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Financial Ombudsman Service

 

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The United Kingdom's Financial Ombudsman Service is an ombudsman established in 2001 as a result of the Financial Services and Markets Act 2000 to help settle disputes between consumers and UK-based businesses providing financial services, such as banks, building societies, insurance companies, investment firms, financial advisers and finance companies.[1][2][3]

Contents

 

[hide]

 

[edit] Overview

 

The Financial Ombudsman Service can deal with complaints from consumers about most financial matters including, for example: banking, insurance, mortgages, pensions, savings and investments, credit cards and store cards, loans and credit, hire purchase and pawnbroking, financial advice, stocks, shares, unit trusts and bonds.

From November 2009 money-transfer operators also came under the ombudsman's remit.

But the consumer must first give the business they are unhappy with the opportunity to look into the complaint itself - before the ombudsman service can make a decision on the dispute [4].

[edit] Processes

 

The ombudsman makes decisions on the basis of what it believes is fair and reasonable in the particular circumstances of each case. In making decisions on individual complaints, the law [5][6] requires the ombudsman to take into account: relevant law and regulations; regulators' rules, guidance and standards; codes of practice; and (where appropriate) what he considers to have been good industry practice at the relevant time.[7]

[edit] Funding

 

The Financial Ombudsman Service is funded by the UK's financial services sector through a combination of statutory levies and case fees.[8][9] - paid by financial businesses that are regulated by the Financial Services Authority (FSA) or the Office of Fair Trading (OFT) and are automatically covered by law by the ombudsman service. The payment of these statutory levies and fees are not optional and are payable whether or not a complaint is upheld by the Financial Ombudsman Service. The service is free to consumers.

[edit] Impartiality

 

The Financial Ombudsman Service publishes the proportion of complaints it upholds in favour of consumers [10] ranging (in 2008/09) from 23% to 89%, depending on the financial product concerned. Across all complaints in 2008/09 the ombudsman found 57% in favour of consumers.

The ombudsman was set up by parliament to be an impartial and independent body. But like any referee, its decisions can come as a disappointment to whichever side doesn't hear what it wants to hear [11][12][13][14][15][16].

Independent commentators acknowledge that the ombudsman service is a valuable free service for consumers - although those who feel they have "lost" a complaint might understandably feel let down and want to question the ombudsman's impartiality [17][18]. Some consumers have questioned the amount of redress awarded by the ombudsman [19] while many firms expect the ombudsman to apply the compensation cap rigidly [20].

[edit] Complaints-handling performance of individual financial companies

 

The Financial Ombudsman Service publishes complaints data about the 150 or so named financial services companies that together make up 90% of the ombudsman's workload [21].

This data includes the number of new complaints against these companies and the outcome of complaints against each firm shown as the percentage upheld in favour of the consumer.

The uphold rate in favour of consumers (in the first half of 2009) ranges between 11% (for Zurich Advice Network Limited) and 95% (for Black Horse Limited). There has been extensive media coverage of these figures - and what they mean for the better and worse performing financial companies.

[edit] Budget and staffing levels

 

The entire ombudsman staff in 2007 (including substantial number of ancillary staff) was 960. They managed to handle 627,814 initial enquiries and close 111,673 cases which had been sent to for adjudication. Despite this incredible workload the BBC reported in September 2007 that the ombudsman planned to reduce staff numbers to 600 [22]. By December 2009 ombudsman staff had increased to over 1,000 - reflecting a substantially increased workload approaching almost 200,000 cases.

This shows how staffing levels at the Financial Ombudsman Service fluctuate - as does the budget year-on-year - to match the volume of disputes it is dealing with. The number of staff required - and forecasts for complaints volumes and workload - are consulted on publicly each year in the ombudsman's corporate plan and budget [23][24].

