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Why time might matter as much as your rebuttal when defending a complaint

Before the Financial Ombudsman Service (FOS) can consider the merits of a complaint, they must first consider whether it was referred in time and in accordance with the dispute resolution rules.

So, one of the first questions we always ask is: “Is this complaint one the FOS can consider?”

The following case study shows how, not wishing to rely on the fact that the FOS likely couldn’t consider the complaint due to time limitations, we mounted a robust defence to help an IFA client deny the claim outright.

IFA firm learned direct from the FOS that a client had lodged a complaint about advice given in 2012

Unusually, this complaint bypassed the IFA concerned and went directly to the FOS.

The FOS contacted the IFA firm out of the blue to tell them they’d received a complaint concerning advice to switch from a SIPP to a personal pension.

Due to technical issues, the initial contact from the FOS was not received by the IFA. Consequently, it was almost a year later before the IFA firm became aware of the issue.

With more than 25 years in the business, this was the first complaint the IFA had received. An unblemished record and the knowledge that there had been a substantial delay in responding to the problem increased the pressure significantly.

When the IFA contacted us in June 2022, he was very anxious about how he could respond.

Extensive in its reach, Mr C’s complaint stated that:

  • The firm had failed to provide the best advice, particularly in light of his 25% tax-free lump sum and investment of the remaining funds
  • The firm hadn’t taken his personal details or changing circumstances into account
  • The pension plan failed to meet his requirements and was neither competitive nor affordable.

Mr C sought compensation for financial loss and inconvenience.

Action

We reviewed the client file. Detailed and extensive, it included the:

  • Fact-find and supporting information
  • Suitability report
  • Plan application and supporting information
  • Rest of the file from 2012 (including the first anniversary letter)
  • Documents from the product provider, including illustration KFI and supporting suitability information
  • Files for 10 years – from 2012 through to 2022
  • Hand-delivered letter from the client.

Our extensive arguments addressed eight key areas, with additional emphasis placed on three particular points.  

Commencement of advice 15 October 2012

Mr C claimed that he had “little knowledge and understanding” of how his pension plan was transferred. However, Mr C was fully aware of the process – which was both long and involved – and remained aware of all matters at the time of the transfer.

The fact-find, the reason-why letter (now called the suitability report), and the product literature all clearly disproved the assertion that he was not aware of all matters and aspects of the transfer.

We included copies of these documents in our final response.

Initial advice – 22 November 2012

Mr C claimed that the “product clearly does not meet [his] requirements, is not competitive and is not affordable”.

In defence, we pointed out that the 25% lump sum was withdrawn at inception of the pension switch as Mr C wished to use the funds to purchase a further investment property. This is a fact that the suitability report clearly stated:

“We carried out a full and detailed assessment of your financial circumstances, needs and objectives, and it is clear that the pension […] lump sum withdrawal and the mortgage […] are needed to partly fund your intended house purchase.

“I appreciate that having talked about the various aspects of this matter at length, you already have a clear and thorough understanding on the advice I have provided.

“A key requirement in your case is to draw the maximum possible tax-free lump sum as you need this for your intended house purchase.”

We also highlighted that the client file reflected that the investment decision was arrived at after examining the fact-find and the client’s risk appetite, objectives and capacity for loss.

No duty to provide ongoing advice or tax advice

We argued that the IFA firm was not contracted to deliver ongoing advice to Mr C. In fact, the file clearly records the limitation of the service offered at the start of the advice process.

Mr C was reminded of this again on the first anniversary of the switch. He was also made aware that he could contact the IFA firm or the pension provider.

At no time did he contact the IFA or (as far as we can tell) the provider to request a withdrawal.

Outcome

While our robust investigation and resulting arguments made it clear that the IFA firm could legitimately deny the claim outright, we also questioned the eligibility of the complaint.

Since this complaint related to advice given in 2012, we strongly believed that it could not be considered as it fell outside the time limits set by the FOS.

Due to the strict rules regarding time limits, we emphasised that the FOS no longer had the right to consider the complaint and that the IFA had every right to prevent the complaint being considered.

However, unable to rely on this outcome, we worked to deliver indisputable facts to defend the complaint and protect the IFA from costly damages.

The complaint was withdrawn without further redress.

Key takeaways

Time matters because the FOS cannot consider a complaint if the complainant refers it to them if:

  • More than six years have elapsed since the event being complained about happened
  • If later than six years, the complaint must reach the FOS three years from the date on which the complainant became aware (or ought reasonably to have become aware) that they had cause for complaint.

These rules typically stand, unless the Ombudsman believe that the failure to comply with the time limits was the result of exceptional circumstances.

Even if you believe that a complaint focuses on events too far in the past to be considered by the FOS, it’s always wise to deliver a rigorous and robust defence.

Get in touch

Jencap Partners ensure a pragmatic approach to dispute resolution. From evaluation of the complaint to the “final response”, and beyond, we take care of every aspect of the process and, subject to your PI insurance policy, your legal defence costs may be covered.

Find out more about how we could help you resolve a complaint by talking with one of our experts.

We’d be delighted to answer your questions. Please email mail@jencap.partners, book a short call by completing our online form, or call 029 2000 2325.