Financial ombudsman comes under fire as insider reveals litany of bad practices

[rdm2006]

Iaineynic

 

The £300.00 is a derisory sum but...... the FOS rarely award much more in cases of distress.

 

Phil

 

This is why banks etc push you to take your complaint to fos because thay know that any comp will be derisory

[ieuanMr]

I think you have done a marvellous job in winning with the FOS. Unfortunately they do not pay much by way of damages. You have won but you do not have to accept the award. You may refuse their descision and then go to the small claims court for harrrasment. As long as your claim is under £5000.00 the bank cannot claim costs.

 

I recently began being harrassed by NatWest and clompalined to the FOS, and as I was already in contact with the FOS about PPI I was able to pohone through and the harrassment stopped.

 

If you look at Irresponsible Lending OFT1107 March 2010 Section 7.10 and 7.11 It is Irresponsibl;e to make undue, excessive or otherwise inapropriate ue of statututay demands when a borrower falls into arrears.

7.11 Failing to suspend the pursuit ofr recovery of a debt from a borrower in default or arrears diffculty....

 

This only related to borrowing sunder the consumer credit act and there are differenr rules for mortgage arrears.

 

I hope this has helped in some small way.

[citizenB]

eve Citizen i have just received a e mail via consumer forum from Rhys Williams, i don't see it here so i am guessing you have deleted it or otherwise how did i come to receive this e mail ?

 

it was an advert patrick so i dont blame them for removing it

 

Yes, it was SPAM so was removed.

[rdm2006]

Yes, it was SPAM so was removed.

 

The cheek of it lol

[red-ed]

I recently used the FOS - it was a complete waste of time/money and a national disgrace - the adjudicator was incompetent and bias toward the bank - i have complained about the process, the adjudicator etc and based on what i have read on CAG, there is little hope they will recognise their failings and put matters right.

 

Ed

Edited August 15, 2012 by red-ed

[nyvian]

OFT.....They're a complete waste of YOUR time. They said they were satisified that Santander "tried" to resolve & help us to resolve the matter. HOW! The harrassed ME with 17-20 automatic calls per day. Press 1 if you are so&so.....PRESS 2 if not, so I pressed 2 the the auto voice said "ask Mr. so+so to call us! No number nothing!!.........how can that be helping. Kick out OFT not worth the bankers money!! Now going to send a letter ( your template.HUGE THANK you) asking them to cancel the reminder of the debt due to hardship harrassment they put me through & the hardship they inflected on me. Wish me luck. If not small claims court.

 

Thanks for all the templates & help

N

[sweetjane]

I agree with rdm above. Complain to your MPs now about the FOS. The Finance Bill is going through Parliament now and needs as much tight enforcement as poss. The way the FOS uses the BBA Banking code to decide whether a bank has behaved properly is a compete joke and an insult to consumers. SJ

[red-ed]

I have a section 75 case with FOS that requires the application of basic consumer law - the FOS told me he would not look at SOGA (when my solicitor gave me sections to quote) and it was only 'opinion' that counted - his 'opinion' cut across basic consumer law and ignored my basic rights. When i asked him to explain the basis for his 'opinion' he said it was his 'opinion' he refused to comment further. My solicitor and I were shocked so i complained and i am waiting for a reply - if it turns out they are allowed to act above and even make consumer law i will complain to my MP because this is unconstitutional and effectively encourages banks to ignore basic consumers legal law/rights.

 

Ed

Edited August 17, 2012 by red-ed

[citizenB]

I have a section 75 case with FOS that requires the application of basic consumer law - the FOS told me he would not look at SOGA (when my solicitor gave me sections to quote) and it was only 'opinion' that counted - his 'opinion' cut across basic consumer law and ignored my basic rights. When i asked him to explain the basis for his 'opinion' he said it was his 'opinion' he refused to comment further. My solicitor and I were shocked so i complained and i am waiting for a reply - if it turns out they are allowed to act above and even make consumer law i will complain to my MP because this is unconstitutional and effectively encourages banks to ignore basic consumers legal law/rights.

