Response to FOS's consultation on publishing decisions

Response to FOS consultation
Transparency and the Financial Ombudsman Service
publishing ombudsman decisions
next steps

from Mr Paul Grenet

This is my final response to the consultation
The actual FOS consultation document can be found here
The main issue seems to me to be the intention to publish only the 11% of decisions which were handled by the ombudsmen. The remaining 89% of FOS work handled by adjudicators would remain secret as now. This suggestion can only lead to the false impression that the ombudsmen's work is representative of the FOS as a whole, when it clearly cannot be.

I have restricted my comments to the specific questions asked by the consultation document

Question 1
Do you agree with our overall approach? Are there other considerations we should bear in mind, in approaching the publication of our ombudsmen's final decisions?

Yes, I think the overall approach is broadly sound, apart from the desire to avoid publishing adjudicators' views. I do have several concerns, addressed in the answers below.

Question 2
Do you agree that we should not publish the views of adjudicators - instead limiting the publication of decisions to those made by our ombudsmen?

Adjudicators' views should be published if FOS wishes to be open and transparent about the work it does. In 2010-11, 89% of FOS cases were resolved by adjudicators, so failing to publish these cases will result in a picture which, by definition, cannot reflect the actual work of the FOS.

Speaking to the FSA recently the FOS Chief Executive, Natalie Ceeney, said:

"Making these decisions publicly available is something we very much welcome. It will help in "busting" many of the myths about decisions we have made. It will also help to give clarity to firms on what complaints-handling standards are, as we see them."

However, far from meeting Natalie's vision of "busting myths" and "giving clarity on complaints-handling standards" the real day to day standards will be obscured if 89% of the work is left out, and questions will rightly be asked about why FOS has chosen this policy.

The consultation makes much of the difference between an ombudsman's "decision" and an adjudicator's "view" but this difference is of little concern to consumers. The result is still a decision made by FOS on the basis of what is "fair and reasonable.

The consultation suggests that adjudicators' views are arrived at after friendly and confidential negotiations where, in the end, both sides agree on a friendly compromise and its all settled. That may sometimes be the case but there are also situations where this certainly does not happen. And I am sure there are thousands of cases where the consumer wearily accepts an adjudicator's view, just to get the money paid out after years of arguments and delays by both firms and the FOS, rather than wait another six months while an ombudsman looks at the case.
The consultation's reasons for not publishing adjudicators' views do not stand up in my opinion.

I cannot see how publishing will discourage consumers from seeking FOS help, quite the reverse in fact.
The suggestion that adjudicators' work would no longer be confidential and thus would not achieve core organisational objectives is simply wrong, in my view. The work will still be confidential whilst the actual case progresses and cases will be de-identified when published after the case is settled. Where is the breach in confidentiality ?
How can it be "unhelpful" to negotiations to publish details once the case is closed if FOS wishes to be transparent ?
Furthermore, if they are valid, the same arguments should be applied to ombudsmen's cases which have all been through the adjudication process and where the decision is frequently not changed by the ombudsman. Why does FOS not seek to protect confidentiality for these ? If it is "unhelpful" to publish an adjudicator's view, why is it not equally unhelpful to publish an ombudsman's decision where, as is usual, he confirms the adjudicator's view ?

The number of cases passed to ombudsmen continues to rise. The reasons may include dissatisfaction with the adjudication process. The high turnover in adjudicators is a fact, and was recently discussed by the board. This means the vast majority of FOS work is actually being done by the most junior staff, many of whom are also the most inexperienced, some of them outside contractors, or on short term contracts, on low pay for the financial world, and aware that they need to meet productivity targets to earn their incentive bonus payments.

Omitting the adjudicators' views will bias the results in favour of a small group of highly paid, experienced, elite ombudsmen who only handle 11% of FOS cases, giving the false impression that their decisions and standards are typical of the service as a whole.

The only valid reason for not publishing the adjudicators' views is cost, time, effort and the huge task of allowing access to 200,000 decisions a year, most of which will never be looked at by anyone. But that is not the point, the point is FOS's commitment to openness and transparency.

Question 3
Do you agree that our published reports on cases should not normally be specially commissioned summaries, but the actual determination made by the ombudsman (subject to the appropriate safeguards)?

