Shock at Fin Ombudsman Decision

VohnnyJegas

eskbanker said:

VohnnyJegas said:

nossa_2 said:

Thank you all for your comments and advice but I am surprised that no one has been shocked by the ombudsman's inability to deal with this - I still say why would any institution bother to pay their offer of resolution if the consumer has no rights with the ombudsman and would have to take the legal route? An institution could offer a generous resolution and then sit watching their customer strive to receive the offer knowing the ombudsman (after months waiting) will just throw it out - there is something failing in this supposed consumer champion  

But they don't do that, which suggests you're an outlier.  Whether that's because the story is a work of fiction or because you have just fallen between the cracks, I will leave to the imagination of the reader.

nossa_2 said:

Outlier? Please explain.

My complaint about a financial institution regulated by FCA my logical brain sends me to FOS.

nossa_2 said:

VohnnyJegas please elaborate on "outlier" where would you assume to take a complaint about an FCA regulated company

The term 'outlier' was being used to highlight that your situation is very unusual, i.e. that in the vast majority of cases, an institution offering a payment will go through with it, rather than needing to be taken to FOS.

It's completely understandable to escalate a complaint about a regulated financial institution to FOS, but unfortunately they're not obliged to deal with complaints about complaints, on what is effectively a technicality, as discussed in another thread:

https://forums.moneysavingexpert.com/discussion/comment/79209846/#Comment_79209846

So, in this particular case (which is undoubtedly unusual), you don't have access to recourse via FOS and would need to pursue via MCOL (aka small claims).

Thank you for phrasing it in a better way than I could.

Undervalued

nossa_2 said:

Outlier? Please explain.

My complaint about a financial institution regulated by FCA my logical brain sends me to FOS.

Logical maybe. But wrong on at least this occasion.

As another poster has explained, you are seeking to make a complaint about what is now an unpaid debt which is outside the FOS remit.

Your complaint was settled directly with the company, without the involvement of the FOS. You could have rejected the settlement offer and progressed the matter to the FOS but you didn't. You accepted the firm's offer so they are now in your debt. If they don't pay (which frankly seems incredibly unlikely) your only option is to sue them.

In any FOS type scheme there has to be rules about what is and isn't included, timescales etc. So, there are always going to be some situations which fall outside of their coverage. No two people would draw the lines in exactly the same place.

nossa_2

Eskbanker thank you for putting some clarity into “outlier” but I think we need to take a step back.

The FOS is a taxpayer funded adjudicator supposedly unbiased in sorting out complaints between consumer and financial businesses.

According to MSE the three things the FOS look at are:

• The law of the land. The primary source is the law. If companies' actions break the law, then it's clear-cut.

• Regulators' rules and guidance. The rules of regulators, including the Financial Conduct Authority (FCA), also play a key part. If the FCA has indicated how it wants firms to behave and a firm breaks that, it can be deemed unfair.

• Good industry practice. This is the most interesting one, as it allows the ombudsman to define what good practice is.

The ethos of the FOS supposedly has a broad reach and they should not be solely using the FCA handbook to actively pick and choose rules to look for get out clauses (that is wholly biased), which is clear they have done in the simple matter I have outlined here. That behavior goes against the essence of why the FOS was created

Why would the FCA in its comprehensive handbook with many rules and guidance, include FCA Disp 1.4.1(5) that states:

“institutions should comply promptly with any offer of remedial action or redress accepted by the complainant"

How else would the above be interpreted except to underline that any redress offered and accepted should be applied. Again I ask why would any institution bother honoring the redress they offer if they cannot be held accountable by the FOS.

As you said Eskbanker this is an unusual case but if this becomes acceptable it wont be.

eskbanker

nossa_2 said:

The FOS is a taxpayer funded adjudicator supposedly unbiased in sorting out complaints between consumer and financial businesses.

According to MSE the three things the FOS look at are:

• The law of the land. The primary source is the law. If companies' actions break the law, then it's clear-cut.

• Regulators' rules and guidance. The rules of regulators, including the Financial Conduct Authority (FCA), also play a key part. If the FCA has indicated how it wants firms to behave and a firm breaks that, it can be deemed unfair.

• Good industry practice. This is the most interesting one, as it allows the ombudsman to define what good practice is.

The ethos of the FOS supposedly has a broad reach and they should not be solely using the FCA handbook to actively pick and choose rules to look for get out clauses (that is wholly biased), which is clear they have done in the simple matter I have outlined here. That behavior goes against the essence of why the FOS was created

I think you're confusing two different things here - the remit of the FOS (i.e. which activities it deals with) is tightly defined by legislation but the way in which it discharges those responsibilities does encompass a broader view than solely the legal.

This is summed up at https://www.financial-ombudsman.org.uk/who-we-are/make-decisions

Our powers are set out in Part XVI and Schedule 17 of the Financial Services and Markets Act 2000. We take into account the law, codes and good practice that applied at the time of the event. We also follow the rules in the Financial Conduct Authority's (FCA) handbook, although we’re operationally independent of the regulator.

