Ombudsman - Judicial Review - UK Insurance Ltd

ginimasters

I have a Juidical review Oral hearing on the 9th May 2012 to appeal against the FOS decision to dismiss my complaint against UK Insurance Ltd (Tesco).

I started my complaint back in 2005. I appealed against the adjudicator's decision and Ombudsman Lilly was assigned to review my case. He, with previous experience in underwriting, decided that Tesco were in breach of their guidelines but unable to award against them because of a small discrepancy in my evidence. He decided the matter was best dealt with in court since the FOS were unable to test witnesses on oath.

I went to court to have this evidence tested in 2009, despite my awareness that the FOS and law work very differently, but I did so in order that I could go back to the Ombudsman if unsuccessful in court with my tested evidence as new evidence. The Ombudsman does not have the facility to test evidence. Because of the archaic (dating back to maritime era) and harshness of the insurance law the judge decided against me despite describing Tesco evidence as woefully inadequate (they had failed even to present the underwriting criteria which the witness was not qualified to comment on) Tesco witness as a lamb to the slaughter (due to her lack of underwriting experience) and finding both my evidence and that of my witness to be honest. He decided purely on a balance of probabilities.

I was advised by the FOS that I could go back to the Ombudsman if I have new evidence (witness testimony) even though my case had been tested in court and there was a judgment. I was unfortunately made to start a new complaint. My complaint was assigned to an adjudicator who decided because the matter had been dealt with in court the FOS had discretion to dismiss my case without assessing the merits. This I felt was wrong given the history of my case, and appealed against his decision. Ombudsman Lilly was assigned once more ( he originally decided Tesco were wrong not to honour the claim). He in turn dismissed my complaint because I had not produced a transcript of the court hearing in order to verify what I alleged in my complaint, despite the submission of judgments by Tesco's barrister and my Mckensie friend (legally qualified) which I presumed would be adequate. I did not produce a transcript at the time due to the cost (£1,000). I complained, writing directly to Ombudsman Lilly, that he was wrong to dismiss my complaint without at least giving me the opportunity to submit a transcript. Lilly responded advising that I was free to submit a transcript but could not ask him to review my complaint again which I thought was wrong given his extensive knowledge of my case and deciding Tesco were in the wrong in 2005.

I was, to my complete astonishment, forced to start my complaint from scratch yet again. I had to wait months for an adjudicator to be assigned yet again. His decision, yet again, went against me, basing it on that of the previous adjudicator. When I appealed and my case assigned to a different Ombudsman, Derry Baxter, the decision was the same as the adjudicator's, a dismissal without considering the merits of the case, due under rule DISP 3.3.4, (8) that "the subject matter of the complaint has been the subject of court proceedings where there has been a decision on the merits". Ombudsman Lilly, however, did not apply this rule, ironically. I have since learned that this Ombudsman has extensive underwriting experience. Ombudsman Baxter, however, appears to be little more than an ex-adjudicator. I have been unable to locate her on the list of Ombudsman on the FOS website.

The only recourse to justice open to me is a Judicial Review. Permission has not been granted in the first instance, so I have applied for an oral hearing to request permission in person because I believe that the QC has been wrongly persuaded by the FOS barrister, who has got his facts wrong.

I feel strongly that the FOS have behaved unfairly and illogically towards me. They have failed to follow their own rules and guidelines making a mockery of their procedures. I have had my evidence tested which resolved the discrepancy persuading the Ombudsman not to award in my favour. The FOS were set up to protect the consumer from the harshness of insurance law which is archaic and in desperate need of reform according to the law commission. Their decision to dismiss my complaint without assessing its merits is outrageously unfair given the history of my case, and the fact that, having been told I could submit a transcript, it was then completely ignored.

Any advice to assist me in court or stories of similar experiences would very much be appreciated as this is my last chance for justice. I would hate for Tesco to get away with £17,000.

