Question to the HM Treasury:

To ask His Majesty's Government what assessment they have made of the Financial Ombudsman Service's ability to set precedents that create new rules and thereby bypass the Financial Conduct Authority and established regulatory processes.

On Monday 16 March, the Government published a response to its consultation on reforming the Financial Ombudsman Service (FOS), confirming that the government will legislate to stop the FOS acting as a quasi-regulator and provide greater regulatory coherence with the Financial Conduct Authority (FCA).

The FOS was not intended to create binding precedents or new rules through its determinations, which are made based on all the individual circumstances of the case. The Government’s review concluded that there was not always coherence between the regulatory approach set by the FCA and the approach used by the FOS in determining individual complaints and, in a small but significant minority of cases, this had led to the FOS acting as a quasi-regulator. The Government’s reforms will ensure that FOS determinations are fully aligned with the regulatory standards set by the FCA.

The Government will bring forward legislation to deliver the reforms when parliamentary time allows. Alongside the Government’s response, the FCA and the FOS published a paper seeking views on a number of changes they can make in advance of legislation, including updates to the fair and reasonable test and initial implementation of the new referral mechanism.

The reforms will improve cooperation between the FOS and the FCA, including through introducing a referral mechanism, which will require the FOS to seek a view from the FCA where the FOS considers there may be ambiguity in what FCA rules require, or where it considers an issue raised may have wider implications across the financial services industry, which the FCA will be required to respond to. The FOS and the FCA have implemented an initial version of this mechanism through their updated Memorandum of Understanding.

The reforms will also require the FCA and the FOS to publish regular thematic reports, which will explain the FOS’s approach to types of complaints that it receives. This will provide greater certainty on the approach used by the FOS to resolve disputes, and which demonstrates how that approach is aligned with the regulatory standards set by the FCA. In their joint paper, the FOS and the FCA set out that they will work with the Government to consider how greater clarity could be provided ahead of any legislative change.