[edit] Status of Ombudsman decisions

 

More than 90% of the disputes that the Financial Ombudsman Service resolves are settled at earlier informal stages, through processes such as mediation and conciliation. An ombudsman's decision is the final stage of the Financial Ombudsman Service's process [25]. If the consumer with the complaint accepts a final decision, it is binding on both parties and enforceable in court [26][27].

But if the consumer chooses not to accept an ombudsman's decision, their legal rights remain unaffected and they can take the matter to court instead - subject to any requirements set by the courts. However, independent commentators generally recommend that consumers should use the ombudsman service rather than the courts [28][29][30][31] as the outcome of court cases can be unexpected and disappointing [32].

However, there have been judicial reviews against the ombudsman, brought by financial services companies who have to accept the ombudsman's decisions which are binding in law [33]. The difficulty in winning a judicial review is that the Financial Services and Markets Act 2000 [34] which led to the establishment of the Financial Ombudsman Service requires the ombudsman to make decisions "by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case".

In a judicial review of an ombudsman's decision brought by an independent financial adviser (IFA), the judge further clarified that the ombudsman is "free to make an award different from that which a court applying the law would make" [35]. This means that a litigant has to surmount the very high hurdle of proving that the entirety of the ombudsman's decision was so unfair that no right minded person would have made a similar decision.

[edit] Accountability

 

The board of the Financial Ombudsman Service [36] is appointed by the Financial Services Authority - and the appointment of the chairman is approved by HM Treasury. The board's role includes guarding the independence of the ombudsman - from undue influence by the financial services industry and trade bodies, regulators, consumer groups and government. Board members are non-executive - they have no involvement in individual complaints.

The ombudsman is held accountable to the general public via HM Treasury who are in turn have to account to The Parliamentary Treasury Select Committee who can be contacted by the consumer's MP.

The Financial Ombudsman Service is not currently covered by the Freedom of Information Act as technically it is not a "public body" - it is a dispute-resolution service resolving complaints in private. But there are proposals to extend the Act to cover the ombudsman service, which already largely acts as if it were covered [37].

Consumer satisfaction surveys - and surveys of businesses covered by the ombudsman - are conducted by the Financial Ombudsman Service on an ongoing basis. The results are published annually in the ombudsman's annual review [38][39].

Customers of the Financial Ombudsman Service - both consumers and businesses - can seek redress from the Independent Assessor [40] if they are unhappy with the level of service they have received [41].

The Independent Assessor is appointed by the board of the Financial Ombudsman Service. The current incumbent - Michael Barnes - was formerly the chairman of the British and Irish Ombudsman Association, the Legal Services Ombudsman and a non-executive board member of the Financial Ombudsman Service.

He was made interim Independent Assessor on the retirement of Sir Edward Osmotherly in April 2002 and his position was then made permanent. Although the Independent Assessor is not subject to the rules of the Office of Commissioner for Public Appointments, the OCPA's rules require that "a department cannot select a person as an independent assessor if that individual already holds a post on one of the public bodies it sponsors or has left such a post within the past 12 months" [42].

The Independent Assessor reports formally to the board of the Financial Ombudsman Service - which publishes his report in full each year as part of the Financial Ombudsman Service's annual review [43][44][45][46][47][48].

Mr Barnes' track record so far is to uphold in part or fully between 10-15% of complaints about the ombudsman's service quality.

[edit] Triennenial reviews

 

The non-executive board of the Financial Ombudsman Service commissions three-yearly external reviews of the service.

The first review - in 2004 - involved a six months' assessment of the operations of the ombudsman carried out by Bristol University's Personal Finance Research Centre. The review - "Fair and reasonable: an assessment of the Financial Ombudsman Service" [49] - included a detailed overview of the ombudsman service's case-handling procedures and systems. It examined the organisation's performance in terms of quality, consistency, process and value. The review concluded with the "overall view that the Financial Ombudsman Service is a thoughtful, well-managed organisation that is doing a good job under difficult circumstances."

In 2007/08 the Financial Ombudsman Service was the subject of a second triennial review - by Lord Hunt, the terms of reference of which were set by the non-executive board of the Financial Ombudsman Service [50].