Many thanks

9 April 2012 - when googling her name, I found a very negative comment about Derry Baxter (Ombudsman who made the decision to dismiss my complaint), associated with an article written by Mr Alex Stevenson on 18 Aug 2011 entitled "Red Mist Retribution is clouding our judgment", political reporter for "Anti-corruption League", and "politics.co.uk" which I am currently looking into. When I looked up Derry Baxter on the official FOS website she did not appear. I had confirmation from the executive assistant that Ms Derry Baxter is still acting as an Ombudsman but listed on the official FOS website under a different name, Audrey Baxter. She, however, signed my decision using Derry Baxter. How inconsistent, and not very helpful to those wanting to research her background.

12 April 2012 - now have a mention and link to this article in financial-ombudsman-problems.co.uk, a very useful and informative website about other people's problems with the FOS.

19 May 2012 - Outcome of my JR Oral hearing

Just letting you know my appeal for permission for a JR was rejected. The FOS arrived with a full legal team, so clearly worried, much to my astonishment as I was a litigant in person. They had not given me any warning so I was unable to factor this into the amount of time I requested which got almost halved by the judge to allow the other side to put forward arguments. How unfair! This was a clear tactical manoeuvre on their part.

The judge decided they were lawful in dismissing my case because it fell within their remit which according to Lord Hunt is way too wide. The Ombudsman who assessed my case, Derry Baxter (but Audrey Baxter on their website which is weird) has been described as corrupt on line which concerns me greatly. I have been treated immorally. The very first Ombudsman Lilly who decided Tesco were in breach of their guidelines and should have honoured the claim, was the one who assessed my new complaint the 2nd time round when I returned with new evidence, ie, that evidence had been made on oath, which he asked me to do in his first decision. He dismissed my 2nd complaint because he could not verify my allegations without a transcript (which I could not afford at the time of submission of the complaint) that Tesco's evidence was woefully inadequate and their witness described by the judge as a "lamb to slaughter". I wrote to him directly telling him he was wrong to do so without giving me an opportunity to submit one. He granted this, but I was to my horror forced to restart my complaint. Ms Derry Baxter ended up with it and dismissed it because it had been dealt with my a court of law. She effectively dismissed the history of my case and my new evidence as though as if inconsequential. As there is no appeals system for the FOS, and their internal one is inadequate, as Lord Hunt concluded in his audit, I had no choice but to apply for a JR. I will now be applying to the court of appeal because I believe the JR judge was wrong.

I am furious and feel so cheated. I do not trust Ms Baxter's decision. She has her facts wrong because she could not be bothered to read my transcript. She wanted to get rid of my complaint in order to move onto the next plus was concerned about upsetting Tesco no doubt who are one of the many paymasters funding the FOS. Apparently each adjudicator and Ombudsman receives in excess of £500 per case handled. They are clearly under immense pressure but have a huge monetary incentive for dealing with cases as quickly as possible. It is wrong and immoral not least because people's lives are being affected. They have effectively let Tesco off the hook after finding them in the wrong. Tesco owe me £17,000 which is no mean sum.

The Judge who heard the evidence of my ex was swayed by the Barrister for Tesco on a balance of probabilities and not on hard evidence. The law on insurance is unfairly biased towards insurers. Have the FOS not been established to protect the consumer from this harshness??

I have now written to both MP John Clenn and Lord Hunt. I am testament, as I am one of the rare few that have taken it this far, to the unfairness of the system and that reform in needed to create a fair appeals system because of the inappropriateness of Judicial Review for overruling FOS decisions when they are wrong - their remit for dismissing cases is too wide, Ombudsmen can rely on subjectivity and ignore new evidence if a court has alrealy been involved if they choose to do so, but have at the same time discretion to consider it. Their is not consistency, they are untouchable, they are incompetent and driven my financial incentive only it would seem. They are not fit for purpose.

