We expect this paper to be of interest to financial businesses, consumers and those representing them, as well as other stakeholders interested in the work of the Financial Ombudsman Service.
This paper sets out how the ombudsman service will publish ombudsman decisions. It is the conclusion of a conversation that we began in September 2011 after the Government announced its proposals to require us to publish ombudsman decisions. The Financial Services Act has turned the proposals into a formal, legal obligation.
This paper summarises how we expect to approach issues around the publication of decisions, as the first decisions start to be published later this year. We will want to learn from feedback from users and others who have an interest in how these arrangements are working in practice.
So the picture that we set out here is unlikely to stand still. We will continue to assess the impact of what we publish and listen to what people tell us.
The Financial Services Bill 2012 received Royal Assent and became the Financial Services Act on 19 December 2012. One of the amendments that it made to the Financial Services and Markets Act 2000, our founding legislation, was to require the Financial Ombudsman Service (the scheme operator) to publish all ombudsman final decisions on complaints (ombudsman determinations), unless it is the opinion of an ombudsman that there are good grounds for not doing so.
This comes into force from 1 April 2013 – as set out in the Financial Services Act 2012:
This new obligation on the ombudsman service will supplement the steps we already take to make our work accessible and transparent for all our users. We already publish information about our general approach to cases in our online technical resource and in our regular newsletter, ombudsman news.
In addition, we already publish significant decisions where it is clear to us that there is public interest in our doing so – typically where large numbers of similar complaints have been raised – or where individual decisions help illustrate our approach to wider issues.
The new legislative provisions take a further step in ensuring the transparency of our work. Publication of almost all individual decisions will allow academics – and others with a deep interest in the detail of our casework – to study the rich picture mapped out by the many ombudsman decisions we make each year.
Consumers and complaint handlers may continue to find our summaries of cases in ombudsman news – and the information in our online technical resource – of more help and interest, in explaining how we tackle cases and resolve issues.
The new requirement described in this paper involves only the publication of final ombudsman decisions. Typically only around one in eight of all complaints formally referred to the ombudsman service are determined by ombudsmen. Most cases are resolved informally by our adjudicators – with the agreement of the individual consumers and businesses concerned.
The plans described here will have no direct impact on that work – and the informal conclusions reached by our adjudicators will remain confidential between the parties to each individual dispute. Only in those cases where there is an ombudsman decision will we publish our detailed conclusions – and publication will be limited to the specific determination reached by the ombudsmen.
In September 2011 we published a discussion paper, “publishing ombudsman decisions: next steps” – in response to the Government’s proposals to require us to publish ombudsman decisions. This was an early discussion of what we believed our approach would be. We asked people for their views on a number of issues such as what we publish, how we publish, when we publish, who we identify – and the potential impact of publishing final decisions that we make on complaints.
In January 2012 we summarised the responses we had received – in our paper, “publishing ombudsman decisions: summary of responses”. In this paper we set out further what we believed our approach to publishing ombudsman decisions would be, having considered feedback both from businesses and consumer groups.
Following previous dialogue with interested parties – and in the light of the finalised legislation – we have decided how we should proceed initially.
In outline, our plan is to publish ombudsman decisions in full, subject only to removing all reference to the identity of the consumer (and certain other clearly sensitive information). We will retain the identity of the financial business in the published decision.
Decisions will be placed on our website in a searchable and downloadable format. We will publish the first batch of decisions later in the year – once we have a sufficient volume of ombudsman decisions to publish, and we are satisfied that our systems and controls are working effectively. Decisions will be added at regular intervals.
This approach will require some changes to the way in which decisions are at present structured and communicated. But our approach will ensure that the outline issues and decisions of the ombudsmen are described in full – albeit recognising that they are a final part of a longer process that may have narrowed down the issues at dispute informally, before the ombudsman becomes involved.
Our ombudsman decisions vary considerably in form and length – and will continue to do so. Simpler, lower value issues may be dealt with in a page – perhaps confirming that the business has acted fairly, or that it should make a modest payment to the consumer. More complex and higher value cases typically require more detailed and lengthy decisions – especially if a large number of issues have remained unresolved after the initial stages of our process.
We considered, but rejected, the option of publishing specially produced summaries of all decisions. That might have enabled a more standardised approach to publication. But it would have been difficult and expensive to implement in practice – and it would have left open questions about the status of both the summary and the actual decision.
Our decision to include the name of the financial business has, perhaps inevitably, resulted in mixed feedback. Many – but by no means all – financial businesses had concerns about including the name of the business. However, most consumer groups welcomed the step. The legislation makes a clear distinction between the identity of the complainant and the identity of others.
To exclude the names of businesses from the public record of our decisions would be difficult to achieve in practice. In most cases, we deal with details such as product names, policy wording or other practice – which may be sufficient to identify the business. Indeed, the identity of the business helps place a specific context around the case. We believe that including the identity of the business is practical and fair – and is unlikely to have unreasonable adverse consequences for businesses.
To prepare for the publication of decisions, we are making some adjustments to the way we communicate our decisions. One change is how we describe consumers in decisions. At present our decisions name the consumer – but we will not be able to do this in our published decisions.
So in future, after an introductory explanation that will be available only to the parties to the case, we will no longer refer to consumers by name in the body of the decision. So Mrs Murray may become Mrs L in our published decision.
Information that might help triangulate the identity of the consumer will also be omitted or expressed in terms that minimise the risk of disclosure. So “a hairdresser in Dumbarton”, might become “a small shop owner” without reference to location. We will also not disclose information such as account details.
However, it is inevitable that our decisions sometimes need to discuss sensitive issues – such as medical conditions or details of personal finances. In these circumstances it is particularly important to avoid disclosing the identity of the consumer.
But equally, many of our cases need to be decided against an analysis of exactly such personal details – and to exclude the facts of the case would make the decision impossible to follow. For example, disputes around age or disability discrimination could of necessity require disclosure of the customer’s age or details of how their disability affects their access to financial services.
We will handle these cases very sensitively. In certain disputes – for example, where the case rests on the facts of a very unusual medical condition – it may be necessary for the ombudsman to decide not to publish the decision.
Similarly, we will not publish any information that we consider to be clearly commercially sensitive – or information about a product or practice that would help fraudulent activities or frustrate a regulatory or criminal investigation.
It is not normally necessary to identify other individuals in our decisions. So we would not disclose, for example, the identity of staff at a financial business. However, other organisations might need to be identified to make sense of the issues involved – for example, the name of the fund recommended by a financial adviser.