. Something like the banks saying with hindsight they made errors and due to that they accept they made mistakes - in that case erm, huge ones! What rather surprises me is that doing staged loan disbursements makes the bank less in interest charges so one could call into conduct wheather that was an apt and professional financial decision initially.

 

Unfortunately, this is not the way the law works. A breach of contract alone means nothing, you can breach contracts left right and centre throughout all of July, it means nothing unless a loss has been caused by this breach. this is the dispute here - that whilst there was a breach of contract no loss has been suffered as a result of this.

 

It is not a mute point as to whether the business would or would not have succeeded (and why not), it is the entire crux of the case.

 

 

 

 

Turning to the argument, what you need to show:

 

or me to prove the breach caused the losses, i have to prove the stage payments delayed the build.

 

From what you have put above, it does not seem that this is disputed. It is accepted that there was a breach of contract and that this resulted in staged payments, which were in any event made late, and then this delayed the build.

 

the adjudicator has refused to discuss or raise this mater.

if he wont agree or disagree with wither the stage payments delayed the build, how can i prove my case?

 

It seems to be agreed to me, but this is not the crux of your case.

 

what did i have to gain with stage payments?

if there was a 6 month holiday period?

 

This is a red herring, I don;t think that this is relevant from what you have said.

 

 

He states " i have no way of knowing why the business failed but critical factors could include the location and competition as well as customer perceptions of service, quality and value for money"

 

Aha... for every post you put I get a clearer idea of the adjudicators reasoning. It appears to be the case that you did not satisfy him that the delay caused the business to fail. It is your job to prove this on the balance of probabilities. What evidence did you present to show him that the cause for the failure was the delay?

 

He doesn't know what caused the failure, but he is happy to take wild guesses, maybe it was the tiles or the carpet that the customers did not like, maybe the waitress had brown hair and the customers likes blonde hair, you could go on all night, it all speculation.

 

Exactly - he doesn't know. It is your job to prove to him that it was the delay that caused the failure. If you can't do this, you lose.

 

How long was the restaurant open? When did it actually shut?

 

 

The bank admits breach of contract, have you any idea why he is not recomending atleast "nominal damages £100"

 

Because this claim is essentially a commercial claim, the failure of a business and compensation for inconvenience etc is not available to business.

 

His bias towards the bank is more than blatant.

 

Based on what you have said, I cannot agree. It seems to me that he has been fairly straight - you didn't prove your case and he could make no other decision.

 

can you confirm if this is corect, the bank gets to see what i have writen but we don't see what they have said?

 

I don't know - I don't work for FOS. In my experience both parties get to see the reps made by the other, at least initially and to establish each side of the dispute. It can't go forever though and at some point the adjudicator has to just make a decision and stop swapping allegations. You might be able to SAR them to see what they said. To be honest, their reps don't seem to be relevant here. There does not seem to be any allegation that you waived the breach or similar, although this might be a problem if you take it further.

 

What evidence did you present to FOS? can you list it? at the very least I might be able to tell you what is missing.

Edited July 9, 2009 by Kraken1

[Kraken1]

did not the bank 'admit' they were at fault? Did they not admit they were in breach of contract?

 

Yes, but this is not enough to establish a claim in court, or in adjudication. It needs to be shown that the loss flowed from the breach. this is not the case here.

[Kraken1]

Nice case - it shows that you need to prove the loss.

 

When you applied for this business loan didn't you have to produce a business model including projected earnings to the bank before they agreed to the loan?

 

This would not show that the reason for the loss was caused by the delay though.