In this chapter, 'out of jurisdiction' means outside the Compulsory Jurisdiction, the Consumer Credit Jurisdiction and the Voluntary Jurisdiction in accordance with DISP 2.49

Where the respondent is a partnership (or former partnership), it is sufficient for the Ombudsman to communicate with one partner (or former partner).49

This chapter applies to the Ombudsman and to respondents.49

The Ombudsman will have regard to whether a complaint is out of jurisdiction.26

Unless the respondent has already had eight weeks to consider the complaint or issued a final response, the Ombudsman will refer the complaint to the respondent.26

7If the subject matter of a complaint falls to be dealt with by the respondent under a consumer redress scheme, and the time limits specified under the scheme for doing so have not yet expired, the Ombudsman will refer it to the respondent to be dealt with under the scheme.

Where the respondent alleges that the complaint is out of jurisdiction, the Ombudsman will give both parties an opportunity to make representations before he decides.26

Where the Ombudsman considers that the complaint may be out of jurisdiction, he will give the complainant an opportunity to make representations before he decides.26

Where the Ombudsman then decides that the complaint is out of jurisdiction, he will give reasons for that decision to the complainant and inform the respondent.26

Where the Ombudsman then decides that the complaint is not out of jurisdiction, he will inform the complainant and give reasons for that decision to the respondent.26

Where the Ombudsman considers that the complaint may be one which should be dismissed without consideration of the merits, he will give the complainant an opportunity to make representations before he decides.29

Where the Ombudsman then decides that the complaint should be dismissed without consideration of the merits, he will give reasons to the complainant for that decision and inform the respondent.29

The Ombudsman may dismiss a complaint without considering its merits if he considers that:

1. (1)

   the complainant has not suffered (or is unlikely to suffer) financial loss, material distress or material inconvenience; or

2. (2)

   the complaint is frivolous or vexatious; or

3. (3)

   the complaint clearly does not have any reasonable prospect of success; or

4. (4)

   the respondent has already made an offer of compensation (or a goodwill payment) which is:

   1. (a)

      fair and reasonable in relation to the circumstances alleged by the complainant; and

   2. (b)

      still open for acceptance; or

5. (5)

   the respondent has reviewed the subject matter of the complaint in accordance with:

   1. (a)

      the regulatory standards for the review of such transactions prevailing at the time of the review; or

   2. (b)

      [deleted]11

      11
   3. (c)

      any formal regulatory requirement, standard or guidance published by the FSA or other regulator in respect of that type of complaint;

   (including, if appropriate, making an offer of redress to the complainant), unless he considers that they did not address the particular circumstances of the case; or

6. (5A)

   the respondent has reviewed the subject matter of the complaint and issued a redress determination in accordance with the terms of a consumer redress scheme; or11

7. (6)

   the subject matter of the complaint has previously been considered or excluded under the Financial Ombudsman Service, or a former scheme (unless material new evidence which the Ombudsman considers likely to affect the outcome has subsequently become available to the complainant); or

8. (7)

   the subject matter of the complaint has been dealt with, or is being dealt with, by a comparable independent complaints scheme or dispute-resolution process; or

9. (8)

   the subject matter of the complaint has been the subject of court proceedings where there has been a decision on the merits; or

10. (9)

    the subject matter of the complaint is the subject of current court proceedings, unless proceedings are stayed or sisted (by agreement of all parties, or order of the court) in order that the matter may be considered under the Financial Ombudsman Service; or

11. (10)

    it would be more suitable for the subject matter of the complaint to be dealt with by a court, arbitration or another complaints scheme; or

12. (11)

    it is a complaint about the legitimate exercise of a respondent's commercial judgment; or

13. (12)

    it is a complaint about employment matters from an employee or employees of a respondent; or

14. (13)

    it is a complaint about investment performance; or

15. (14)

    it is a complaint about a respondent's decision when exercising a discretion under a will or private trust; or

16. (15)

    it is a complaint about a respondent's failure to consult beneficiaries before exercising a discretion under a will or private trust, where there is no legal obligation to consult; or

17. (16)

    it is a complaint which:

    1. (a)

       involves (or might involve) more than one eligible complainant; and

    2. (b)

       has been referred without the consent of the other complainant or complainants;

    and the Ombudsman considers that it would be inappropriate to deal with the complaint without that consent; or

18. (16A) 310

    it is a complaint about a pure landlord and tenant issue arising out of a regulated sale and rent back agreement; or

19. (17)

    there are other compelling reasons why it is inappropriate for the complaint to be dealt with under the Financial Ombudsman Service.29

The Ombudsman may dismiss a complaint without considering its merits, so that a court may consider it as a test case, if:

1. (1)

   before he has made a determination, he has received in writing from the respondent:

   1. (a)

      a detailed statement of how and why, in the respondent's opinion, the complaint raises an important or novel point of law with significant consequences; and

   2. (b)

      an undertaking in favour of the complainant that, if the complainant or the respondent commences court proceedings against the other in respect of the complaint in any court in the United Kingdom within six months of the complaint being dismissed, the respondent will: pay the complainant's reasonable costs and disbursements (to be assessed if not agreed on an indemnity basis) in connection with the proceedings at first instance and any subsequent appeal proceedings brought by the respondent; and make interim payments on account of such costs if and to the extent that it appears reasonable to do so; and

