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Wrongs and rights

Much has been said about Lord Hunt’s review of the Financial Ombudsman Service although many important aspects appear to have been overlooked.

The journalistic focus has been directed at notable failures such as the rejections of the 15-year long stop, fees for claimants and an independent appeal process as well as measures to erode the wilfulness of claim management companies. Yet there are other features, positive and negative, which will affect firms unfortunate enough to have complaints escalated to the FOS.

It may have escaped notice but the review stated there is no need for the FOS to be absolutely consistent in adjudications and final decisions. This is nothing new, as the FOS has been lamentably inconsistent over the years but, until now, it has staunchly defended the consistency of its processes and decision-making. No doubt, this about-turn will complement the move to principle-based regulation where subjectivity is the game and its rules are decided by what scrutiniser is in charge.

Another undesirable suggestion is that of higher case fees for “enforced deadlock” cases. We do not know what this means exactly but it appears to include cases, normally involving IFAs, where a firm consistently argues matters such as FOS jurisdiction and interpretations of the dispute resolution rules. There has already been an instance of the FOS suggesting to one firm it makes a payment to a claimant due to the length of the investigation – this before the adju-dication process even started.

Another worrying proposal is reopening closed cases if new evidence becomes available. The FOS already applies this to adjudications but this modification will allow reopening of cases where a formal ombudsman decision has been delivered. Firms already suffer the potential anguish of claims being levelled beyond the normal 15-year limitation period and this will bring further dismay to retired advisers.

Lord Hunt does not believe the FOS should align its processes with the legal system and this includes providing to each party the evidence submitted. Instead, only the specific evidence which the adjudicator/ombudsman relied on need be shown. Overall, this is unsatisfactory, although, in the case of an adjudication, it will enable both parties to escalate the case to an ombudsman if it appears vital evidence has been disregarded.

In parallel with the recent Pickering court case is the proposition that complaints without merit should not provide for a case fee even when a case file has been opened. This will resolve one of the many arguments concerning procedural unfairness.

A two-tier fee system is an interesting yet vague suggestion predicated on one fee relating to assessment and another to investigation. How this can fit in with the proposal to restrict case fees, outlined above, remains unclear.

While he wants the FOS’s existence to become even more widely known, Hunt makes the point that the FOS should not appear to be encouraging complaints. How this dichotomy translates will determine whether one can be achieved without the other. Most readers will recall the deplorable “RU Owed” ads that did so much to encourage opportunism during the pension reviews. Let us all hope that such repugnant activities are never repeated.

Opponents of the current system, who argue the lack of an independent appeal system infringes article six of the Human Rights Act, will not be appeased by the report.

Lord Hunt reasons that the ombudsman who makes a final decision should be different to any with whom the adjudicator has taken advice or guidance during the adjudication process.

This is sensible yet fails to provide that fresh breath of independence that is so obviously lacking.

The underlying theme of the report is that the many reasoned arguments in favour of charging complainants, reintroducing a 15-year long stop, enabling a personal hearing and providing for an independent appeal system are detrimental to the consumer.

In short, the ease and ability for a consumer to level a complaint is considered of far greater importance than the human rights of advisers.

Such selective discrimination cannot be countenanced by any civilised society and until these wrongs are corrected, there will remain a groundswell of resentment at the forces which determine and facilitate this prejudice.

Alan Lakey is a partner at Highclere Financial Services.

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