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Nic Cicutti: FOS staff are more than just ‘less qualified mortals’

Nic Cicutti

Three or four years ago, stretched out on the couch with a beer after a day’s graft, I found myself flicking through endless TV channels in search of something vaguely watchable.

A documentary popped up about an English neurosurgeon who regularly flew out to the Ukraine to perform brain operations on poor people in the region, using Bosch DIY drills and other primitive equipment.

Not only was the film highly watchable, its portrayal of Henry Marsh, the surgeon in question, was extraordinarily powerful. So when Marsh’s book Do No Harm came out a year or so ago, I bought and devoured it almost overnight.

The book is astonishing. Incredibly readable and almost lyrical, it examines, though not exclusively, Henry Marsh’s own surgical blunders through the prism of humility and an admission of personal human frailty.

Therefore I fully share Nick Bamford’s admiration for Do No Harm. Where he and I part company is over Nick’s use of Marsh to justify, in an article for Money Marketing last week, his attack on the Financial Ombudsman Service staff for not being as qualified as those they supposedly sit in judgement of.

Nick cites an incident where a case review is managed by NHS staff whose qualifications and technical knowledge are not to Marsh’s own standards. “Can it really be right the performance of an experienced, competent and qualified surgeon is judged by those without such attributes?”, Nick asks.

What Nick really means becomes apparent later on, when he explains how a friend of his wrote to the FOS to ask whether its adjudicators had the same level of qualifications as he did.

Nick’s friend wrote: “I must (and do) hold advanced level pension qualifications before being able to offer advice in this complex area. I would therefore, as a minimum, expect anyone adjudicating on complaints in this area to be similarly qualified. How many (and what percentage) of FOS staff involved in this area hold the CII AF3 or CII G60 pension qualifications (or equivalent)? And is AF3/G60 a minimum FOS qualification requirement for staff adjudicating in this complex area?”

In fairness to him, Nick quotes the FOS response to his friend’s request: as the service is not there to advise but to help settle disputes between clients and financial services businesses, the requirement for staff to have specific qualifications is not mandatory. Nor is the FOS able to provide him with percentages of staff with the qualifications his friend deems so important.

Nick somehow finds this reply to be “condescending”. I beg to differ: I found it polite and calm in the face of a bumptious failure to understand precisely how the FOS works.

As one who has complained to the FOS over a general insurance claim, let me enlighten him. The first stage involves an adjudicator gathering evidence and, where possible, settling a complaint informally.

There are some 2,000 adjudicators, all with different knowledge and expertise. In every case, the FOS aims to try to develop the skills of those adjudicators, encouraging them to pass exams relevant to their areas of work in the service.

If the adjudicator cannot resolve a complaint, the issue is passed on to an ombudsman. A glance at the descriptions of the 200-plus ombudsmen on the FOS site reveals a vast range of extremely high-level experience.

My guess is when a FOS investigation into a “complex defined benefit to defined contribution transfer complaint” takes place, if you do not think you have the technical expertise necessary or you do not believe any colleague with knowledge or skills in this area is there to help you, no one is going to ram that case down your throat.

Which may explain why of the many views expressed about FOS decisions – more than 200,000 a year – almost none involve complaints about a lack of technical skills.

Which brings me back to Henry Marsh. His book involves a lacerating self-examination in which he owns up to all manner of reasons for his errors, including a petty argument with a colleague after which he admits: “I was not in the right state of mind to carry out such dangerous and delicate surgery.” In this case, the operation left a patient with a half-paralysed face.

What makes the book so powerful is actually that Marsh self-chronicles not only his technical errors but his hubris and, yes, also his arrogance and dismissiveness about the input supposedly less skilled NHS colleagues can give to help prevent similar errors in future.

As it happens, a very good friend of mine is an investigator for an NHS trust, tasked with carrying out analyses into serious incidents such as these. He is not a surgeon but a clinical nurse of many years’ standing, able to call on other medical specialists for technical advice.

In Marsh’s exalted world, mistakes are made and lessons learned without recourse to support and guidance provided by less-qualified mortals. In the real world the issue is never about qualifications or their absence but about reaching considered assessments after careful analysis of all the facts – both within the NHS and at the ombudsman service.

Should Nick or his friend ever need to call on the services of a surgeon, they would do well to remember that.

Nic Cicutti can be contacted at nic@inspiredmoney.co.uk. Follow him on twitter @NicCicutti

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Comments

There are 11 comments at the moment, we would love to hear your opinion too.

  1. A well reasoned article, Nic, though there’s no getting away from the legitimacy of advisers’ resentment at being judged by people who’ve not had to attain the same level of qualifications as we have and who have therefore never actually done our job.

    You cite the example of a friend of yours who’s an investigator for an NHS Trust and not as highly qualified as those who’s alleged failings he’s tasked with investigating, but who is “able to call on other medical specialists for technical advice”. On which financial advising specialists, with practical experience, are adjudicators within the FOS able to call for technical advice?

  2. Tim tim@pagerussell.co.uk 20th November 2015 at 12:04 pm

    I would also recommend reading or listening to anything by Atul Gawande (Checklist Manifesto or the 2014 Reith Lectures).

