In its latest Ombudsman newsletter the FOS said taking a “fair and reasonable approach from the outset” could help advisers avoid some problems in the first place.
The FOS’ comment came in respose to an adviser’s query of its “fair and reasonable” principle in deciding cases.
The adviser said: “It seems that I could do everything my regulator requires me to, but the ombudsman could still say I haven’t been ‘fair’ and uphold a complaint against me. How am I supposed to know what to do?”
The ombudsman replied that it did not “ignore the law or tear up the regulator’s rule book” but sometimes sticking strictly to the law or rules leads to an unfair outcome.
It said: “We have to take account of the law, rules and good industry practice when we make decisions. So most of the time, what we say is in line with how a court would look at a case – or what the regulator would say.
“[But] the law can sometimes be out of date or out of kilter – and can end up being too harsh on consumers.
“Where we think there might be issues like these to consider, we follow our usual approach – which is to look carefully at the individual facts of the complaint and then decide what a fair and reasonable outcome would be.”
The Financial Conduct Authority (FCA) fuelled the box-tick debate last week when it ‘declared dead’ the practice of ticking compliance boxes to evaluate business conduct.
Latest FOS complaints figures, published in early March, showed the number of complaints upheld against networks and national advice firms had dropped in the past six months.
The FOS came under fire last month for allegedly splitting consumer complaints to circumvent its £150,000 maximum awards limit.
The news came after a landmark ruling in the Appeals Court which said FOS awards, once accepted by the consumer, were final.
