Taking the Financial Ombudsman to a court for not being "fair and reasonable.

tifo

I've recently had two decisions from the Financial Ombudsman which are not fair and reasonable.

(1) They decided that the arrears charges on my mortgage account are fair without asking the bank for a breakdown of how each charge was calculated for the breach it was applied for. The bank provided an estimate (equal to the charge) and applied this across future charges. The FOS decided that the charges were applied fairly because I was in arrears, not that they were fair because they reflect actual costs. I lost the benefit of UTCCRs and CCA 1974 unfair relationships. Total lost over £12,000 in charges and interest.

(2) They decided that the insurer in a building guarantee claim need not pay for remedies to the extensive damp and black mould I have on all upper floor ceilings, around all upper floor windows and on a few walls because it is not covered by a specific requirement. This is for a new build property. They accept that the loft insulation was laid wrongly. There is a specific policy clause for the builder to work with 'care, skill and in a workman-like manner'. They do not see the wrongly installed loft insulation which led to the extensive damp and black mould as a breach of this clause. They say liability is only a breach of a requirement. But they have not looked at any requirements for the roof area. Total lost over £20,000 in repair costs plus compensation for the many years of living with the damage and the claim.

(3) I have various claims for default charges on credit cards which were sold to DCAs and the FOS decided the bank can pay my refund to the DCA in each case when they have no power to join any other third party within a complaint. The unfairness of it is that in all cases I've settled the accounts in full at the DCA before I made my claims so I don't owe anything to the bank or the DCA. Total lost over £6,000 across all claims.

I'm now looking to take some sort of action against the FOS because i'm quiet sick of their bias against the consumer. I'm not excluding a judicial review (which costs a lot I know and again this is unfair) but also to take matters to Europe (they made the directives for the Ombudsman, UTCCR etc) or even the Govt (because they made the laws which give the FOS its powers to ignore the laws of the land). Maybe something along ECHR etc.

So where does a consumer go when they've been dealt with in this way by the FOS (other than take private action against the other party)?

WestonDave

Try a couple of solicitors - if they won't take it on, no win, no fee then I'd suggest you move on. If you really want to throw more money away then I'm sure you'll find a solicitor somewhere who will take you on provided you keep them in funds up front. Even then you may struggle as what they might earn acting for you will be offset by the hassle of dealing with your inevitable complaints and claims when the decision doesn't go your way.

A quick flick back through your previous posts shows a catalogue of complaints and claims - any sensible firm would be very wary! Better advice would be to stop looking for others to blame for situations you have created or exacerbated (mould doesn't get to £20k worth of damage just due to bad insulation - lifestyle including lack of ventilation will have done most of it and the rest could have been sorted for a few hundred quid at the outset) and start making better decisions.

dunstonh

I've recently had two decisions from the Financial Ombudsman which are not fair and reasonable.

..in your opinion. Just adding that as people often feel a rejection is unfair as they are too close to the complaint to be objective.

(1) They decided that the arrears charges on my mortgage account are fair without asking the bank for a breakdown of how each charge was calculated for the breach it was applied for. The bank provided an estimate (equal to the charge) and applied this across future charges. The FOS decided that the charges were applied fairly because I was in arrears, not that they were fair because they reflect actual costs. I lost the benefit of UTCCRs and CCA 1974 unfair relationships. Total lost over £12,000 in charges and interest.

Whilst not directly linked, the outcome of the bank charges case did give some pointers on these things and the FOS decision here is consistent with what you would expect. The FSA looked at arrears charges a couple of years back and found that there were no real issues other than with certain sub prime lenders.

(2) They decided that the insurer in a building guarantee claim need not pay for remedies to the extensive damp and black mould I have on all upper floor ceilings, around all upper floor windows and on a few walls because it is not covered by a specific requirement. This is for a new build property. They accept that the loft insulation was laid wrongly. There is a specific policy clause for the builder to work with 'care, skill and in a workman-like manner'. They do not see the wrongly installed loft insulation which led to the extensive damp and black mould as a breach of this clause. They say liability is only a breach of a requirement. But they have not looked at any requirements for the roof area. Total lost over £20,000 in repair costs plus compensation for the many years of living with the damage and the claim.

