Aviva Medios Healthcare - are we being treated fairly?

02Jim

I will not be accepting that. We have not had a fair hearing. The compensation offered is of little consequence.

mwng

My first reaction to this is to cancel all other policies with Aviva that I have, and to urge everyone I know to do the same.

My second reaction is to refuse any settlement connected with this ruling. Given the clarity of our case - that Aviva is escaping its commitments to its Medios policyholders - Aviva was always going to fight it on technical grounds, restricting the FOS's abilities to deal with all aspects of it. To be fair to FOS, they have for some time been saying that their powers are very limited. Aviva will have made this very clear to them from the outset.

As has been mentioned before this was ALWAYS going to be a matter for FCA.

My third reaction is to observe that the chickens are slowly coming home to roost in several product areas for the insurers - annuities being their latest problem. This is probably why Insurers are producing such faux outrage at the FCA leak last week.
They are effectively at war with the FCA.

So, the FCA are currently on the back foot, sadly.

I do hope that someone will have the energy to take this to court. Aviva will be hoping that nobody will. All it requires is a clear thinking court to cut thought the !!!!!!!!.

I am prepared to put up a VERY substantial multiple of the proposed FOS "settlement" (read: "fudge") to challenge this.

Who else is?

If the FCA takes no action it is the only alternative.
Who has the energy/knowledge to lead such an action?

Note to FOS: I hope you are proud of your totally unimpressive and discourteous behaviour throughout this saga, and by the way...what proportion of your budget does Aviva fund?

davidstone

It might be helpful for policyholders to understand more about FOS’s latest position.

It is intent upon applying the Mr D decision no matter what and that is made 100% clear in case any doubt previously existed.

For that reason an ombudsman was chosen with pub brawl experience, gained from presenting the brewing industry’s responses to Government. His decision could have been written by Aviva – prevarication, thinly spread and lots of obvious cracks and gaps.

He gave immediate focus to the Mr D decision and to the OHRA authority that gave OHRA the power to do almost anything. That is the same power that Aviva claimed it inherited but forgot to mention in its 2001 offer. Our fellow policyholder’s complaint was not even fairly or accurately set out.

The ombudsman only gave pretence to any consideration of Aviva’s 2001 offer. A single decision dismissed it out of hand, without any given reasoning. The fact this ombudsman had no interest in it was evidenced by there being no reference at all to the associated Aviva authority to make subsequent policy alterations - limited to standard terms. Yet the OHRA authority, central to the Mr D decision, was applied throughout this latest decision. Effectively, this ombudsman raised his glass to us and threw the contents backwards over his shoulder. Extraordinary behaviour.

The ombudsman then defends Aviva by stating it had not withdrawn the policy. That’s a totally different emphasis to the Mr D decision which focussed upon ‘attempts’ to withdraw the policy. It was forced by written industry testimony that evidenced attempts had been made to withdraw the policy. However, this ombudsman just ducked and dived sideways so as to continue to support Aviva. Extraordinary behaviour.

As for changes Aviva made to the policy, this ombudsman supported that through the OHRA authority, which Aviva claimed but just forgot to mention in its 2001 offer. This ombudsman was like a drunk in a bar immune from his surroundings. Extraordinary behaviour

When it came to the removal of New Entrants and its effect upon policyholders, this ombudsman professed ignorance and lack of information as preventing him from working out whether there had been disadvantage. As for loss of a market price, this ombudsman did not recognise what exercises the FCA most when it comes to rigged ‘libor’ and other rigged rates. As for Aviva not telling policyholders what might impact adversely upon them and then sending them misrepresented Terms & Conditions, well those weren’t problems! Extraordinary behaviour.

