This section answers a number of frequently-asked questions (FAQs) about:
does the ombudsman service restrict its work on a complaint to the specific arguments raised by the consumer – as in legal pleadings?
The way in which consumers express their complaints about financial businesses can vary significantly. Some present specific reasoned arguments about the shortcomings they are complaining about. Mostly, however, complaints that consumers bring to the ombudsman service are more general in nature.
Some consumers use simplified templates from newspapers and websites to pursue their complaint. Others are represented by commercial claims-management companies, some of which use standard letters that make claims with little reference to the particular facts of each individual case.
This has led some businesses to suggest that the ombudsman should only pursue complaints where consumers clearly raise relevant arguments and specifically identify the legal claims they are making.
However, the ombudsman service was set up by law to resolve complaints "quickly and with minimum formality". As an informal alternative to the civil courts, our aim is to "level the playing field" between the consumer and the business.
This means we do not expect consumers to present their case to us as if they were making a set of legal "pleadings". We generally look beyond the particular way in which a consumer has expressed their complaint – to assess whether they have suffered financial detriment for which the business might be responsible.
This approach was approved by the High Court in 2003. The court considered a dispute involving pensions advice given by a financial adviser – where the ombudsman had upheld the complaint on the basis of points that the consumer had not himself explicitly raised. Agreeing with the ombudsman's approach, the judge said:
A party to the dispute is entitled to know the areas of concern which he must address. In some contexts it is unfair for a decision-maker to go beyond the points made by the complainant. In litigation before the courts the issues are normally defined in the parties’ pleadings (although they may be amended to raise an issue suggested by the court if no unfairness results).
The present context is very different. Most complainants are insufficiently versed in the complexity of the subject and would be unable unassisted to assess whether the advice they were given was sound or inadequate.
It is for this reason that they turn to financial advisers for advice; it is because their relative ignorance renders them vulnerable that financial advisers are regulated; it is for that reason that financial advisers were required to review their pensions advice; and it is to provide an informal but informed adjudicator that the financial ombudsman scheme was established.
Where we are satisfied that a business involved in a dispute has notice of the areas of concern that they need to address, we do not consider it unfair for us to go beyond the particular points made by the consumer – in order to review the underlying grievance or complaint. We will focus on the substance of the complaint – not the precise terms in which the consumer expressed the complaint.
Ideally, of course, consumers – and especially commercial claims-management companies acting on their behalf – should try to identify the relevant points as clearly as possible, when they make a complaint.
But businesses are required by the regulator's rules to take a responsible approach in considering complaints – however they are made. It is not appropriate or fair for businesses to interpret in an over-prescriptive or technical way points made by consumers – so as to side-step the general thrust of a consumer's concerns. We note that the regulator has made similar points to businesses in its own observations about complaints-handling.