I am left very distraught and totally disillusioned with the FOS and legal system. Ombudsman Lilly would have probably gone in my favour had he had the transcript to hand at the same time as the complaint. What's illogical is why he didnt ask me to provide one prior to dismissing my case leaving me in such a vulnerable and weakened position because another Ombudsman was able to dismiss it under a different rule.


My outcome has also been mentioned on financial-ombudsman-problems website. The posting below I found very interesting, highlighting the unfairness that an appeals systems exists for criminal cases when judges get it wrong, but not for FOS when their ombudsmen make illogical and unreasonable decisions as in my case.

*******
17 May 2012 ... Mr Sam Hallam has his murder conviction quashed by the Court of Appeal.

Mr Hallam was fortunate that the UK legal system allows appeals. Members of the public who are faced with poor or suspect decisions by the FOS panel of ombudsmen are not so lucky.

There is no appeal against an Ombudsman's decison and the FOS is unwilling to re-open cases even though Lord Hunt in his independent review of the FOS suggested that a system should be in place to review some decisions

In para 4.19 of his Independent review of FOS, Lord Hunt said , "I recommend that the FOS should have the discretion fully to reopen a decision in the very rare cases where relevant information emerges after a decision has been made, including through the work of the Service Review Team and Independent Assessor". The service review team has been abolished, but surely the Independent Assessor's terms could be changed as Lord Hunt suggested, to give her the right to order independent reviews of genuinely troubling decisions.

By not allowing appeals or reviews of Ombudsmen's decisons, FOS is in effect saying..."our ombudsmen are always right". But we all know, that like the jury and judges who convicted Mr Hallam, mistakes do happen, we are all human.

Lord Hunt's review of FOS
Independent Assessor's terms of reference
******

magpiecottage

I think you can count the JRs FOS has lost on the fingers of one finger, I'm afraid.

dunstonh

I make no judgement on your case but it is known that if you go to court, the FOS will no longer take on your case as the court ruling trumps the FOS.

The FOS were set up to protect the consumer from the harshness of insurance law which is archaic and in desperate need of reform according to the law commission.

That isnt what the FOS was set up for. The FOS has to follow law, FSA guidelines and considers fairness. Insurance law may be governed by many archaic rules (Although many are international which makes it harder to change) but it is not for the FOS to decide which laws it should follow or not.

One assumes you have sought legal advice on this. What is the basis your legal team have given you for thinking you stand a good enough chance of success that it is worth taking this action?

vax2002

Like all bodies set up, they get at em !
No exception here.
Money talks

P-G_2

Hmmmmm...
Not so sure about FOS having to follow the law, read this article from a lawyer Simon Orton on the subject
http://www.practicallaw.com/1-201-0624

And much more critical, this speech entitled "Ombudsmen and the Rule of Law" by Anthony Speaight QC
(You may have to download the .doc, but its worth it)
http://www.ifadu.co.uk/downloads/PNBA%20-%20Ombudsmen%20and%20the%20Rule%20of%20Law.doc

FOS do, however, have a good record with JRs, their remit is so wide that the ombudsman can do much as they want as long as it is "fair and reasonable"; They are very difficult to challenge.

ginimasters

A big thank you to P-G who has kindly provided me with some very useful links. The information I have read will assist me in better structuring my attack in court on 9th May, where the focus unquestionably needs to be on fairness and unreasonableness given the appalling way the ombudsman has handled my complaint.

sternabout

I'm afraid that you will lose. Bear in mind that you can only JR whether the ombudsman followed process. You said that you were not able to provide the transcript. As long as the adjudicator gave you two weeks to respond with further evidence to their assessment and when you appealed you were sent a letter giving you 21 days to provide any further evidence, then the process was followed. It is up to you to provide any evidence you want the ombudsman to consider, regardless of the difficulty of providing it.

Beyond process, check out the FSA handbook on the rules under which the FOS operates. The ombudsman must determine all complaints by reference to what is, in his opinion, fair and reasonable in all the circumstances of the complaint. This means that unless you can show that no reasonable person could have considered the outcome fair and reasonable, you will lose. This is incredibly hard to demonstrate.