Lord Hunt - a leading financial-services lawyer, president of the Chartered Insurance Institute and former government minister - was commissioned in late 2007 to conduct an "independent" [51] review, focusing on the openness and accessibility of the Financial Ombudsman Service[52].

The review allowed for a three-month submission period between 16/10/2007 and 16/1/2008. Corporate submissions were published on Lord Hunt's review-website [53].

Complaints have been made that consumer submissions were either not published or were edited before publication [54][55]. However, Lord Hunt had already explained that he would generally not publish individual consumers' submissions - because of the details they frequently contained relating to individual personal and financial circumstances.

Lord Hunt's report was published on 9 April 2008 [56]. Lord Hunt concludes that: the ombudsman's approach to settling disputes on the basis of "what is fair and reasonable" is essential – to underpin the ombudsman's credibility as an informal non-legalistic alternative to the courts; charging consumers to access the ombudsman – as some have proposed – would comprehensively damage accessibility; there is no convincing case for an external appeals mechanism – on top of the ombudsman service's current internal appeals procedure; there should be no change to the ombudsman's current approach to formal hearings (holding them only where absolutely necessary – as most disputes can be decided on the basis of paper evidence); there is no requirement for a small firms' division – as long as the ombudsman's Smaller Businesses Taskforce continues to focus on the particular needs of small firms; there should be closer monitoring and regulation of the activities of claims management companies; there should be greater openness – in relation to the ombudsman's approach, the relationship between the ombudsman and the regulatory system, and the performance of individual financial services businesses in handling customer complaints [57][58].

Lord Hunt's review also includes 73 specific recommendations for the ombudsman service, including: significantly increasing investment in pro-active communications – including TV advertising, consumer campaigns and strategic partnerships with government and others; commissioning a new consumer-friendly brand-name instead of ombudsman; offering a freephone service (instead of the current subsidised 0845 number) and extended opening hours; appointing "case advisers" – working alongside adjudicators and ombudsmen – to guide the most vulnerable consumers through the complaints-handling process; launching an awards scheme to identify and reward businesses who handle complaints well – matched by a "wooden spoon" for the worst performers; publishing comprehensive information on all aspects of ombudsman policy and methodology (but not decisions on all cases) – as well as benchmarked data on how individual financial services businesses handle complaints; and placing all the ombudsman service's formal communication with the regulators on the public record.

The Financial Ombudsman Service has published updates on its accessibility and openness projects - following Lord Hunt's recommendations [59]. The ombudsman service has also set up a discussion group - made up of financial services practitioners and representatives from consumer organisations - to help with ongoing plans to develop and implement accessibility and transparency initiatives [60].

Lord Hunt says of the appointment of the Independent Assessor that the Financial Ombudsman Service should "continue to ensure that the appointment of the Independent Assessor follows an openly advertised "Nolan"-based process ... The transparent approach adopted for his appointment further reinforces confidence in his role and should be maintained for future appointments..." This could convey a misleading impression that the current Independent Assessor's appointment was both subject to the Nolan recommendations and covered by the Office of the Commissioner for Public Appointments Code of Conduct.

The Financial Ombudsman Service has confirmed that its next external review will be carried out by the National Audit Office (NAO) and will look at "value for money" and efficiency.

[edit] Criticism

 

 

