Status of Ombudsman Decisions
More than 90% of the disputes that the Financial Ombudsman Service resolves are settled at earlier informal stages, through processes such as mediation and conciliation. An ombudsman's decision is the final stage of the Financial Ombudsman Service's process. If the consumer with the complaint accepts a final decision, it is binding on both parties and enforceable in court.
But if the consumer chooses not to accept an ombudsman's decision, their legal rights remain unaffected and they can take the matter to court instead - subject to any requirements set by the courts. However, independent commentators generally recommend that consumers should use the ombudsman service rather than the courts as the outcome of court cases can be unexpected, disappointing and costly.
However, there have been judicial reviews against the ombudsman, brought by financial services companies who have to accept the ombudsman's decisions which are binding in law. For example, in January 2011 the British Bankers Association - on behalf of a number of high-street banks - brought a judicial review against the ombudsman and the FSA on the approach to PPI complaints handling. The High Court rejected the banks' challenge and endorsed the approach taken by the ombudsman and the FSA. The difficulty in winning a judicial review is that the Financial Services and Markets Act 2000 which led to the establishment of the Financial Ombudsman Service requires the ombudsman to make decisions "by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case".
In a judicial review of an ombudsman's decision brought by an independent financial adviser (IFA), the judge further clarified that the ombudsman is "free to make an award different from that which a court applying the law would make". This means that a litigant has to surmount the very high hurdle of proving that the entirety of the ombudsman's decision was so unfair that no right minded person would have made a similar decision.
Read more about this topic: Financial Ombudsman Service
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