Question 1: Do you agree that, where conduct complained of is in scope of FCA rules, compliance with those rules will mean that the FOS is required to find a firm has acted fairly and reasonably?
No or rather the question makes almost no sense.
Under the FCA Principles 1 and 2, a failure to use integrity, due skill, care and diligence is always a breach of the FCA rules. So, the concept behind the question and thus the proposal is inherently flawed.
Question 2: Will the aligning of the Fair and Reasonable test with FCA rules still allow the FOS to continue to play its relatively quick and simple role resolving complaints between consumers and businesses?
No. It will just result in pointless wasting of time between the trade bodies and the FOS. Historically, the FOS and FCA almost never disagree on the meaning of the rules. This is just a pointless piece of bureaucracy.
Question 3: Do you agree with the proposed approach for dealing with law which may be relevant to a complaint before the FOS?
No. The powers described already exist. They have been used on two occasions by the industry and resulted in a spectacular increase in industry liabilities.
Question 4: Do you consider that there are some cases that are not appropriate for the FOS to determine, bearing in mind its purpose as a simple and quick dispute resolution service? How should such cases be dealt with?
No. If you take that view, you compromise the consumer protection objective of FOS. Identifying such a case away from motor insurance fraud is almost impossible.
Question 5: Do you agree that there should be a mechanism for the FOS to seek a view from the FCA when it is making an interpretation of what is required by the FCA’s rules?
No. The mechanism already exists. Enshrining it in law would be pointless unless you are going to bind the FOS to the FCA’s potentially flawed ruling.
Question 6: Do you agree that parties to a complaint should have the ability to request that the FOS seeks a view from the FCA on interpretation of FCA rules where the FCA has not previously given a view?
Pointless because that option also exists.
Question 7: Do you agree that parties to a complaint should have the ability to request that the FCA considers whether the issues raised by a case have wider implications for consumers and firms?
This exists already. The problem historically has been that the FSA/FCA and FOS have so distrusted each other’s operational capability that the system breaks down as it did spectacularly over PPI. There, FOS was screaming at the FCA to order a proper business review and the FSA sat on it.
Question 8: As part of implementing the proposed referral mechanism, do you think there are any issues which should be considered in order to ensure the mechanism works in the interests of all parties to a complaint?
None
Question 9: Do you agree that the Chief Ombudsman should have overall authority for determinations made by FOS ombudsmen, and through that authority, should be responsible for ensuring consistent FOS determinations?
It’s harmless but actually largely exists already. You do have to appoint people with technical competence if you are going to enshrine this responsibility in law. All but one of the post-Walter-Merricks appointments would have failed that.
Question 10: What approach to transparency arrangements would provide the most accessible way for consumers and firms to understand what outcomes to expect for particular types of cases that the FOS deals with?
FOS already produces its bulletins and technical papers. All they need to be is expanded back to their original detail levels.
Question 11: Do you think the package of reforms outlined above, taken together, will be sufficient to address the problems identified by the review and ensure the FOS fulfils its original purpose?
The review did not identify problems. It parrotted the views of UK Finance whose members will be hammered by the FOS’ application of the law in the discretionary finance cases. Most of the problems identified do not exist. The real problems concern the technical competence and training of Ombudsmen and their staff.
Question 12: Taking into account the other reforms proposed in this consultation, do you think that the FOS should be made a subsidiary of the FCA? If so, what are your views on the appropriate institutional arrangements?
No. This was disastrous when PIA owned PIAOB and imposed its defective software and other admin systems.
Question 13: Do you agree that 10 years is an appropriate absolute time limit for complainants to bring a complaint to the FOS?
15 is the law. I would stick with that. For product providers, you should not shut down complaints about a product which still exists and for which they should have records and the resources. Your proposal invites banks to throw away their embarrassing records (see the Clydesdale Final Notice on PPI).
Question 14: Do you agree that the FCA should have the ability to make limited exceptions to this time limit?
Yes. Hardship and as the law provides intentional wrongdoing and concealment of the behaviour concerned.
Question 15: Do you agree that the FCA should have more flexibility, when investigating a potential MRE, to take steps that are designed to avoid disruption and uncertainty for consumers and firms? In addition to the proposals made above, do you think there are other tools for the FCA which should be considered?
It already has the required flexibility.
Question 16: Do you agree that there should be a simpler legal test for the FCA to satisfy in deciding that a section 404 redress scheme is needed to respond quickly and effectively to an MRE?
Yes. This is the one really good suggestion.
Question 17: Do you agree that the FCA should be able to direct the FOS to handle complaints consistently with relevant redress schemes, or to direct the FOS to pass related complaints back to firms, to be dealt with by those redress schemes?
It effectively already has that power under section 404. Yes.