I agree that the full decisions/views should be published if possible. It is my view that the adjudicators' views should be also published which will add to the volume and cost, but that alone should not be a reason not to publish them. To reduce overall volume, with adjudicators it might be possible to publish the full document if it is brief, and a summary document if the full one was longer than (say) two pages. The summaries could be done quite quickly by the adjudicators who are familiar with the case issues (rather than a worker who has to first read and understand the case before summarising it…this could lead to all sorts of mistakes). It might even encourage the adjudicators to keep their views to two pages ! The ombudsmen's decisions should always be in full as they will usually be more important cases.

Summaries run the risk that the person writing the summary will do so in a way which hides or disguises important points, or possibly the summariser may not understand the important issues.

Question 4
Overall do you think our proposed approach strikes the right balances between transparency, protecting genuinely confidential information and the costs of implementation?

As mentioned above, transparency depends on adjudicators' view being published. It also needs to be said that around 800,000 enquires to FOS are not handled by ombudsmen or adjudicators at all, but by customer contact staff. If FOS wishes to be open and transparent then some sort of summary of the questions asked and the advice given to these people is also required.

Question 5
Do you think the steps we propose are sufficient to protect consumer identities and personal information - or are there other specific steps we should take?

Yes

Question 6
Do you agree that we should not seek to protect the identity of financial businesses? If you disagree, what other steps would you want us to take?

Yes

Question 7
Do you agree with our planned approach to the identities of third parties - including other financial businesses, professionals, other representatives and third-party businesses?

Yes, but the name of the ombudsman or adjudicator should also be published. If the name of the firm is to be published however small, or the name of an individual financial adviser, I see no reason why the name of the person making the decision should not also be public information. Judges' and magistrates' names are not kept secret, what is so special about ombudsmen and adjudicators ?

Question 8
Do you agree that we should reserve the right not to publish certain decisions - or to exempt information in other exceptional circumstances?

Yes, but in these cases a summary document should be prepared which illustrates the main issues in general terms, and FOS thinking behind the decision/view. If this is not done important issues will be completely hidden from public knowledge.

Question 9
Are there other considerations about safeguarding personal information that are not covered in this paper and that we need to take into account?

I think you have it about right

Question 10
What impacts do you believe publication of decisions as we propose will have - on consumers, financial businesses and on our service?

I cannot see that de-identified publication will discourage anyone from using the service, quite the reverse. Financial businesses already know much more about the FOS than consumers, there will be little to surprise them, but they will be able to compare their experience with that of their competitors. The ombudsmen and adjudicators will have to get used to public comment about their work, they have been shielded from criticism in the past, they may not like the new openness. There will be more press comment but I cannot see any harm in greater transparency.

Question 11
Do you agree with our approach to the timing of publication? If not, when should decisions be published and why?

No, I think publication should be when the consumer has decided whether to accept the decision or not and this outcome should be published too. Then the public would be able to see how consumers react to the decisions. If publication is before this, the consumer may see his case being discussed in the media and press before he has made up his mind whether to accept it or not. This may or may not be helpful, but I think it best avoided.

Question 12
Do you agree with our approach to the form of publication?

Yes, in general. I suggest that the decisions/views should be available as documents on a database which can be sorted and searched so that interested parties can filter the results to show all decisions which meet their search criteria.

I suggest a two or three line description/summary of each case is also required, mentioning which side won . Without such a summary it would be hard work to get much information out of the system by browsing through the lists.

If any decisions or views are published as a summary for whatever reason, the ability should be there to call up the full document if it is not exempted as in Q8.

Question 13
Do you have any comments on when we should start publication of decisions - and what are your views on past decisions?

Publishing past decisions will hugely increase the database. The vast majority of these decisions will not be looked at very often if at all. Perhaps a list of recent past decisions, with three line summary. could be published with the ability of interested parties to view them by making a request.

Question 14
Do you agree that we should adopt the same approach across all of our jurisdictions - and specifically do you agree we should cover our voluntary jurisdiction in the same way as our compulsory (FSA/FCA) jurisdiction and our consumer-credit jurisdiction?

Yes. I do not believe the man in the street understands the subtlety of whether decisions are reached by ombudsmen or adjudicators, nor whether the decision has been reached under any particular jurisdiction, he just wants his dispute resolved.

I also suggest that decisions reached by the Independent Assessor should be published. She deals with cases where FOS staff are accused of making mistakes in the FOS service standards. Such mistakes can influence decisions because the correct procedures or principles or guidelines have not been followed. I see no reason why we should not know about the sort of matters that concern consumers to such a degree that they persist in the complaints procedure up to Independent Assessor level. If FOS wishes to be open and transparent the IA's decisions need to be published.

Yours sincerely

Paul Grenet

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