Does the FSO's basic remit need to be changed?

Brendan Burgess

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The legislation requires the FSO to act ‘in an informal manner and according to equity, good
conscience and the substantial merits of the complaint without regard to technicality and legal form’.

FLAC has commented on this:
"While perhaps well meaning, we maintain that this mandate is confusing and even a bit contradictory. For example, how can the substantial merits of the complaint properly be considered without having regard to technicality and legal form, when as is often the case, the complaint concerns the provider’s alleged breach of statutory rules? A remit that required the FSO to simply act according to equity, good conscience and the substantial merits of the complaint might be preferable."

The by Justice Hogan in the Millar vs. Danske case said:

...the Ombudsman was in error in failing to examine whether it would be broadly fair and reasonable for Danske to apply such a construction measured by reference to his enhanced statutory powers

15. The Ombudsman is, however,also entitled by virtue of the provisions of s. 57BK(4) to go further in order have regard to the substantive merits of the matter, even if this involves a departure from the strict rigours of contract law As I pointed out in Koczan v. Financial Services Ombudsman [2010] IEHC 407, the effect of s. 57BK(4)is, accordingly,that:
"The Ombudsman's task, therefore, runs well beyond that of the resolution of contract disputes in the manner traditionally performed by the courts. It [is clear from the terms of s. 57BK(4) that the Ombudsman must, utilising his or her specialist skill and expertise, resolve such complaints according to wider conceptions of ex aequo et bono which go beyond the traditional limitations of the law of contract."


From Wikipedia: Ex aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a phrase derived from Latin that is used as a legal term of art. In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand.
 
I am not sure that the legislation needs to be changed. The Ombudsman is entitled to make a ruling which is broadly fair and reasonable.

The fact that the Ombudsman, tends to be overlegalistic, is not the fault of the legislation.
 
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