  • There are severe delays in dealing with consumer complaints [61][62][63][64][65][66][67]
  • Questions as to their impartiality[68] due to the manner in which they're funded and the financial services and/or career civil servant backgrounds of their board.[69][70]. It is noticeable that more than 70% of cases brought by consumers to the FOS are deemed to be outside the jurisdiction of the FOS.[71]. Of the minority of cases which have been found in favour of the consumer, there have been complaints that the awards are inadequate.[72]
  • There is no effective way to challenge an ombudsman's decision.[73] Consumers approach the FOS rather than the Courts because they are attracted by the way in which the FOS advertises itself as a free, timely, impartial alternative to the Courts. What is not realised is that the ombudsman's decisions merely have to take note of, as opposed to adhere to the law. Whilst the consumer is not obliged to accept the decision of an ombudsman, if the consumer disagrees with what is in effect the ombudsman's personal view on the case the only way in which they could have this overturned is to apply for a judicial review. Since that method would be much more expensive in most cases than lodging particulars of claim for the original allegation, there hasn't been a judicial review brought by a consumer against the FOS. However, there have been judicial reviews by financial services companies who have no choice but to accept the ombudsman's decision as that is a requirement of them being allowed to trade. The difficulty in winning a judicial review is that the Financial Services & Markets Act[34] which led to the establishment of the FOS allowed a decision to be made "by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case". In an IFA-requested judicial review of an ombudsman's decision, the judge further clarified that the ombudsman's "free to make an award different from that which a court applying the law would make"[74]. This means that a litigant has to surmount the very high hurdle of proving that the entirety of the ombudsman's decision was so unfair that no right minded person would have made a similar decision.

 

  • Disillusionment with the FOS has led to cases being taken to Court instead.[75]

 

  • Financial advisers are generally incensed that the processes used by the FOS appear to be in violation of their Human Rights. Specifically, their rules enable them to override statute and ignore the 15 year longstop enshrined within the Limitation Act 1980. There is no 15-year "long-stop" rule in the complaints-handling rules made under the Financial Services and Markets Act and the Consumer Credit Act. In its policy statement published in January 2003 the Financial Services Authority (FSA) set out why there is no 15-year limitation period in the complaints-handling rules, stating: "We do not consider it is in the interests of consumers to rule out the possibility of complaints being dealt with outside the 15-year period that would apply to court cases. Nor do we consider this necessary to prevent hardship to firms."

[edit] See also

 

 

[edit] References

 

 