 

Ed

 

Some information from rebel11 for you.

 

http://fsahandbook.info/FSA/html/handbook/DISP/3

 

http://fsahandbook.info/FSA/html/handbook/DISP/3/6 (3.6.4)

 

In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account

1) relevant:

(a) law and regulations;

(b) regulators' rules, guidance and standards;

© codes of practice; and

(2) (where appropriate) what he considers to have been good industry practice at the relevant time.

[Mike_hawk]

Hmmm........ i seem to remember posting on this subject quite some time ago, and it's interpretation of 1a is to allow the court to decide

 

Do bear in mind an adjudicator or ombudsman can be ordered to attend as witness

 

 

In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account

1) relevant:

(a) law and regulations;

(b) regulators' rules, guidance and standards;

© codes of practice; and

(2) (where appropriate) what he considers to have been good industry practice at the relevant time.

[lenamartell]

Our complaint went on for around 3 years in all. Most of the delays were down to FOS –when we would post off our case and wait five or six months (or more) although two delays were to a medical condition that flared up and incapacitated me for several weeks. At one stage, I had managed to write up our next submission and we posted it – and it crossed with rather a nasty ‘reminder’ from adjudicator that they had waited several weeks – but couldn’t give much longer!

If you haven’t already, SAR them! You will find they will redact anything embarrassing to them, but you might also have your own evidence made stronger by it. Our case was complicated. We had also alleged fraud and had been gathering evidence. The Ombudsman’s file actually contained some rock solid proof of our allegations!

The first Adjudicator emailed the ‘business’ (Insurance) and told them she was mindful to find in our favour. ‘They replied stating that they’d written a draft and attached for her. They told her to ‘tweak’ as needed and send to us asap. Their draft (surprise, surprise) said the adjudicator could not uphold our complaint.

The adjudicator must’ve argued too much with them – as the next thing we knew – she was replaced! Her replacement was happy to ‘tweak the draft’

At the final stage – we submitted a two part legal argument. We kept it as a ‘legal’ argument – proving lies, providing evidence and confirming fraud. Our basis of argument was that insurers had paid a fraudulent builder, without our knowledge or agreement and without work being completed. Their Loss Adjuster had lied throughout both at the cause of damage and the appointment of workers.

The ‘Ombudsman’ told us she couldn’t find in our favour – as we had received a cash settlement! Not Remotely True! – and we were not allowed to even tell her she’d made an such an astounding error!

We are now to lodge Civil Actions against ‘the business’ and we still hope our evidence leads to criminal charges.

Sadly, the FOS are batting way out of their comfort zone and do not have the competence to deal with anything ‘big’ nor are they brave enough to argue against ‘the business’. If the case is simple fine – anything else, save your time (and health) and go straight to court. If you can keep the case below £5,000 claim (a Judgement is a Judgement, in our book), estimate on the court docs that you expect it to last around 20 mins only and, if you can, request the case stays at your local court because... (try think up a good reason – or the ‘defendant’ gets to pick where the case is held.)

Wish I could post more without giving identity away, or boring you.

Ultimately, you should remember that FOS are a limited company. They have a rather frequent changeover of ‘Chairs’ etc., who all seem highly connected in the banking / insurance world.

Edited August 18, 2012 by lenamartell
included a previous omission

[red-ed]

Thank you - in my case - the Adjudicator used 'we are not court' to exclude all SOGA and associated rights, and then then quoted shop policy as reason for rejecting my claim. I think this is case of incompetence plus a blind refusal to be corrected, even by a qualified lawyer - and this has become a trend, and is one the reasons everyone is so frustrated with the FOS.

