Nonetheless, only one in every eight Fos complaints is determined by a final Ombudsman decision. The majority of Fos rulings are views expressed informally by adjudicators, and these will remain unpublished. The incentive for firms to settle at the adjudication stage is obvious: only those confident in their case or their regulatory and brand reputation will refer difficult cases to an Ombudsman for a final decision knowing it will be published.
Despite the welcome benefits to be derived from increased transparency, there are new concerns about the manner in which the new publication policy has been implemented. It is unclear when the Ombudsman will exercise discretion against publication – for example, where a complaint is settled before a final decision is issued and accepted by the complainant. The sheer numbers of published cases – there will be thousands each year – render it impossible for anyone (let alone over-stretched firms’ compliance departments) to consider them all making it unclear how far firms must go in discharging their obligations under the rules to consider published guidance from the Fos and the regulator.
Firms are also disappointed by the decision to grant only complainants anonymity in published decisions. While the Fos and the FCA already publish statistics on the number of complaints each financial business has had against it by complaint category, firms were concerned that published Fos determinations will now be used as a form of regulatory censure or complaints-led enforcement.
Limited
For many years since the establishment of the Fos in 2001, the legal profession tended to be dismissive of it, its limited powers and its odd, non-legal jurisdiction. This attitude is now changing with a series of court decisions, which have boosted the Ombudsman’s power and jurisdictional reach. All but the largest claims by private individuals or eligible small businesses now go through the Fos rather than the courts.
In a series of cases the Fos’ approach has been upheld by the administrative courts in repeated judicial review successes on questions of its jurisdiction. The high court has confirmed that the Fos need not apply the letter of the law when reaching its decisions. With the publication of Fos determinations, the Ombudsman is now in a position to create its own financial services case law, unfettered by the restrictions of common law.