  1. ^ "BBC guide to making a financial complaint". 2002-01-08. BBC NEWS | Programmes | Working Lunch | Making a financial complaint. Retrieved 2010-01-04.
  2. ^ "Key facts about the Financial Ombudsman Service". about the Financial Ombudsman Service.
  3. ^ "Which? - online help for people making a complain". http://www.which.co.uk/reports_and_campaigns/money/campaigns/payment_protection/make_a_complaint/ppi_rejected_559_124086.jsp.
  4. ^ "MyFinances - complaining: how to get your way with financial services". Personal finance features and guides - myfinances.co.uk.
  5. ^ "Financial Services and Markets Act 2000 (UK)". Financial Services and Markets Act 2000 (c. 8).
  6. ^ "FSA Handbook of Rules and Guidance, Dispute resolution - complaints (DISP)". FSA Handbook - Full Handbook.
  7. ^ Consumers havent lost faith in the Financial Ombusman Service
  8. ^ How is the Financial Ombudsman Service funded
  9. ^ FSA Handbook of Rules and Guidance
  10. ^ Financial Ombudsman Service annual review 2008/09 - outcome of cases
  11. ^ Sunday Telegraph - We should stop throwing stones at the ombudsman
  12. ^ Report to the European Parliament's EQUI inquiry by Lord Neill on behalf of the Equitable Members Action Group, a pressure group representing dissatisfied Equitable Life investors
  13. ^ MP questions in Parliament relating to the Financial Ombudsman Service
  14. ^ Mortgage Adviser - The Bastion of financial fairplay
  15. ^ The Times - Can you trust the Ombudsman?
  16. ^ The Herald - Banking complaints justified
  17. ^ Which? - Financial Ombudsman Service is the unsung hero
  18. ^ The Observer - A garland to the Financial Ombudsman Service
  19. ^ Evidence for submission to Lord Hunt's Review of the Financial Ombudsman Service
  20. ^ Mail on Sunday - Compensation rules wrecked my pension
  21. ^ complaints data relating to named financial companies
  22. ^ Financial Ombudsman to cut staff
  23. ^ Financial Ombudsman Service corporate plan & budget
  24. ^ The Guardian - Ombudsman overrun with mis-selling complaints
  25. ^ Financial Ombudsman Service - frequently-asked questions
  26. ^ ThisIsMoney - Resolving financial disputes
  27. ^ The Times - How to lodge an effective complaint
  28. ^ Daily Mail - Ombudsman quicker on bank charges
  29. ^ The Mirror - Claims engulf courts
  30. ^ Which? - Hunt Review supports Which? call for ombudsman to remain free to consumers
  31. ^ BBC - Banks backing down over charges
  32. ^ BBC - Lloyds wins second charges case
  33. ^ The Times - City fears all-powerful Ombudsman
  34. ^ a b Financial Services and Markets Act 2000
  35. ^ Financial Ombudsman decisions - beyond challenge?
  36. ^ Financial Ombudsman Service - board members
  37. ^ Financial Ombudsman Service and Freedom of Information
  38. ^ Financial Ombudsman Service - how consumers rate the service
  39. ^ Financial Ombudsman Service - how businesses rate the service
  40. ^ The Independent Assessor and his terms of reference
  41. ^ The Financial Ombudsman Service - service standards
  42. ^ Office of Commissioner for Public Appointments Code of Conduct
  43. ^ The Independent Assessor's annual report 2002/03
  44. ^ The Independent Assessor's annual report 2003/04
  45. ^ The Independent Assessor's annual report 2004/05
  46. ^ The Independent Assessor's annual report 2005/06
  47. ^ The Independent Assessor's annual report 2006/07
  48. ^ The Independent Assessor's annual report 2007/08
  49. ^ "Fair and reasonable: an assessment of the Financial Ombudsman Service"
  50. ^ The Lord Hunt Review website
  51. ^ Dictionary definition of the word independent
  52. ^ Lord Hunt of Wirral engaged to lead "independent" review of the Financial Ombudsman Service
  53. ^ Lord Hunt's review of the Financial Ombudsman Service
  54. ^ Foundation for Information Policy Research (FIPR) - comments on FIPR's submission to Lord Hunt's review
  55. ^ Foundation for Information Policy Research (FIPR) - FIPR's submission to Lord Hunt's review, as published on Lord Hunt's review-website
  56. ^ Opening up, reaching out and aiming high - an agenda for accessibility and excellence in the Financial Ombudsman Service
  57. ^ PublicInvolvement's blog on Lord Hunt's review of the Financial Ombudsman Service
  58. ^ David Worsfold's blog on Lord Hunt's review of the Financial Ombudsman Service
  59. ^ summary of the ombudsman's accessibility initiatives
  60. ^ [taking forward the ombudsman?s accessibility and transparency agenda taking forward the ombudsman’s accessibility and transparency agenda]
  61. ^ Justice grinds to halt as complaints pile up The Guardian October 23, 2004
  62. ^ The Endowment Justice Blog
  63. ^ BBC NEWS | Programmes | Moneybox | Fighting for fairness Money Box Investigates: Fighting for Fairness
  64. ^ The Ombudsman cost me £20000 - This is Money 23/01/2006
  65. ^ A flood, and then the real nightmare began
  66. ^ Financial complaints rise by 30%
  67. ^ Who said the customer is king?
  68. ^ Lord Niell's report to the European Parliament's EQUI inquiry
  69. ^ Financial Ombudsman Service board
  70. ^ Questions in the Houses of Parliament regarding the Financial Ombudsman Service
  71. ^ Financial Ombudsman Annual Review
  72. ^ Evidence for submission to the Lord Hunt Review of the Financial Ombudsman Service
  73. ^ City fears all-powerful Ombudsman
  74. ^ Financial Ombudsman decisions: beyond challenge?
  75. ^ Public turns away from ombudsman service

 


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style="text-align:center;"> Please note that this topic has not had any new posts for the last 3431 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

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