It is not the Ombudsman's obligation to apply the law

It is not the Ombudsman's obligation to apply the law


Author: Paula Swain

Applies to: UK wide

A recent case demonstrates the role of the Financial Ombudsman Service and the importance for creditors of seizing the opportunity to put their case across to FOS when they have the chance

In The Queen on the Application of Clifford v Financial Ombudsman Service, 2016, the high court in Manchester was asked to decide whether permission to proceed with judicial review of an Ombudsman's decision should be granted.

FOS upheld a complaint in 2015 about the selling of PPI. The applicant seller sought permission for a judicial review of the decision. This is something that many readers might have considered upon receipt of a disappointing decision from FOS. The applicants felt that Ombudsman had failed properly or sufficiently to investigate the matter.

The case refers to section 225 of the Financial Services and Markets Act, and the obligation on the Ombudsman to resolve complaints speedily and with minimum formality. FOS is obliged to allow redress in appropriate circumstances which is both fair and reasonable. It is not FOS' obligation to apply the law - this is a matter for a court. The aim of FOS is to provide appropriate redress where a complaint is upheld. FOS is not obliged to consider the law as an exclusive guide to the resolution of the complaint, but should have regard to published guidance applicable.

The applicant alleged that certain allegations made by the customer were false, and that the Ombudsman should have been assiduous in the search for evidence before making a decision.

The court rejected the application, and upheld the Ombudsman's decision noting that in the firm's representations to the Ombudsman no reference was made to any falsity on the customer's part. This allegation was raised after the decision had been made. It was also noted that the firm had not made representations challenging the allegation that the firm had made a recommendation in relation to the policy. As to the guidance considered by the Ombudsman, the guidance was not guidance directed to the Ombudsman, it was guidance directed to the firm. The Ombudsman is entitled to have regard to this.

The court concluded that: 'I am satisfied that the Ombudsman gave careful consideration to whether or not there was a personal recommendation, did so by reference to available guidance and from a careful consideration of the arguable case has been raised.'

This case advocates the importance of considering FOS complaints carefully and ensuring that you have provided FOS with all relevant information and your detailed response in full. There is value in obtaining early legal advice.


This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.