 

FYI - i have accused the FOS of being unconstitutional - because their decision actually cuts across the law

[red-ed]

A further note - 'the ombudsman will take into account' - the adjudicator said he was not required to follow law - does this mean adjudicator is not required to follow the above list but Ombudsman is ?

[Mike_hawk]

A further note - 'the ombudsman will take into account' - the adjudicator said he was not required to follow law - does this mean adjudicator is not required to follow the above list but Ombudsman is ?

 

Following link may assist

 

http://www.legislation.gov.uk/ukpga/2000/8/schedule/17/paragraph/1

 

........ and the current panel

 

http://www.financial-ombudsman.org.uk/about/panel-ombudsmen.html

[Mike_hawk]

Andrews v SBJ may also provide some insight, para's 24 thru 27 make for interesting reading;

 

http://www.bailii.org/ew/cases/EWHC/Ch/2010/2875.html

 

 

 

24. And by 3.5.9, it is provided that:

 

"The Ombudsman may:

(1) exclude evidence that would otherwise be admissible in a court or include evidence that would not be admissible in a Court …"

25. In R (Heather Moor & Edgecomb Ltd) v Financial Ombudsman Service Ltd [2008] EWCA Civ 642, it was recorded as being common ground that Article 6 of the European Convention on Human Rights and Article 1 of the First Protocol thereto applies to the activities of FOS: see paragraph 42 of the lead judgment in that case. Both Counsel before me expressly accepted that the concession in Heather Moor had been rightly made and was made likewise in this case. In that case, the Court of Appeal said, at paragraph 44:

'A1P1 must be read alongside Article 6, which envisages decisions of courts or tribunals in civil proceedings holding a respondent liable to a claimant. A determination by a court or tribunal complying with Article 6 requiring a respondent to pay a sum of money to a claimant does not infringe the respondent's rights under A1P1. Provided the scheme established under the 2000 Act satisfies the requirements of "law", and satisfies the requirements of Article 6, no question of incompatibility arises.'

An attack based on incompatibility was advanced before the Court of Appeal but was rejected by that Court for the reasons summarised in paragraph 49 of the lead judgment, which was to the following effect:

'Does the scheme established under the 2000 Act, interpreted in accordance with its natural meaning, comply with these requirements? In my judgment, it can and does. The ombudsman is required by DISP 3.8.1 to take into account the relevant law, regulations, regulators' rules and guidance and standards, relevant codes of practice and, where appropriate, what he considers to have been good industry practice at the relevant time.

He is free to

depart from the relevant law, but if he does so he should say so in his decision and explain why

. The other matters referred to in this rule are matters that a court would take into account in determining whether a professional financial adviser had been guilty of negligence or breach of his contract with his client. Again, if the ombudsman is to find an advisor liable to his client notwithstanding his compliance with all those matters, the ombudsman would have to so state in his decision and explain why, in such circumstances, assuming it to be possible, he came to the conclusion that it was fair and reasonable to hold the adviser liable. In these circumstances, I consider that the rules applied by the ombudsman are sufficiently predictable. All the matters listed in DISP 3.8.1 are formulated or ascertainable with sufficient precision. So far as guiding the conduct of financial advisors are concerned, provided that they comply with "the relevant law, regulations, regulators' rules and guidance and standards, relevant codes of practice and, where appropriate, … good industry practice", they can be assured that they will not be liable to their client in the absence of some exceptional factor requiring a different decision.

Lastly, the common law requires consistency: that like cases are treated alike. Arbitrariness on the part of the ombudsman, including an unreasoned and unjustified failure to treat like cases alike, would be a ground for judicial review.'

26. Rix LJ in a concurring judgment said this at paragraph 80:

'The effect of these provisions is not to leave the Ombudsman's determination to his entirely subjective views, as though he was operating according to the length of his foot, so to speak. That, it seems to me, is not the effect of the statutory language which defers to the "opinion of the Ombudsman". Rather, that is typical language to emphasise that the decision is for the Ombudsman, not for a judge. However, the Ombudsman remains amenable, through the ordinary process of judicial review, to a challenge on such grounds as perversity or irrationality. That was not in dispute. It was the view of Stanley Burnton J, as he then was, in

R v. FOS Ltd ex parte IFG Financial Services Ltd

[2005] EWHC 1153 (Admin)

, unreported 19 May 2005, at para 13.

