Key Post The FSO should bring back the internal appeals system

Brendan Burgess

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The current system is very unsatisfactory from both the complainant's and the provider's point of view.

There is an exchange of correspondence. The Ombudsman asks a few questions. But there is no indication of how the Ombudsman is thinking.

Where the complaint is rejected, it's not practical for most consumers to take an appeal to the High Court. And the best an appellant can hope for is to have the case remitted back to the Ombudsman to look at again.

It is also very costly for the Ombudsman.


It would be far better if some way was found to have an appeal or review within the Ombudsman system.

Perhaps the Ombudsman could issue a provisional decision explaining how he was weighing up the issues and how he was minded to decide. Then either side could make a final submission if they did not agree with it. This would eliminate factual mistakes from the Ombudsman's decisions. It would also allow either side to challenge errors of reasoning before they become final.
 
Here's the relevant part of the Supreme Court decision.

"Discussion and decision
An object of the Act is that complaints be dealt with informally and expeditiously. The Act does not prescribe the procedures to be followed by the Ombudsman. Section 57BF empowers the Council to make regulations that are necessary or convenient to be prescribed for the purpose of enabling the Ombudsman to perform his functions and exercise his powers. It permits Regulations to be made by the Council prescribing procedures to be followed in processing a complaint and no such regulations have been made. Section 57BK provides that the Ombudsman may authorise any Deputy Ombudsman or other Bureau staff member to perform any of the functions, or exercise any of the powers imposed or conferred, on the Ombudsman. There is no objection to the Ombudsman delegating the investigation of a complaint to a Deputy Ombudsman while retaining to himself the adjudication and final decision on the complaint. In doing so he reviews all the material before the Deputy Ombudsman together with additional submissions, if any, furnished by the parties to the complaint. The parties to the complaint had the opportunity of accepting the decision of the Deputy Ombudsman or of seeking a final decision from the Ombudsman.

In the present case the Deputy Ombudsman investigated the complaint and reached a conclusion that the Bonds were unsuitable investments for a Credit Union and that Davy did not alert the Credit Union adequately or at all to the risks inherent in the Bonds. He concluded that the Credit Union would not have purchased the Bonds if their true nature had been fully explained and that Davy had acted in breach of duty to the Credit Union. His findings are embodied in his report. He made a recommendation having regard to findings in the report. It was clear that he made no more than findings and recommendations reviewable by the Ombudsman and which the parties were free to accept or reject and that in the event of rejection the matter would go to the Ombudsman for a final decision and this is what in fact occurred. The decision was that of the Ombudsman.

Notwithstanding that functions of investigation were carried out by a Deputy Ombudsman exercising powers of the Ombudsman the report is not in fact that of the Ombudsman who had no input into the same. On receipt of further submissions in accordance with the published procedures it was open to the Ombudsman to agree or disagree with all or any part of the report, both findings and recommendation. In considering the matter for this purpose the Ombudsman had available to him all that was before the Deputy Ombudsman and in addition the further submissions of both parties. I do not consider the Ombudsman in so proceeding to be hearing an appeal from himself. He took no part in the consideration of the complaint up to the point where the Deputy Ombudsman reported. Further submissions on that report were then obtained from both parties to the complaint and considered by the Ombudsman. I see no lack of fair procedures here. If anything the procedure adopted allowed for an additional layer of fair procedures for the parties to the complaint.

I do note the confusion in terminology which attends the process. The Ombudsman is variously described as conducting an appeal or requiring submissions on the report. It is inaccurate to describe the Ombudsman as performing an appellate function: no decision was made by the Deputy Ombudsman in this case he merely preparing a report and issuing recommendations which the Ombudsman could accept or reject. Likewise the parties to the complaint could accept or reject the report on recommendations. The procedure adopted reflects section 57BB of the Act which establishes the Ombudsman to investigate, mediate and adjudicate complaints: the initial investigation was carried out by the Deputy Ombudsman who made recommendations which were reviewed by the Ombudsman who made the adjudication by way of a final decision. I would allow the Ombudsman’s appeal on this ground."

http://courts.ie/Judgments.nsf/5976...132c69486dc36f96802577210032332b?OpenDocument

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barney

Thanks very much for that.

That is really fascinating and I had not read that before.

I will read the full case in more detail later. Courts.ie doesn't seem to be working properly at the moment.

What actually happened in this case? Did the Deputy Ombudsman issue a provisional report to both sides?

Brendan
 

My knowledge of the case is purely based on what I've read in the two judgments, and it's a while since I read them in full, but from what I can recall the Deputy Ombudsman made a recommendation, which was then reviewed by the Ombudsman for the purposes of final determination.

The Davy case was and remains very important for setting out the limits of the FSO's jurisdiction.
 
Hi barney

I have read the relevant bits in full now, and I have attached them to this post.

Frankly, I am astonished that I was not aware of this. I suppose the overall result of the Appeal was that Davy's won and I must have overlooked that the Ombudsman won this important part.

The procedure I was suggesting, is exactly the procedure which was in operation, and the Supreme Court has upheld it.

The Deputy Ombudsman made a recommendation.
The two sides were given an opportunity to comment on it.
If neither did, the Ombudsman confirmed the decision.

As the Judge said

I see no lack of fair procedures here. If anything the procedure adopted allowed for an additional layer of fair procedures for the parties to the complaint.

I wonder why the Ombudsman discontinued this procedure?
 

Attachments

  • Extracts on whether an appeal can be heard.docx
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Thank you barney G, that is really interesting.

I have correspondence from the FSOs office in 2012 quoting this very judgement as a reason for not reviewing their findings on an unsuccessful complaint I made re a tracker mortgage, and stating that the "finding... is not renewable except on appeal to the High Court".
(I had asked the FSO to review his decision as there were some factual errors in the rationale given in the final decision. I was not in a position to go to the High Court.)

This letter from the FSO also refers to a copy on the website of this judgement - ...[broken link removed]
 
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Katona

You should make a submission to the Department of Finance about how the system has let you down.

I would be very interested in seeing the letter you got from the Ombudsman. If you were willing to send it to me my email address is brendan at this website.

Brendan
 
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