The Ombudsman’s Corner: February 2023

In my last column I set out details of the changes we are making to our Scheme Rules on 1st April 2023 with regards to the circumstances in which we can dismiss a complaint. This time, I am going to explain how we are changing our rules in relation to what happens at the end of our investigation into a complaint and the complainant’s right to request a formal final decision on their case.

We determine complaints accepted for investigation through a three stage process  – an initial assessment stage; where we assess whether the complaint falls within our jurisdiction and whether it is a matter which is appropriate to investigate, then the investigation stage; where we investigate the complaints as agreed and make preliminary findings on those complaints, and then finally the decision stage; where the ombudsman will issue a formal final decision on the complaint.

In the investigation stage, the case is allocated to an investigator who agrees the scope of the complaints, requests evidence and comments in relation to those complaints. Part of the investigator’s role is to try to negotiate settlement between the parties, but if this is not possible they will make findings on the complaints agreed, which they then communicate to the parties.

If either of the parties disagree with those findings, which are initially communicated verbally and then set out in an investigator’s Case Decision which is provided to the parties, they can require the matter to go before an Ombudsman for a formal final decision at decision stage. The Ombudsman will consider the evidence before them, the Case Decision and the comments provided in response to that document, before issuing a decision which, if accepted by the complainant, is then binding on the service provider.

Currently, around 37% of all investigations go to an Ombudsman for decision and in over 80% of those cases the Ombudsman’s decision mirrors that of the investigator’s Case Decision. What we are implementing in the new Scheme Rules is the ability to manage when customers can request an ombudsman’s decision rather than it being an automatic right, whilst ensuring that the right is retained when needed.

Our current rules state that, if there is no response from the complainant to the investigator’s Case Decision, we have discretion to treat the matter as being resolved by the Case Decision and take no further action on the matter (set out in our Scheme Rule 5.20). We have always used this rule to close cases in these circumstances, and what we are seeking to do is to expand this to include cases where the response does not provide us with either new evidence in relation to the complaint or comments challenging the facts or evidence on which the Case Decision relies.

We often receive a response to a Case Decision, in which the complainant simply says “I reject your decision and want the ombudsman to look at it” with no explanation as to why they disagree. Going forward, we want complainant to provide reasons as to why they disagree, and if they cannot or will not do so, we may exercise discretion to take no further action. The intention is that this new rule enables us to reduce investigation time, for the benefit of all parties, and reduce our cost per case.

Although it could be argued that this new rule could be seen as preventing access to justice for our customers, we are confident that this will not be the case. Although we have discretion to exercise discretion to close cases where we do not receive material comments in response to the Case Decision, we do not have to do so and, where there are no new evidence or comments in response to the Case Decision, it still may be fair and reasonable for us to issue a formal determination of the case.

We will always consider all the circumstances of the matter before making the decision to exercise discretion to close a case for lack of material response to the Case Decision.

It is worth also saying that in the event that we close a case due to lack of material response to a Case Decision, if that report does recommend that the service provider offers redress for poor service, we would expect them to do so, and we do reserve the right if this is not done to re-open the case and issue a formal final decision which is binding on the service provider if accepted.

As with the other Scheme Rule changes I have discussed in the last three columns, this rule will be applied to all complaints referred to us on or after 1st April 2023. We are not applying this rule change to complaints which are referred to us before that date.

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