In any event, your complaint was actually dismissed. Have another look at DISP 3.3.4 (I can't submit links as a new user, but search for FSA Handbook and the Financial Ombudsman Service). I'm not sure if this has ever been JR'd, but the way I read it, if an ombudsman considers that it should be dismissed for one of those reasons then that's end of story. Also bear in mind that the FOS should never seek to override a court's ruling.

Personally, I think that the statement "I did so in order that I could go back to the Ombudsman if unsuccessful" means end of story. That is not the purpose of the FOS, it is an alternative to court. If you've already been to court and been ruled against, regardless of the fairness of the law used, then the FOS is going to steer well clear.

The best you can do is to make a service complaint about the fact that your complaint was not shut down earlier on. But you'll get very little joy out of that, a couple of hundred quid max if you really push it.

David_Farmer

It seems to sum up your case for Judicial Review that you originally brought a complaint against an insurance company that refused to allow your claim because of non-disclosure of previous claims. Your complaint to the Financial Ombudsman Service (FOS) would have been upheld under the guidelines but due to a discrepancy in the complaint you could only have your case resolved in court by having witnesses give evidence on oath and examined by cross-examination. When you went to court the court decided against you under traditional law and not “insurance best practice”. You brought a new complaint based on evidence having been examined at court. The Ombudsman rejected that complaint because there was no official transcript of the court proceedings. When you brought the matter back before the FOS, producing a transcript, it was treated as a new complaint and eventually dismissed by the Ombudsman without considering the merits of the case because it had been decided by the court. Your case is quite unique having been brought back as a new complaint. The procedure you have been through is farcical because of the inability of the FOS to examine evidence on oath.

It seems most unjust and unfair that the very reason insurance law has not been reformed is because the FOS is there to dispense justice based on what they consider is fair. If the case is decided by a court, the law applied is harsh and it is very easy for insurance companies to avoid paying claims. This is usually when there has not been full disclosure of previous claim's history by a consumer, That can arise because an agent of the insurance company has failed to record accurately, the previous claims history or the customer has not been asked properly about it. Whilst consumers have a chance to check the proposal for insurance it is rare they read it through carefully enough or fully realise the consequences of not doing so.

The FOS has almost a free hand under its rules to decide the case as it wishes and dismiss it without considering the merits leaving you with the option of judicial review. You are left with a very high hurdle, indeed, to get over to prove that the decision of the FOS was illogical or unreasonable in all of the circumstances. I understand that in your case the judge did not actually see the underwriting criteria and decided the case on a balance of probabilities. The FOS had seen the criteria and the first Ombudsman had decided that had it not been for the discrepancy over whether or not one of the previous claims had been disclosed that under insurance best practice you would have succeeded in your complaint.

Insurance law or the whole system of examining complaints needs reforming. Previous claims history is available to insurance companies except where there has been a change in circumstances, which could affect the risk being insured. There is the danger that the FOS can decide whatever it likes not necessarily following its own guidelines ( FOS does not have to adhere to them) and it is very difficult for a consumer to challenge. The existing system is far from satisfactory.

P-G_2

The 2 previous comments by Sternabout and David Farmer seem pretty sensible.

One thing is sure, the way FOS works needs an overhaul. The ombudsmen come from varying backgrounds (for instance, one appointed 2 years ago seems to be mainly experienced in town planning) and few have practical day to day financial services experience. The adjudicators are inexperienced and there has been a very high staff turnover and expansion at the same time after a huge recruitment programme. Some adjudicators are new graduates with little experience of life, let alone the complex insurance, pensions, investments etc etc. which they are judging. FOS makes decisions based on "fair and reasonable" criteria and can accept or ignore evidence and other relevant information as they choose. They don't have to follow legal procedures, or the law itself (as long as they can say what they are doing is fair and reasonable) and they can ignore their own guidelines. Many IFAs have far higher, up to date, financial qualifications than those who are judging them. FOS don't hold hearings and claimants are encouraged to put their cases in their own words even if they have little understanding of what has actually gone wrong and/or the financial products concerned. Meanwhile the banks etc. have teams of experts putting their side of the argument.