We make decisions on the facts and evidence available in each case. Either side can tell us what they remember saying or being told. Written evidence or paperwork from the time is often very helpful. But if it isn’t available, it doesn’t mean we’ll automatically uphold or reject a complaint. The right outcome in one case may not be the right outcome in another as individual circumstances can vary so much. And, the decision we come to on what is fair and reasonable in all the circumstances of the case may be different to what a court would decide applying legal rules. 

As the institution advised you, https://www.handbook.fca.org.uk/handbook/DISP/2/3.html is the section of the FCA handbook that explains which activities must be dealt with by FOS.

nossa_2 said:

Why would the FCA in its comprehensive handbook with many rules and guidance, include FCA Disp 1.4.1(5) that states:

“institutions should comply promptly with any offer of remedial action or redress accepted by the complainant"

How else would the above be interpreted except to underline that any redress offered and accepted should be applied.

It's not a surprise that the FCA would say this, and yes, you have every right to expect that the institution should comply with it....

nossa_2 said:

Again I ask why would any institution bother honoring the redress they offer if they cannot be held accountable by the FOS.

...but just because the FCA requires that institutions honour redress offers doesn't actually mean that the FOS is a means of enforcement.

Returning to the outlier comment, in the vast majority of cases, institutions will honour such offers, and that's why there's little evidence of widespread shock about FOS's inability to enforce this.

nossa_2 said:

Despite numerous emails and a secure message repeating my acceptance and asking for the £100 offered they did not reply or pay their offer.

Have you tried speaking to someone there?  I'd imagine this to be some sort of admin error rather than a deliberate decision to try to evade their responsibilities, so would have thought there'd be mileage in exhausting all avenues prior t o going down the legal route....

nossa_2

Eskbanker - thankyou again for your comments I'm enjoying this discussion and will look more closely at the other comments you have highlighted.

Your last comment about speaking to someone - I emailed twice (official customer service address) getting no reply so I secure messaged them through my a/c which they did acknowledge via secure message but did nothing, 2 phone calls where I was told they would come back to me and did not and so I referred to the FOS after 8 weeks. Sainsburys told the FOS they did not receive the emails but admitted they found a secure message but did not and were not asked to explain why they ignored that message and they could not find my phone calls.

So looking at the behavior/ rules that I was understanding the FOS would consider I thought law (offer & acceptance = contract) breach of contract, failing FCA guidelines/rules and best practice - I would like to see the best practice handbook that would advise on this behavior.

I have requested my phone calls from Sainsburys under DSAR but they have failed to provide them (this was requested in May) even on this complaint I have a handler finally contact me 5 weeks ago (3 months after raising complaint) who states they are unable to email me (they bounce back) but cant sent me the bounce back reports has never made contact since, I chased a week ago to be told they had not heard back from the data dept. I have just reported this to IOS.

There appears to be a huge communication issue in Sainsburys if you believe them and will no doubt end up in the courts

Undervalued

eskbanker said:

nossa_2 said:

The FOS is a taxpayer funded adjudicator supposedly unbiased in sorting out complaints between consumer and financial businesses.

According to MSE the three things the FOS look at are:

• The law of the land. The primary source is the law. If companies' actions break the law, then it's clear-cut.

• Regulators' rules and guidance. The rules of regulators, including the Financial Conduct Authority (FCA), also play a key part. If the FCA has indicated how it wants firms to behave and a firm breaks that, it can be deemed unfair.

• Good industry practice. This is the most interesting one, as it allows the ombudsman to define what good practice is.

The ethos of the FOS supposedly has a broad reach and they should not be solely using the FCA handbook to actively pick and choose rules to look for get out clauses (that is wholly biased), which is clear they have done in the simple matter I have outlined here. That behavior goes against the essence of why the FOS was created

I think you're confusing two different things here - the remit of the FOS (i.e. which activities it deals with) is tightly defined by legislation but the way in which it discharges those responsibilities does encompass a broader view than solely the legal.

This is summed up at https://www.financial-ombudsman.org.uk/who-we-are/make-decisions

Our powers are set out in Part XVI and Schedule 17 of the Financial Services and Markets Act 2000. We take into account the law, codes and good practice that applied at the time of the event. We also follow the rules in the Financial Conduct Authority's (FCA) handbook, although we’re operationally independent of the regulator.

We make decisions on the facts and evidence available in each case. Either side can tell us what they remember saying or being told. Written evidence or paperwork from the time is often very helpful. But if it isn’t available, it doesn’t mean we’ll automatically uphold or reject a complaint. The right outcome in one case may not be the right outcome in another as individual circumstances can vary so much. And, the decision we come to on what is fair and reasonable in all the circumstances of the case may be different to what a court would decide applying legal rules. 

