Have rules changed for Small Claims?

DullGreyGuy

A_Geordie said:

Not that I'm a pension expert but I'm curious why the FOS decided to handle a pension matter when the Pensions Ombudsman should be the correct route. I presume the FOS had jurisdiction if it related to a personal pension or a SIPP rather than a workplace pension. 

Many pensions are converted to annuities, particularly before pension freedoms when it was the only choice for a DC. Whilst many people call an annuity a "pension" its actually a form of insurance (the weirdest one because everything is backwards) and as such it falls under the jurisdiction of the FOS. 

DB schemes often go through a "buy out" process where they transfer their obligations to an insurer via annuities. Whilst most "bulk annuity" deals dont transfer the liability of incorrect calculations etc from before the transfer if the scheme no longer exists then authorities look to the insurer despite the contract.

Obviously speculating but certainly some "pension" related queries go to FOS rather than the Pensions Ombudsman. 

A_Geordie said:
I certainly wouldn't view them as consumer friendly.

They are meant to be neutral however the key difference from the courts is that they are obliged to find a "fair and reasonable" outcome. The courts are also neutral however are bound to follow the law pretty much blindly (hence the statue of justice is often shown blindfolded, uninfluenced by politics, wealth or fame, holding a set of scales to balance the evidence). 

As a consequence the ombudsman is seen as more leaning towards the customer because they can choose to ignore what the law says and go with what is fair instead. A good example of this was a case from several years ago where someone tried to make a S75 claim but the bank declined it as the payment had actually gone to a different company than the supplied so the Debtor - Creditor - Supplier triangle was broken. It turned out the company's card machine had broken and they'd borrowed one from the neighbouring business. The ombudsman acknowledged under the law the customer had no claim however felt it was unfair to penalise the customer who'd have had no knowledge that they weren't paying the supplier so upheld the complaint. 

A_Geordie

@DullGreyGuy I think we have differing views of the FOS and whilst I appreciate your explanation, it does not have unfettered discretion to make a determination based solely on what is fair and reasonable. Yes, they are not a court of law and are not required to decide in the same way that a court does, but they are duty bound to take into account the relevant law and any precedents as part of its decision and award (if any) - this has been confirmed in several court cases.

If they depart from the legal position then they then need to explain in their decision why they are departing form it, especially when the law is clear on the position that the complaint relates to. So long as the decision justifies why the legal position is not being followed, the FOS' broad discretion remains intact. As far as I'm aware the FOS decisions that have gone to court under judicial review have typically been found in the FOS favour as the decisions they made were clearly explained and followed the legal position and line of precedents. We have yet to see a court case where the FOS has completely, if not substantially disregarded the law and precedence and come up with some other decision. 

However, I do see very often that some of the decisions made by the FOS are questionable, particularly where they have not considered or referred to the evidence. I have seen some decisions say something along the lines of "Mr Bloggs has referred to X and Y legislation and A and B cases, but the Ombudsman is not a court of law and we are required to determine what is fair and reasonable". It's those kinds of decisions that need to be challenged as they fail to explain why they are disregarding the law, despite the FCA rules (DISP 3.6.4R(1)) saying otherwise. Sadly, due to the cost of bringing a judicial review, case law is limited in this area.

goodValue

Whilst most "bulk annuity" deals dont transfer the liability of incorrect calculations etc from before the transfer if the scheme no longer exists then authorities look to the insurer despite the contract.

I don't fully understand this.
It says that incorrect calculations cannot be transferred to the buy-out company.
But the phrase:
  if the scheme no longer exists then authorities look to the insurer despite the contract.

has me confused.
Is it a caveat to the non-liability described?