Once an ombudsman's decision is made, however flawed or bizarre, if the claimant accepts, it becomes binding on the firm or IFA with no possibility of review or appeal by FOS, the courts, or anyone else. The ombudsmens' decisions are not subject to external review or audit, no appeals are possible so mistakes are never discovered or publicised. Because of this FOS has built up the reputation of having ombudsmen who NEVER make mistakes even though all reasonable people know that in the 20,000 decisions they made last year there must have been plenty of errors, the ombudsmen are human after all. FOS cannot admit that ombudsmen can make mistakes because then an appeals procedure would be required and the floodgates would open. Some cases drag on for years and no matter how bad the firm's actions, FOS does not punish or criticise them. Awards exceeding £150,000 cannot be made, forcing claimants to reluctantly take a lower cash in hand offer or reject the decision and embark on the hugely expensive legal route to get proper redress. Mark Field MP is currently trying to change this. The Independent Assessor, appointed by the FOS board, has little authority (but a very high salary) and is prohibited from looking at the merits of a case, she can only consider procedural matters. She makes a few low value awards every year and FOS can even disregard her recommendations if it wishes, such is the power of the service and weakness of the IA.

In para 4.19 of his Independent review of FOS, Lord Hunt said , "I recommend that the FOS should have the discretion fully to reopen a decision in the very rare cases where relevant information emerges after a decision has been made, including through the work of the Service Review Team and Independent Assessor". Lord Hunt is not keen on appeals, but his limited suggestion would give a review of some decisions, but FOS do not advertise such a procedure on their website as far as I can see so they don't seem to have accepted Lord Hunt's recommendation on this point. The service review team has long since gone, but surely the Independent Assessor's terms could be changed to give her the right to order independent reviews of genuinely troubling decisions.

So, a staff of 130 ombudsmen and around 1000 adjudicators continue to judge over 200,000 cases a year with the ombudsmen making over 20,000 legally binding decisions without apparently making any mistakes. The Government is changing the financial regulatory structure but apart from publishing 20,000 ombudsmens' decisions a year (but NOT publishing the 180,000 adjudicators' decisions where the majority of FOS work is done), I suspect there will be little real change at FOS. The way the ombudsmen reach their decisions has not changed much in 12 years...it needs an overhaul.

ginimasters

Thank you again P-G. Just wanted to clarify, for the benefit of 'sternabout' that I was advised by the FOS that even though my case had already been heard in court and I was unsuccessful, if I submitted evidence not previously available, they would look at my case again under a renewed complaint. I ultimately needed to submit two new complaints. The first was dismissed due to no transcript, which I could not afford at the time. I was ultimately allowed to submit one, but forced to start a new complaint, due to their pathetic procedures, which left it open to another adjudicator/Ombudsman being assigned the assessment... which is exactly what happened. Having gone to great expense to obtain the transcript, because he/she has discretion to do so, both the adjudicator and Ombudsman (Baxter) chose not to consider it to verify if the discrepancy had been resolved. This, despite deciding in 2005 that Tesco were in breach of their guidelines. How unfair and illogical. I am outraged.


Having been told in writing by the FOS that the Independent Assessor acts independently from a Judicial Review, when making my application to her she wrote advising that she would only look into my complaint once the JR process was complete. Yet another inconsistency!

tifo

sorry to reopen an old thread but i'm in the same boat as the OP against with my complaint against an insurer.

i'm out of the JR period (3 months max) as have been corresponding with the FOS over my complaint.

i'm looking into other options such as a body that might oversee the Ombudsman (if any), the EU as they issued the directive that created the Ombudsman and even ECHR as a public body has a legal duty to be fair, which in my case I am saying they haven't been.