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ombudsman news

issue 26

March 2003

ask ombudsman news - your questions answered

mortgage endowment policy mis-sold in 1987 - who's responsible-

A client at the advice centre where I work believes she was mis-sold a mortgage endowment policy back in August 1987. But when she complained to the insurance company, they said it wasn't them who sold the policy. They told her that her mortgage lender arranged the policy, so she should contact them. But the lender told her that back in 1987 it didn't give advice on mortgages. So it said that if the policy was mis-sold, the insurance company must be responsible. I don't know what to suggest she should do now. Can you help-

This lady took out her policy before the Financial Services Act 1986 came into effect on 29 April 1988. The rules and regulations that now govern the sale of these policies were not in force when her policy was sold. So there will be less documentary evidence available than for more recent sales to show who sold the policy, what was said and why it was sold.

When we look at complaints such as this, we check if there is any evidence of advice being given and - if so - by whom. If the customer asserts that they were given advice then, unless contrary evidence is available, we are likely to find that this is true. Most endowment policies are sold rather than bought, so it is likely that the customer would have been given some form of advice at the time.

The factors we consider when trying to establish who gave the advice include:

  • where the meeting took place;
  • whether there was more than one meeting;
  • how many people were involved;
  • who the customer thought was advising them;
  • who is recorded as "agent" on the policy proposal form; and
  • who received commission for the sale (initially and on an ongoing basis).

Once we have weighed up these factors we should be able to determine, on a balance of probabilities, which party, if any, provided the advice and is therefore responsible for the sale.

can the time limit for bringing complaints to the ombudsman be extended-

My understanding is that a consumer has six months to bring a complaint to the ombudsman, after receiving the firm's final response letter. Can this time limit ever be extended-

We have always been able to consider extending the six-month (and other) time limits, in exceptional circumstances. The rules suggest this could be where the customer is incapacitated, or where the firm has not told the consumer about the ombudsman and the time limit.

A recent rule change now also means that if a firm does not object to our considering a case that is referred to us outside the time limits, we can consider the complaint. However, in both cases, it remains for the ombudsman to decide whether or not to extend the time limit.

(See "changes to the time limits for making a complaint" for more on this and other rule changes concerning time limits.)

Walter Merricks, chief ombudsman

ombudsman news gives general information on the position at the date of publication. It is not a definitive statement of the law, our approach or our procedure.

The illustrative case studies are based broadly on real-life cases, but are not precedents. Individual cases are decided on their own facts.