CHAPTER TWO – THE COMPLAINT
Central to the role of the FOS is the resolution of complaints. The concept of a ‘complaint’ is one that appears throughout DISP, so it makes sense to consider this first before going on to look at the FOS’s jurisdiction (as to which, see the following chapters).
For most of DISP, ‘complaints’ are defined in the Glossary of the FCA Handbook as ‘any oral or written expression of dissatisfaction’ about financial services, which:
- alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience; and
- relates to an activity of that respondent, or of any other respondent with whom that respondent has some connection in marketing or providing financial services or products, which comes under the jurisdiction of the FOS.
This is intended to be a very broad definition,[1] and contains three elements: first, the communication of dissatisfaction to the firm; second, that the dissatisfaction be about the provision of financial services or a redress determination within the FOS’s jurisdiction; and, third, a suggestion that the complainant has suffered or may suffer a loss.[2]
There needs to be some active expression of dissatisfaction by the customer. A customer’s acceptance of an invitation to participate in a firm’s review of interest rate hedging products (which the firm had agreed with the FCA to conduct) does not itself amount to a complaint.[3] Nor, it seems, does a bare statement by a customer that they would have been better off if they had not entered into a relevant financial product.[4]
The FOS website explains that a complaint must first be made to ‘the financial business you’re unhappy with’ to give them a ‘chance to sort things out before bringing your complaint to us… If you’re not happy with the outcome of your complaint to the business, you can ask us to investigate what’s happened.’[5] Complaints can be pursued by phone,[6] online, or by the completion of a complaint form.
It is only after a customer has complained to the firm that they can complain to the FOS. As explained in Chapter 6, the firm has 8 weeks to respond to the complaint, by which time it ought to have provided the customer with information about complaining to the FOS.
If and when a complaint is made to the FOS, it will normally be made through the FOS’s website, which will first ask the complainant to answer questions in an automated ‘complaint checker’, to check that the FOS has jurisdiction to consider the complaint. It then allows the complainant to enter details of their complaint in an online complaint form, or to call a telephone number.
Accordingly, the complaint can be in writing or by telephone. Even with written complaints, the FOS does not expect statements of case like those used in court proceedings. Complaints can be very informal, and the FOS is not limited to the complaint as formulated by the complainant. Instead, it may reach a decision on a basis other than that put forward by the complainant.[7] Indeed, it is part of the FOS’s job to determine the nature of the complaint.[8]
The courts have considered it reasonable for the FOS to continue to assess a complaint, even when made in a ‘somewhat tangled way’. In R (Calland) v FOS [2013] EWHC 1327 (Admin), the court accepted that the FOS was right to consider complaints, even though the ‘expression of dissatisfaction’ was made to the FCA (then FSA), which then took an active role in referring complaints to the FOS. The FOS contacted the individuals and the individuals asked that the complaint be dealt with. It was suggested by the firm that the FSA or the FOS had solicited the complaints.[9] The court had no doubt that the FOS was entitled to consider it.[10]
Likewise, R (iDealing.com) v FOS [2024] EWHC 847 (Admin) arose out of a complaint about one firm, where the FOS suggested that a complaint should be made against a further firm. The court confirmed that this was acceptable, in line with DISP 3.5.2G.[11]
It is not necessary for a complainant to pursue the complaint themselves if they authorise somebody else to do so.[12]
MORE INFORMATION / PURCHASE THE BOOK ONLINE
[1] R (British Bankers Association) v FSA [2011] EWHC 99 (Admin) at [38].
[2] Davis v Lloyds Bank [2021] EWCA Civ 557 at [44]. Notably, complaints about the conduct of a review process undertaken by a firm in agreement with the FCA does not fall within the FOS’s jurisdiction: see Chapter 3.
[3] Davis v Lloyds Bank [2021] EWCA Civ 557 at [25], citing Day v Barclays Bank [2018] EWHC 393 (QB). The latter case held, at [28], that submissions within a review could not amount to a complaint, though also noted at [29] the claimant’s position in that case that the review was not itself a complaint.
[4] Davis v Lloyds Bank [2021] EWCA Civ 557 at [29] and [50].
[5] http://www.financial-ombudsman.org.uk/consumer/complaints.htm.
[6] As occurred in R (Bankole) v FOS [2012] EWHC 3555 (Admin). See [6].
[7] R (Green) v FOS [2003] EWHC 338 (Admin) at [41].
[8] R (Full Circle Asset Management Ltd) v FOS [2017] EWHC 323 (Admin) at [53].
[9] See [21] and [55].
[10] At [57] and [120].
[11] See [34]-[36].
[12] DISP 2.7.2R.