Brendan Burgess
Founder
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This redress programme would not be happening were it not for the fact that the FSO upheld complaints from ptsb on the issue and permanent tsb appealed the decisions to the High Court and Supreme Court thus raising awareness of the issue.
However, despite upholding some complaints, the FSO rejected other complaints on the same issue. Here is an excerpt from one such decision issued by the FSO.
A condition of obtaining the tracker rate was that the fixed rate must be maintained until the date of its expiry. The decision of the Complainant and her husband to terminate the fixed rate of interest in favour of a variable one before the fixed rate was due to expire caused the Bank's commitment as outlined in Condition E to come to an end.
This was permanent tsb's argument in the High Court, which Justice Hogan described as:
"This, undoubtedly, is a sophisticated and clever argument which, for example, had it been advanced in an undergraduate law examination would have attracted high praise from the examiners as an original demonstration of legal craft and skill. But this type of argument should really have no place in the construction of financial documents involving retail customers."
Yet, in some cases, the FSO was persuaded by this argument.
Fortunately, the Central Bank has told ptsb to restore the trackers to these people whose complaints to the FSO had been rejected.
The FSO must review how it handled these cases to see how this happened.
Where the interpretation of a clause is common to a lot of complaints, and the consequences of the Ombudsman's decision are huge, then the FSO needs to devote a lot of resources to arriving at the correct decision.
It may even be appropriate to state a case to the High Court on the issue where Senior Counsel could argue the issue.
Of course, the FSO must adjudicate on each case separately, but the principle should be established first.
The FSO should publish its thinking on commonly occurring complaints
In this case, the FSO should have published its interpretation of the ptsb clause. If there were variations of the clause, which would have resulted in a different decision, those should be published as well.
This would allow the consumer to decide if there is any point in taking a case. It would also allow the financial services provider to decide if there is any point in defending such a case.
The role of the Central Bank needs to be investigated
When the FSO sees a systemic issue, they may draw it to the attention of the Central Bank.
In the past, it was the Central Bank's policy to say "Thank you very much." but give no further feedback to the FSO. Bizarrely, the CB claimed that it could not give any feedback to the FSO because of the Central Bank Act's obligations of secrecy. I don't know if that is still the policy.
So did the FSO refer the ptsb issue to the Central Bank?
If they did, when did they refer the issue?
What did the Central Bank do about it?
Why did the Central Bank do nothing until June 2014.
Many people lost their homes from 2009 to 2015. This could have been prevented if the CBI did their job properly.
However, despite upholding some complaints, the FSO rejected other complaints on the same issue. Here is an excerpt from one such decision issued by the FSO.
A condition of obtaining the tracker rate was that the fixed rate must be maintained until the date of its expiry. The decision of the Complainant and her husband to terminate the fixed rate of interest in favour of a variable one before the fixed rate was due to expire caused the Bank's commitment as outlined in Condition E to come to an end.
This was permanent tsb's argument in the High Court, which Justice Hogan described as:
"This, undoubtedly, is a sophisticated and clever argument which, for example, had it been advanced in an undergraduate law examination would have attracted high praise from the examiners as an original demonstration of legal craft and skill. But this type of argument should really have no place in the construction of financial documents involving retail customers."
Yet, in some cases, the FSO was persuaded by this argument.
Fortunately, the Central Bank has told ptsb to restore the trackers to these people whose complaints to the FSO had been rejected.
The FSO must review how it handled these cases to see how this happened.
Where the interpretation of a clause is common to a lot of complaints, and the consequences of the Ombudsman's decision are huge, then the FSO needs to devote a lot of resources to arriving at the correct decision.
It may even be appropriate to state a case to the High Court on the issue where Senior Counsel could argue the issue.
Of course, the FSO must adjudicate on each case separately, but the principle should be established first.
The FSO should publish its thinking on commonly occurring complaints
In this case, the FSO should have published its interpretation of the ptsb clause. If there were variations of the clause, which would have resulted in a different decision, those should be published as well.
This would allow the consumer to decide if there is any point in taking a case. It would also allow the financial services provider to decide if there is any point in defending such a case.
The role of the Central Bank needs to be investigated
When the FSO sees a systemic issue, they may draw it to the attention of the Central Bank.
In the past, it was the Central Bank's policy to say "Thank you very much." but give no further feedback to the FSO. Bizarrely, the CB claimed that it could not give any feedback to the FSO because of the Central Bank Act's obligations of secrecy. I don't know if that is still the policy.
So did the FSO refer the ptsb issue to the Central Bank?
If they did, when did they refer the issue?
What did the Central Bank do about it?
Why did the Central Bank do nothing until June 2014.
Many people lost their homes from 2009 to 2015. This could have been prevented if the CBI did their job properly.