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ombudsman news

issue 78

July/August 2009

ombudsman news "Q&A" page

featuring questions that businesses and advice workers have raised recently with the ombudsman's technical advice desk - our free, expert service for professional complaints-handlers

In issue 77 of ombudsman news (May/June 2009) you mentioned confidentiality when handling complaints. Can you confirm the legal position on this, for businesses wanting to submit evidence to the ombudsman in confidence-

This is an area where businesses sometimes misunderstand the legal position. A business will sometimes argue - incorrectly - that a particular piece of evidence provided by a consumer is "inadmissible". Or a business may say that information we have asked for is "confidential" (when it is actually just embarrassing or awkward - such as bluntly-phrased comments on customer notes).

The rules relating to evidence submitted to the ombudsman are set out in the "DISP" section of the FCA handbook.

These rules say (at DISP 3.5.9) that the ombudsman may:

  • exclude evidence that would otherwise be admissible in a court - or include evidence that would not be admissible in a court;
  • accept information in confidence - where we consider it appropriate to do so;
  • reach a decision on the basis of what information has actually been supplied - taking into account a business's failure to provide information we have requested; and
  • dismiss a complaint if a consumer fails to supply information we have requested.

The law provides various exceptions to a financial business's duty of confidentiality. One is that our statutory right to demand information overrides a business's duty of confidentiality to any third party. But we may agree to treat some evidence as confidential, for example where it involves sensitive material about third parties and/or security information.

If you believe some information should be confidential between you and the ombudsman service, you should provide the information anyway, mark clearly whatever you would like us to consider treating as confidential - and tell us why you think we should not pass it to the consumer. We will consider the request carefully.

The rules (DISP 3.5.11) give the ombudsman the power to require a business to provide evidence - and failure to comply with the request can be dealt with by the courts.

The rules (DISP 3.5.12) also allow the ombudsman to take into account evidence from third parties, including the FSA, other regulators, experts in industry matters and experts in consumer matters.

Is it true that Walter Merricks is leaving the ombudsman service-

Yes, Walter Merricks will be stepping down at the end of October after ten years as chief ombudsman - to become the first chair of the Office of the Health Professions Adjudicator.

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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.