Then onto the 20% premium increase and its subsequent repetition, that’s when prevarication set in. The ombudsman described our Guarantee as “a complicating factor” - not a lot of interest there! He missed entirely the presented evidence that overwhelmingly proved premium increases breached the Guarantee and entirely invalidated the ombudsman’s statements for the Mr D decision. It seems this ombudsman could not even be bothered to consider provided paperwork nor the unfairness caused policyholders. True he claimed Aviva’s behaviour “raises questions about Aviva’s management of the scheme” but he never demonstrated any intention of departing from the Mr D decision no matter what. His ducking and diving was indeed extraordinary behaviour.

As for FOS’s reliance on an illegal agreement, that causes FOS to always name Aviva Health as the respondent, well no matter as the complainant was “not adversely affected”. Yet more extraordinary behaviour discovered about FOS that’s not appropriate to its purpose.

Reminds one of the saying ‘I see no evil, I hear no evil, and I speak no evil’. Only problem is that FOS is the organisation supposed to be putting things right and, as is apparent, it can misuse and abuse that power. This is just one of those occasions. Rough justice as burtwood said.

The FCA is fully informed about all of this and was very recently provided with all of the latest paperwork and latest discoveries. Based upon previous comments from one of its top officals, it will not be over-impresed with this ombudsman. Whether that means the FCA will do anything, other than write this ombudsman off its Christmas list, is an unknown. It is not just complainants that have been misled, it is also hundreds of other policyholders who remain unaware of what Aviva has done to them.

02Jim

Correct me if I'm wrong on this but an Ombudsman's decision is not based on strict legal merit?

And can anyone say what if anything the FCA is likely to do & how or if we can approach them?

I would support mwng.

how_2

IS AN OMBUDSMAN’S DECISION BASED UPON STRICT LEGAL MERIT?

The ombudsman just has the obligation to be fair and reasonable.
That is achieved through reference to law and business practice.
Wider issues are considered rather than judgements made solely on information presented.
That’s the theory.

In this case the first ombudsman had good legal awareness but mediocre industry knowledge.
Apparently, Aviva played hard ball, with winning being its main priority.
Whether the same priority was given to truth and disclosure is for readers to judge. Certainly, Aviva’s evidence escaped being tested as no witnesses were produced for cross examination and FOS accepted whatever Aviva claimed.
That was even after the Ombudsman noted Aviva had behaved “rather oddly” in her Provisional Decision, albeit she removed that comment from her Final Decision –after pressure from Aviva – and concluded Aviva had JUST been guilty of misleading. Whether naive or not, the Ombudsman assumed Aviva’s misleading would not continue.

Consequently, huge flaws in Aviva’s presented evidence went unnoticed.
Nor was Mr D equipped to challenge them as legal paperwork and evidence are not his areas of expertise. He could not even appreciate Aviva had made an offer of a new policy around 2001 – he thought the OHRA policy remained and his complaint focussed on that policy.

The INCORRECT result was the application of OHRA terms to an Aviva policy, albeit no one knew that (except Mr D) as they escaped all mention in Aviva’s offer of totally different terms. Yet, policyholders accepted that Aviva offer, thinking it was the Aviva policy which FOS now tells them remained the OHRA policy. Aviva had become OHRA, as far as FOS was concerned, and Aviva’s offer of different terms was therefore irrelevant as OHRA’s unmentioned conflicting terms took priority.

Make your own judgement as to whether you think that has legal merit.

In considering the offer made to you by Aviva, maybe also consider the Misrepresentation Act 1967 and the remedies available when misled.

Yes, the second Ombudsman knew all of this. He was also told about the flaws in the Aviva evidence – they were overwhelmingly proved by provided paperwork. However, once made an Ombudsman’s decision cannot be reversed. Whilst that related to a particular case, it was a lead case for other similar complaints.
Other issues for the second ombudsman were whether to waste the year’s work of a colleague, whether to reverse a decision immediately enforced upon other policyholders by the adjudicator, whether to take on an Aviva emboldened and strengthened by the first Ombudsman’s decision.