I will leave that for someone else..

(3) I have various claims for default charges on credit cards which were sold to DCAs and the FOS decided the bank can pay my refund to the DCA in each case when they have no power to join any other third party within a complaint. The unfairness of it is that in all cases I've settled the accounts in full at the DCA before I made my claims so I don't owe anything to the bank or the DCA. Total lost over £6,000 across all claims.

That is correct. Any redress that is payable is allowed to be set off against any arrears, defaults or amounts written off as part of a settlement.

I'm now looking to take some sort of action against the FOS because i'm quiet sick of their bias against the consumer.

There is no bias against the consumer. Indeed, if there is any slight bias it is in favour of the consumer as the FOS consider fairness as well as law. The courts will look at law.

I'm not excluding a judicial review (which costs a lot I know and again this is unfair) but also to take matters to Europe (they made the directives for the Ombudsman, UTCCR etc) or even the Govt (because they made the laws which give the FOS its powers to ignore the laws of the land). Maybe something along ECHR etc.

Go for it if you want. Just make sure you seek legal advice first otherwise you could end up spending a fortune on a pointless cause.

tifo

WestonDave wrote: »

Even then you may struggle as what they might earn acting for you will be offset by the hassle of dealing with your inevitable complaints and claims when the decision doesn't go your way.

What are you on about? Are you labelling me?

I'm fair and reasonable in all my claims, I just expect the FOS to be fair and reasonable as per their statutory obligations.

tifo

WestonDave wrote: »

Better advice would be to stop looking for others to blame for situations you have created or exacerbated (mould doesn't get to £20k worth of damage just due to bad insulation - lifestyle including lack of ventilation will have done most of it and the rest could have been sorted for a few hundred quid at the outset) and start making better decisions.

So you're blaming me for raising a claim on an insurance sold to me with a new house and promising that the house has been built to certain standards, and when its clear these standards have not been met I'm at fault?

The damage has been quoted at around that sum ... by the insurer.

We're not talking simple ventilation here, we're talking EXTENSIVE damp and black mould on ceilings, walls and around windows. This cannot be due to our lifestyle. It's faulty building work.

The insurer accepts there are faults and there is damage, just that it isn't covered under the specific term.

The insurer and FOS accept the developer hasn't met their obligations, but they don't provide a remedy for me.

tifo

In any case, the insurer is being taken to court for the damp and black mould. The 3 decisions from the FOS between them upheld my whole claim.

The bank is being taken to court for charging excessive arrears fees.

But I want to know what I can do against the FOS. Their decisions are clearly fair and I want a higher authority to decide that.

magpiecottage

You can only take FOS to court if the matter is one of bad faith, not mere incompetence.

In reality, a JR will almost certainly find against you unless you can prove that FOS has acted unlawfully - and the fact that it can do what is fair and reasonable in the opinion of the Ombudsman makes that almost impossible to win. In effect, you would need to prove that it was NOT his opinion, however misguided that opinion might be. In effect, that means you would need to show not only that the view taken was moronic but that the Ombudsman was not a moron.

From experience, the former is often quite apparent. As for the latter - it is arguably easier to prove the Pope is not a Catholic.

Consequently, I think taking the other party to court would be best.

Of these:

The decision on the arrears charges is likely to be agreed by the court.

The bank charges will also follow unless you can show that your case was different in some way.

For the final case, I think your best bet is probably to sue the builder, rather than the insurer. If you win the builder must put it right. If they then do not do so in theory you can go back to FOS with this as it is "new information" (in the sense that until you won the case you could not prove the liability).

However, I am not an expert disputes between homebuyers and builders so you need to get suitable legal advice on the viability of a case first.

roonaldo

tifo wrote: »

I'm now looking to take some sort of action against the FOS because i'm quiet sick of their bias against the consumer..

stats will show that you are wrong.

tifo

magpiecottage wrote: »

The decision on the arrears charges is likely to be agreed by the court.

Yes, of course, if the court is willing to assess that the charges reflect costs only and do not make a profit. An actual assessment against the breach for which a charge is applied, not an estimate which is equal to the charge.