2. (2)

   the Ombudsman considers that the complaint:

   1. (a)

      raises an important or novel point of law, which has important consequences; and

   2. (b)

      would more suitably be dealt with by a court as a test case.29

The Ombudsman may refer a complaint to another complaints scheme where:

1. (1)

   he considers that it would be more suitable for the matter to be determined by that scheme; and

2. (2)

   the complainant consents to the referral.13

The Ombudsman will attempt to resolve complaints at the earliest possible stage and by whatever means appear to him to be most appropriate, including mediation or investigation.15

If the Ombudsman decides that an investigation is necessary, he will then:

1. (1)

   ensure both parties have been given an opportunity of making representations;

2. (2)

   send both parties a provisional assessment, setting out his reasons and a time limit within which either party must respond; and

3. (3)

   if either party indicates disagreement with the provisional assessment within that time limit, proceed to determination.15

If the Ombudsman considers that the complaint can be fairly determined without convening a hearing, he will determine the complaint. If not, he will invite the parties to take part in a hearing. A hearing may be held by any means which the Ombudsman considers appropriate in the circumstances, including by telephone. No hearing will be held after the Ombudsman has determined the complaint.15

A party who wishes to request a hearing must do so in writing, setting out:

1. (1)

   the issues he wishes to raise; and

2. (2)

   (if appropriate) any reasons why he considers the hearing should be in private;

so that the Ombudsman may consider whether:

1. (3)

   the issues are material;

2. (4)

   a hearing should take place; and

3. (5)

   any hearing should be held in public or private.15

1 5The Ombudsman may give directions as to:

1. (1)

   the issues on which evidence is required;

2. (2)

   the extent to which evidence should be oral or written; and

3. (3)

   the way in which evidence should be presented.

1 5The Ombudsman may:

1. (1)

   exclude evidence that would otherwise be admissible in a court or include evidence that would not be admissible in a court;

2. (2)

   accept information in confidence (so that only an edited version, summary or description is disclosed to the other party) where he considers it appropriate;

3. (3)

   reach a decision on the basis of what has been supplied and take account of the failure by a party to provide information requested; and

4. (4)

   dismiss a complaint if a complainant fails to supply requested information.

1 5The Ombudsman may fix (and extend) time limits for any aspect of the consideration of a complaint by the Financial Ombudsman Service.

1 5If a respondent fails to comply with a time limit, the Ombudsman may:

1. (1)

   proceed with consideration of the complaint; and

2. (2)

   include provision for any material distress or material inconvenience caused by that failure in any award which he decides to make.

1 5If a complainant fails to comply with a time limit, the Ombudsman may:

1. (1)

   proceed with consideration of the complaint; or

2. (2)

   dismiss the complaint.

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

1 7In 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.

1 7When the Ombudsman has determined a complaint:

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 in writing, 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)

   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. (5)

   the Ombudsman will notify the respondent of the outcome .

Where a complaint is determined in favour of the complainant, the Ombudsman's determination may include one or more of the following:17

1. (1)

   a money award against the respondent; or17

   17
2. (2)

   an interest award against the respondent; or17

   17
3. (3)

   a costs award against the respondent; or17

   17
4. (4)

   a direction to the respondent.17

Except in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, a9 money award may be such amount as the Ombudsman considers to be fair compensation for one or more of the following:

1. (1)

   financial loss (including consequential or prospective loss); or

2. (2)

   pain and suffering; or

3. (3)

   damage to reputation; or

4. (4)

   distress or inconvenience;

whether or not a court would award compensation.17

1 7The Ombudsman will maintain a register of each money award.

1 7 Except in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, an9 interest award may provide for the amount payable under the money award to bear interest at a rate and as from a date specified in the award.

1 7A costs award may:

1. (1)

   be such amount as the Ombudsman considers to be fair, to cover some or all of the costs which were reasonably incurred by the complainant in respect of the complaint; and

2. (2)

   include interest on that amount at a rate and as from a date specified in the award.

1 7 Except in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, a9 direction may require the respondent9 to take such steps in relation to the complainant as the Ombudsman considers just and appropriate (whether or not a court could order those steps to be taken).

1 7A respondent must comply promptly with:

1. (1)

   any award or direction made by the Ombudsman; and

2. (2)

   any settlement which it agrees at an earlier stage of the procedures.

In dealing with information received in relation to the consideration of a complaint, the Financial Ombudsman Service will have regard to the parties' rights of privacy.24

2 4This does not prevent the Ombudsman disclosing information:

1. (1)

   to the extent that he is required or authorised to do so by law; or

2. (2)

   to the parties to the complaint; or

3. (3)

   in his determination; or

4. (4)

   at a hearing in connection with the complaint.

So long as he has regard to the parties' rights of privacy, the Ombudsman may disclose information to the FSA or any other body exercising regulatory or statutory functions for the purpose of assisting that body or the Financial Ombudsman Service to discharge its functions.24

2 4The Ombudsman may designate members of the staff of FOS Ltd to exercise any of the powers of the Ombudsman relating to the consideration of a complaint apart from the powers to:

1. (1)

   determine a complaint; or

2. (2)

   authorise the disclosure of information to the FSA or any other body exercising regulatory or statutory functions.