The pragmatic conclusion was to use a pub brawler to sweep up those shouting foul because they had just learnt they had been judged on a policy they had not complained about and Aviva had just changed its story for its premium increase after rejection of its first story. Unfair effects were ignored by the second ombudsman by claiming he didn’t have full information to make a judgement – obviously it was pointless to throw more time at this case as FOS wasn’t going to change its position anyway.
As for policyholders being provided with Aviva’s crucial uncontested evidence, used to judge them, that was a NO NO irrespective of all FOS’s publications telling you it should be otherwise.

Again you must make your own judgement as to whether you think that has legal merit, or even whether it might have been fair and reasonable.

We are considering other questions put to us and will do that over the next few days.

how_2

I have been chastised by one colleague for sparing policyholders the ridiculousness of FOS’s position and have agreed to correct my omission.

Policyholders will recall that the first ombudsman was vexed that one of the policy’s main selling points was the guarantee and therefore

“Mr D was likely to have considered that his premiums would not increase substantially with age. As Aviva was advising that the reason for the premium increase was in part to cover the cost of the guarantee, I thought it understandable why Mr D would have felt he was paying an age-related increase in a roundabout way”.

According to that ombudsman that had caused FOS to conclude that

“Aviva maintain premium levels for 2012, 2013 and 2014 (outside increases that would ordinarily be applied for insurance premium tax and medical inflation)”.

In other words only the 1% insurance premium tax and medical inflation would be allowed and policyholders would get their money back for increases beyond that.

Of course that then became irrelevant as Aviva changed its story for the premium increase to claims experience because of the above failed argument – only something we learnt 2 years later.

So next we get to the second ombudsman who stated

“Aviva has explained that the sharp (premium) increase in 2012 was because of historical under-pricing of premiums. I appreciate that this would be deeply disappointing to policyholders and raises questions about Aviva’s management of the scheme ... However ... we do not perform a regulatory role ... I consider that any complaint about financial mismanagement is better addressed to the FCA”.

So we see, charging more for the guarantee was viewed by the first ombudsman as an incorrect premium increase that Aviva had to repay. Yet the second ombudsman considered otherwise. According to him it was not a FOS matter but an FCA matter. That turnaround and ducking and diving to hide behind the FCA was forced by overwhelming evidence that proved the guarantee had been breached by Aviva’s premium increase.

So when asked whether any part of FOS’s decisions had legal merit or even fairness and reasonableness, the answer is a definite ‘NO’. However, it is an unknown whether the reason for lack of legal merit and lack of fairness and reasonableness was because of FOS’s desire to protect a bad decision or Aviva, or both.

burtwood

WHAT TO DO NOW

FOS
Once FOS went in the OHRA direction, with its authority to do anything, any reversal was always likely to be difficult. Both Mr D and Aviva advocated the direction FOS took, thus causing no focus on Aviva’s 2001 offer. Tossing away a year’s work and reversing an ombudsman’s decision was then asking too much.

FOS being fooled by Aviva’s ‘last minute’ story change of ‘claims experience’ was not unexpected. First, the highest risk for most transactions/cases is invariably the last change as it never gets subjected to the same level of review or scrutiny given initial issues. Like writing a letter, the last change is invariably where most mistakes can be found. Second, FOS’s greatest weakness has always been not to test evidence provided by the firms being complained about but to accept it as gospel. FOS’s fact verification process is non-existent and often not helped by low calibre adjudicators, unqualified for higher paid City jobs, made worse by their recruitment being in high numbers over a short period of time. Firms being complained about know this and FOS is easily misled by those firms. Policyholders will recall that Aviva misled an MP by misrepresenting FOS’s position, which reflects what Aviva thought of FOS and its zero concern for being found out – FOS exists to resolve disputes and not to punish offenders.

Now FOS does not want to hear from us. Nor do policyholders feel that FOS serves any useful purpose since it paralysed itself into not wanting ‘to see, hear, or speak more’, which we have all experienced increasingly in this last 2 years.

FCA for existing complaint
The FCA was recently fully informed about the Sakagawea complaint. Most importantly, issues were fully explained and overwhelmingly evidenced. The submission made will find its own level within the various parts of the FCA structure. Maybe something will be done, maybe not. Only time will tell.