That is not the same, however, as saying that the Ombudsman is bound to apply the common law in all its particulars. He is, after all, dealing with complaints, and not legal causes of action, within a particular regulatory setting. Rather, he is obliged ("will") to take relevant law, among other defined matters, into account.'

 

27. These conclusions, which I have set out at some length, are relevant to the question whether FOS is to be regarded as a tribunal for the purpose of the merger doctrine.

[citizenB]

It certainly does make very interesting reading, thanks Mike

[Mike_hawk]

Hi Cb

 

The Fos maintain records of speaches for previous incumbents to the Chief Ombudsman position

 

There's an old [2001] Walter Merricks ramble at the following link, 'Conclusions' at the footer of the page pretty much sets out its stall and where it believes it delivers purusant to Article 6

 

http://www.financial-ombudsman.org.uk/news/speech/chantrey-vellacott-dfk.htm

 

'We do not have to pretend to "find" what the law is. We unashamedly make new "law". '

[red-ed]

Thank you Mike - i wonder if the FOS know there role as well a you !

 

I will use the explanation and consistency points below to make my argument - and see where i end up - i don't expect the FOS own up to mistakes and put things right - its not in their nature - but we will see....

 

Ed

[red-ed]

I just read the FOS mandate listed below - i don't mind if the FOS improve or refine existing law - but it wrong that an adjudicator with no legal skills is deliberately ignorant of law and then makes decisions that cut across existing and basic law. It also devalues our consumer legislation because it confuses traders and consumers alike.

 

Ed

[Mike_hawk]

Hi Red-ed

 

Over 1 million complaints handled by 1,178 staff last year........... hmmm

 

Assume a very conservative 40 hour week, 5 weeks annual leave - total of 2,214,640 business hours. Gives a mean average slightly in excess of 2 hours per complaint. Could anyone honestly believe they are applying the necessary time to every complaint?

 

http://www.financial-ombudsman.org.uk/news/pdf/NAO-report-2012.pdf

[red-ed]

Good point - if they were being properly managed, and put more effort into getting it right first time so people feel that they have be dealt with properly and fairly, i am sure complaints would require less time, and the banks etc, would have more respect the FOS.

 

Ed

[rdm2006]

in my view "Respect" and "FOS" just shouldn't be put together in the same sentence at the moment.

[cher69cher69]

In this country the laws justice system and the regulators are a farce!

 

A complete and utter joke!

 

We have courts where judges do not follow laws set out in the statute books because it is accepted that the judges merely give their interpretation of them, for godsake, so what is the point of having laws in the first place if they are not black and white?

 

Is it to confuse the general public. In other words make it so complex that the average person can not make head not tale of any of it, so they can not argue their decisions.

 

The same applies to the FOS piles of rules laws and guidelines which they can decide how and when to apply them if they bother applying them at all. Again with a handbook that is so long winded and the rules to which the ombudsman must follow are so hard to understand how on earth is anyone supposed to ever be treated fairly and equally.

 

Not a fricking hope on earth!

 

once again the general public suffer because their are no set rules that must be complied with, it is all just wishy washy and no one knows were they stand the businesses included.

 

The whole system needs scrapping and simplyfying and maybe they could include the general public with their input into the subject that seems logical and fair to me.!!!!!!!!!!

 

I will keep dreaming.!

[questioner]

I received more compensation recently as one adjudicator had said the PPI being claimed was not PPI - he was wrong and when I proved it they said sorry and coughed up...;-)

[caro]

Well done questioner. Just goes to show you shouldn't just accept the first response.