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ombudsman news

issue 89

October/November 2010

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.

Why doesn't the ombudsman service restrict itself to dealing only with the specific arguments that a consumer raises when making a complaint- You seem to look behind what a consumer has actually said rather than just sticking to the points they have mentioned.

A. The way in which consumers express complaints about financial businesses can vary considerably. Some present specific reasoned arguments about the matters they are complaining about. But most consumers set out their complaints in more general terms. And some of them use simplified templates from newspapers or websites, while others are represented by commercial claims-management companies, which may use standard letters that make little reference to the particular details of the individual case.

Some businesses have suggested that we should only pursue complaints where consumers specifically raise relevant arguments. But we do not expect consumers to present their case to us as if they were making a formal set of legal "pleadings". The ombudsman service was set up to resolve complaints "quickly and with minimum formality". As an alternative to the civil courts, our aim is to "level the playing field" between the consumer and the business. So 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 - Green Denman v Financial Ombudsman Service [2003] EWHC 338 (Admin) - when the court considered a dispute involving pensions advice. The ombudsman had upheld the complaint on the basis of points that were not explicitly raised by the consumer himself - and the judge agreed with the ombudsman's approach. There is more information about this in our FAQs for businesses.

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 where we are satisfied that a business involved in a dispute has notice of the areas of concern they need to address, we do not consider it unfair for us to go beyond the particular points the consumer has raised - to review the underlying grievance or complaint. We will focus on the substance of the complaint - not on the precise terms in which the consumer expressed their concerns.

Businesses are required by the FSA's rules to take a responsible approach in considering complaints - however they are made. And it is not appropriate or fair for businesses to interpret consumers' complaints in an over-prescriptive or technical way - so as to side-step the general thrust of the consumer's concerns. We note that the FSA has made similar points to businesses in its own observations about complaints-handling.

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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.