    Financial advice has become an ever more complex problem. Ever-higher qualifications and longer training are not the answer.

  3. Hi Nic

    I am glad we both agree on what a wonderful story Heny Marsh had to tell. I found it inspirational a roller coaster of highs and lows and emotional turmoil.

    My problem is that I am fed up of so many people with out the skills, experience and yes qualifications, sitting in judgement over those of us who have oodles of skils, experience and qualifcations. None of those three things by the way are mutually exclusive a competent financial planner these days needs tons of each.

    I am uncomfortable with your belief that Ombudsman make decisions based on a careful analysis of all the facts. The absensce of specialist qualifications, specialist skills and specialist experience makes the understanding of those “facts” at best incomplete.

    Why don’t we just remove your Clinical Nurse friend from the equation and just go straight to those “other medical specialists” whose qualifications skills and experience are probably more suitable to the job in hand? (which is why he talks to them in the first place) Probably be quicker and save money as well rather than leaving it up to those amateurs

    Best wishes Nick

  4. Agree with your argument Nic. But the
    experience I have had of FOS in two cases is that it made up guidelines to suit their decision where no where else could I find these guidelines. In the second case it clearly did not understand the product and took a black and white view; Regular premium bad single premiums good. And did not take into account the fact the regular premium on the pension had a charging structure based on single premiums.
    I have seen this abused by product providers and not understood by compliance also where endowment bad isa good even when the endowment had a better surrender value and long term return as the charges were lower on the endowment than the Isa and higher returns for same mid rate returns taking into account the higher tax charge also. But compliance did not understand those simple comparisons- not very bright people on that side of the business.

  5. The important thing to remember here is that the FOS sit in judgement and as such make decisions which deprive advisers of their money. Quite a lot of money in many cases. Claims at the FOS limit outside financial services would be dealt with in court with the attendant right of representation and due process.

    In court, the judge does not have specialist knowledge or skills, whether that be a county court or the High Court. However, they will invariably hear from experts on both sides.

    So, the issue with the FOS is not that they don’t have the knowledge, skills and experience per se, but that there is no due process of representation. In effect the Ombudsman acts as expert and judge. That would not be allowed in a court for obvious reasons of conflict. That complex cases can be decided in this way and awards of up to £150k can be made without a right of appeal is, in my view, contrary to the rule of law as I was taught it. It’s a flawed system when such sums are involved. If it was limited to claims of £10k or less then it would be reasonable.

    • I agree with Grey area on this. If we were talking about an ADR system which handled cases of say £10k as he suggests, or even as high as £20k maybe, but NOT cases which can involve £150k or so. ADR is supposed to be about expediency and not arguing over small cases but just as £150k is a lot for a client, when many advisers client are actually better off than their advisers and decision to impose a claim against an adviser which would not be upheld if the case went to court is NOT justice.
      And I have NEVER has a complaint go to FOS. so this is not sour grapes, just I want to be afforded the same rights as other people. ADR systems when used probably can be very good, but not when the adjudicator acts as investigator, judge, jury and executioner.

  6. The endowment allowed the client to receive sevices (I arranged mortgage) where charging a fee to first time buyer was prohibitive.
    It was a practical solution to a problem. Ideally I would have always preferred to remain a broker the title financial advisor was a big mistake for the industry and put us into a grey area of fiduciary responsibility.

  7. When the FOS get it wrong on so many occasions, and with no means of independent appeal, the system is automatically tarnished.

    I can show instances of two separate adjudicators arriving at polar opposite decisions for identical complaints.

    I can also point to recent ombudsman decisions which fly against common sense – such as automatically condemning flexible whole of life plans as a means of protection a current and future mortgages.

    The FOS was a very cynical experiment in consumer empowerment which as gone terribly wrong. Everybody deserves a reasonable expectation of justice.

  8. I have dealt with a range of adjudicators, good and bad.

    IMO, the key skill they need is to know what knowledge they do and do not have.

    If they need guidance/support on particular issues they need the confidence to get that guidance/support before making their decision.

    One big advantage they have over a face to face adviser is that they can check their facts without losing face.

    Besides if the IFA can not make his point in an understandable form to an adjudicator, did he make it understandable to the customer.

  9. Nick: a so-called Serious Incident Requiring Investigation (SIRI), for example a death in the course of a medical/surgical intervention, involves between 5 and 10 days of work by a trained investigator who is able to look beyond the intervention to other issues affecting the service, including the preparation of a report which aims to learn from the incident. Far better to let the investigator do his/her job and leave the the skilled professionals do their job.

  10. The qualifications issue is not the problem. I doubt any of us would have a problem with FOS qualifications if we also had a right of appeal. £150K is a huge amount of money and decisions involving significantly less usually go through proper legal process in court.

    If Nic’s NHS friend gets it wrong the surgeon has a right of appeal. If that surgeon is dismissed due to the adjudication he can go to an employment tribunal or even sue the NHS trust. Therefore the adjudicator knows that his decision could be subject to legal scrutiny and this must surely improve the quality of decision making.

    Like clients, IFA’s should have a right to challenge FOS decisions through the court system. Anything else goes against true justice.

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