As the institution advised you, https://www.handbook.fca.org.uk/handbook/DISP/2/3.html is the section of the FCA handbook that explains which activities must be dealt with by FOS.

nossa_2 said:

Why would the FCA in its comprehensive handbook with many rules and guidance, include FCA Disp 1.4.1(5) that states:

“institutions should comply promptly with any offer of remedial action or redress accepted by the complainant"

How else would the above be interpreted except to underline that any redress offered and accepted should be applied.

It's not a surprise that the FCA would say this, and yes, you have every right to expect that the institution should comply with it....

nossa_2 said:

Again I ask why would any institution bother honoring the redress they offer if they cannot be held accountable by the FOS.

...but just because the FCA requires that institutions honour redress offers doesn't actually mean that the FOS is a means of enforcement.

Returning to the outlier comment, in the vast majority of cases, institutions will honour such offers, and that's why there's little evidence of widespread shock about FOS's inability to enforce this.

nossa_2 said:

Despite numerous emails and a secure message repeating my acceptance and asking for the £100 offered they did not reply or pay their offer.

Have you tried speaking to someone there?  I'd imagine this to be some sort of admin error rather than a deliberate decision to try to evade their responsibilities, so would have thought there'd be mileage in exhausting all avenues prior t o going down the legal route....

Quite!

I would be amazed if somebody in this bank (or whatever) has decided not to pay £100, contrary to their agreement with the client.

Also, even if this was £100 awarded by a civil court, the court itself doesn't enforce payment. It doesn't magically whisk the defendant off to jail or freeze his bank account. Nor does it pass you over to a free service to do it for you.

The plaintiff has to take further steps, initially at their own expense, if the defendant doesn't pay. In theory those costs will be added to what is due but quite often the "winner" ends up out of pocket. Not "right" but that is how it is.

eskbanker

nossa_2 said:

Your last comment about speaking to someone - I emailed twice (official customer service address) getting no reply so I secure messaged them through my a/c which they did acknowledge via secure message but did nothing, 2 phone calls where I was told they would come back to me and did not and so I referred to the FOS after 8 weeks. Sainsburys told the FOS they did not receive the emails but admitted they found a secure message but did not and were not asked to explain why they ignored that message and they could not find my phone calls.

OK, fair enough, I was just suggesting phone contact as you hadn't mentioned this, but if you've tried that already then that answers that question.

nossa_2 said:

So looking at the behavior/ rules that I was understanding the FOS would consider I thought law (offer & acceptance = contract) breach of contract, failing FCA guidelines/rules and best practice - I would like to see the best practice handbook that would advise on this behavior.

Presumably a rhetorical question - their conduct is clearly in breach of FCA regulations, but as above it just doesn't fall within the FOS remit so that avenue isn't open to you.

nossa_2 said:

I have requested my phone calls from Sainsburys under DSAR but they have failed to provide them (this was requested in May) even on this complaint I have a handler finally contact me 5 weeks ago (3 months after raising complaint) who states they are unable to email me (they bounce back) but cant sent me the bounce back reports has never made contact since, I chased a week ago to be told they had not heard back from the data dept. I have just reported this to IOS.

Doesn't seem very likely that Apple will be able to help you here

However, yes, a failure to comply in a timely manner with a valid DSAR is a matter for the ICO if that's who you mean, although that won't get you your money.

nossa_2 said:

There appears to be a huge communication issue in Sainsburys if you believe them and will no doubt end up in the courts

It would appear so, so if you've exhausted their formal complaints process and hit the FOS brick wall then it does look like time to go to MCOL, although a letter before action might just have the desired effect of kicking them into action....

nossa_2

ICO lol yes that's who I meant these acronyms are getting to me 

Manxman_in_exile

@nossa_2 -  Are you absolutely 100% sure that you have not received the £100 (I'd triple-check if I were you) and that the offer from Sainsburys was unconditional and not dependant on your doing anything else - apart from accepting it?  (Are you sure you have communicated your acceptance of their offer to them?).

It seems most likely to me that this is either a simple admin or communication error at Sainsburys (as already suggested by @eskbanker) or there is a bit more to this story than you have explained.

Either way, if you feel you've exhausted every route with Sainsburys and you have tried everything you can think of to get them to pay you what they've agreed to pay, then your only practical course of action is to send them a Letter Before Claim.  Send them evidence of their offer (and your acceptance), together with a timeline of your subsequent communications with them regarding their non-payment, and give them 14 days to pay up.  And tell them that if you have not recieved payment within that 14 days you'll issue a claim for the £100, plus claim fee, plus £19 for your time and inconvenience.

If everything is as you've explained here, I'd be amazed if they didn't pay up immediately.  (But if they don't, make sure you follow through with the threat to issue a claim after the 14 days is up).

If you are just trying to establish some valedictory point of principle here against the FOS (or Sainsburys), I'd suggest you are wasting your time and it'd be better spent drafting the Letter Before Claim...

nossa_2

Nothing received and no I'm not trying to prove a point I am just shocked at their behaviour and more shocked that the FOS can do nothing. So really I shouldn't be shocked at their behaviour they are obviously aware of this gaping hole in the rights of their customers