DISP 3.6 Determination by the Ombudsman
Fair and reasonable
Section 228 of the Act sets the 'fair and reasonable' test for the Compulsory Jurisdiction (other than in relation to consumer redress schemes)8 and the Consumer Credit Jurisdiction and DISP 3.6.1 R extends it to the Voluntary Jurisdiction.17
Where a complainant makes complaints against more than one respondent in respect of connected circumstances, the Ombudsman may determine that the respondents must contribute towards the overall award in the proportion that the Ombudsman considers appropriate.17
17In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account:
- (1)
relevant:
- (a)
law and regulations;
- (b)
regulators' rules, guidance and standards;
- (c)
codes of practice; and
- (a)
- (2)
(where appropriate) what he considers to have been good industry practice at the relevant time.
17Where the Ombudsman is determining what is fair and reasonable in all the circumstances of a relevant new complaint or a relevant transitional complaint, the Ombudsman Transitional Order and the Mortgage and General Insurance Complaints Transitional Order require him to take into account what determination the former Ombudsman might have been expected to reach in relation to an equivalent complaint dealt with under the former scheme in question immediately before the relevant transitional order came into effect.
Consumer redress schemes
8As a result of section 404B of the Act, if the subject matter of a complaint falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, the Ombudsman will determine the complaint by reference to what, in the opinion of the Ombudsman, the redress determination under the consumer redress scheme should be or should have been.
The Ombudsman's determination
17When the Ombudsman has determined a complaint:
- (1)
the Ombudsman will give both parties a signed written statement of the determination, giving the reasons for it;
- (2)
the statement will require the complainant to notify the Ombudsman in writing, before the date specified in the statement, whether he accepts or rejects the determination;
- (3)
if the complainant notifies the Ombudsman that he accepts the determination within that time limit, it is final and binding on both parties;
- (4)
if the complainant does not notify the Ombudsman that he accepts the determination within that time limit, the complainant will be treated as having rejected the determination, and neither party will be bound by it; and
- (5)
the Ombudsman will notify the respondent of the outcome .