There is not much point in adding more as almost no policyholder possesses the paperwork detailing what Aviva said. Consequently, it’s like being judged without knowing the accusation as policyholders do not know the areas or issues requiring responses or challenges. Extremely unfair, but that is what FOS caused to happen, irrespective of FOS’s fine words, in all its publications, saying otherwise. Repetition of original issues already communicated also serves no purpose.

FCA for new complaints
Elements of these have already been introduced into the Forum. They need to be put into a context the FCA is structured to deal with. Most importantly, they rely upon FOS’s decision on the Sakagawea case. In particular they concern FOS’s views after consideration of Aviva’s 2001 offer as well as FOS confirming that claims experience could be used to increase premiums, with full knowledge of the composition of that claims experience.

A draft letter can be provided to established participants within the Forum. It is up to relevant policyholders to determine whether the letter suits their purpose and circumstances. It is less likely to be relevant to complainants that accept any Aviva compensation offer. Any request for the draft letter (currently being prepared) should be emailed direct to how.

Court
For those policyholders not armed with Aviva’s responses, they would be unprepared for any battle. Single challenges for loss of Guarantee are likely to produce compensation (estimated currently near £70,000) far less than the enormous costs that might be involved.
Single challenges for wrongful premium charges are POSSIBLE with little cost if one has the expertise and paperwork. Whilst that’s no problem for a very few that will not be the position for most. Again time and effort are downsides against a possible upside currently estimated to be worth up to £3,300 per claimant.
A group challenge would put enormous demands upon a few in terms of time and effort and is a possibility but no more.

Future premiums
Policyholders can complain to FOS about any future premium increases they feel are not reasonable.
If you do that, this coming year, Aviva will be charged £550 for each complaint investigated (it is allowed a certain number free but Aviva probably uses that allowance in moments).

Paulson

Wow. What a letter!!!

Thank you burtwood and friends.

I reckon you were all aiming for this from day 1 but needed FOS decisions to make it happen.

Can see sense as very slim chance of FOS retracting its decision on Mr D.
Also see that Mr D decision did not go far enough for what you all - we all - needed.

What you are doing is massive and far bigger than any of us could have imagined in sheer size and scope. Also cannot see we lose anything based upon what we now know about the policy and Aviva.

Extraordinary!!!!

mwng

Not sure what last few posts have achieved except to underline the fact tthat Aviva appears, in an almost unbelievable combination of strong arm tactics, legal muscle and clever positioning with the FOS, to have won.

davidstone

YES and NO is the answer.

Overturning the Mr D decision, with its inappropriate application of the OHRA Article 8 authority to do anything, was always a huge challenge. What parts of that ombudsman decision stemmed from Aviva’s brilliance, its unacceptable behaviour, or its exploitation of a confused but convinced Mr D are mute points. However, all other opinion and facts were excluded. Complaints about a different policy were not even considered. Once Aviva’s original story for its premium increase failed it was lost and replaced by one that was neither tested, challenged nor even communicated, at the time, to us. We were left uninformed for over a year, essential information was withheld from us, and we were then pilloried to accept minescule compensation for a complaint we had never made.

As great as it would have been to have turned that Mr D decision around, there was only a small probability of achieving that outcome. Nevertheless we had to try and also had to ensure we got what we could to work another area that offered greater probability of success. We did get out of it what we could to enable us to focus on that other area of greater probability.

We all share your anger mwng and maybe sharing the anger of others helps each of us deal with our own anger.

The lesson from the Mr D saga was that wrong directions cause wrong results.
Shortcuts in a following stage can end equally disastrously as complaints might not get a fair hearing if considered better dealt with by another part of the system.
In seeking answers from the system one has to adhere to it and that is what we have done.

We must all work together to facilitate and allow the system to do what it is there for.
Whether anarchy will be allowed to reign this time round is an unknown.
We can but try and will do so, especially for those that cannot help themselves.