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DISP 3.6 Determination by the Ombudsman

Fair and reasonable

DISP 3.6.1RRP

The Ombudsman will determine a complaint by reference to what is, in his opinion, fair and reasonable in all the circumstances of the case.17

17
DISP 3.6.2GRP

Section 228 of the Act sets the 'fair and reasonable' test for the Compulsory Jurisdiction (other than in relation to a “relevant complaint” within the meaning of section 404B(3) of the Act12)8 and DISP 3.6.1 R extends it to the Voluntary Jurisdiction.17

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DISP 3.6.3GRP

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

DISP 3.6.4RRP

17In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account:

  1. (1)

    relevant:

    1. (a)

      law and regulations;

    2. (b)

      regulators' rules, guidance and standards;

    3. (c)

      codes of practice; and

  2. (2)

    (where appropriate) what he considers to have been good industry practice at the relevant time.

DISP 3.6.5GRP

17Where the Ombudsman is determining what is fair and reasonable in all the circumstances of a relevant new complaint or a relevant transitional complaint or a relevant new claims management complaint4, the Ombudsman Transitional Order, the Mortgage and General Insurance Complaints Transitional Order and the Claims Management Order make provision for him4 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 relevant4 order came into effect.

Consumer redress schemes

DISP 3.6.5AGRP

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, unless the complainant and the respondent agree that the complaint should not be dealt with in accordance with the consumer redress scheme.311

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The Ombudsman's determination

DISP 3.6.6RRP

17When the Ombudsman 9 has determined a complaint:

9
  1. (1)

    the Ombudsman will give both parties a signed written statement of the determination, giving the reasons for it;

  2. (2)

    the statement will require the complainant to notify the Ombudsman ,9 before the date specified in the statement, whether he accepts or rejects the determination;

  3. (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. (4)

    subject to paragraph (4A),9 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;

    9
  5. (4A)

    9the complainant is not to be treated as having rejected the determination under paragraph (4) if all the following conditions are met:

    1. (a)

      the complainant notifies the Ombudsman after the specified date of the complainant's acceptance of the determination;

    2. (b)

      the complainant has not previously notified the Ombudsman of the complainant's rejection of the determination;

    3. (c)

      in the view of the Ombudsman, the failure to comply with the time limit for acceptance was as a result of exceptional circumstances;

  6. (5)

    the Ombudsman will notify the respondent of the outcome and, if the complainant is treated as having rejected the determination under paragraph (4), the effect of paragraph (4A).9

DISP 3.6.7RRP
  1. (1)

    9An Ombudsman may correct any clerical mistake in the written statement of an Ombudsman's determination, whether or not the determination has already been accepted or rejected.

  2. (2)

    Any failure to comply with any provisions of the procedural rules made by the FOS Ltd does not of itself render an Ombudsman's determination void.

Reports of determinations

DISP 3.6.8GRP
  1. (1)

    9The FOS Ltd will publish a report of any Ombudsman's determination, save that if the Ombudsman who made the determination informs the FOS Ltd that, in the Ombudsman's opinion, it is inappropriate to publish a report of that determination (or any part of it), the FOS Ltd will not publish a report of that determination (or that part, as appropriate).

  2. (2)

    Unless the complainant agrees, a report will not include the name of the complainant, or particulars which (in the opinion of the FOS Ltd) are likely to identify the complainant.

  3. (3)

    The FOS Ltd may charge a reasonable fee for providing a copy of a report.