RESPONSE TO CP74: FUNDING THE FINANCIAL OMBUDSMAN SERVICE JOINTLY ISSUED BY FOS/FSA IN NOVEMBER 2000
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1 RESPONSE TO CP74: FUNDING THE FINANCIAL OMBUDSMAN SERVICE JOINTLY ISSUED BY FOS/FSA IN NOVEMBER INTRODUCTION 1.1 This paper provides the Association s views on the Joint Consultation paper Funding the Financial Ombudsman Service issued by the Financial Ombudsman Service and the Financial Services Authority in November The Association represents over 400 insurance companies that between them account for over 96% of the business of UK insurance companies. The Association represents insurance companies to the Government and to regulatory and other agencies and provides a wide range of services to its members. 1.3 This response builds upon the Association s comments regarding funding made in response to CP33 and CP49. The Association is also represented on the Industry Funding Group (IFG) and looks forward to commenting on further aspects of the funding proposals, in particular proposals to give greater weighting to case fees rather than the general levy in the future and on the possible future refinement of the approach to case fees. 1.4 The Association has commented separately on the proposed budget for 2001/02. 2 DETAILED COMMENTS Q1 Do respondents agree with the proposed industry block set out in Annex B and do they have any views on whether it is appropriate to create a separate mortgage lending block? In the interests of consistency, we agree that it would seem prudent to adopt the FSA s proposed fee-blocks as a starting point for the FOS general levy mechanism. We do not have any views on whether it is appropriate to create a separate mortgage lending block. Q2 Do respondents agree with the tariff-bases proposed in the table at 3.19? Yes.
2 Q3 In particular, do they have a view on:- (i) Whether the tariff-base for deposit-takers should be weighted in some way to take account of different types of account (paragraph 3.21). We agree that it is not necessary to weight the number of accounts to reflect the fact that different types of account generate different volumes of complaints. The case fees element of funding introduces the user-pays principle. (ii) Whether the appropriate tariff-base for advisers and brokers should be the number of relevant approved persons or relevant commission/fee income (paragraphs ). Since the approved persons measure would not be suitable for unauthorised firms or unregulated activities which may be covered by the Voluntary Jurisdiction (VJ) (eg mortgage or general insurance intermediaries), we believe that the appropriate tariff-base should be fee income. Q4 Do respondents agree that, for FOS general levy purposes, relevant business should be restricted to business done with private individuals only? We agree that a firm s relevant business for general levy purposes should be restricted to the business which it does with private individuals only. As we stated in response to CP49, whilst the gross premium income unit of measure is entirely appropriate for personal lines, it is not clear how insurers could determine what proportion of their commercial premium income would be relevant premium income, nor whether they would use similar techniques to determine this figure. It is accordingly administratively much simpler to disregard commercial premium income for the purposes of the general levy. Q5 Do respondents agree that small business complaints should be funded separately by a special case fee (as described at paragraphs )? We agree that small business complaints handled by the FOS should be funded separately via a special case fee, to be set at a level which would broadly reflect the full unit cost of handling a case. It would not be equitable if commercial premium income were disregarded for the purposes of the general levy since this would have the undesirable effect of ultimately requiring private individuals to fund a complaint service for the benefit of small businesses. However, we need to be mindful that the handling of complaints relating to certain classes of commercial insurance (eg surety bond, defective title, restrictive covenant and liable insurance) will require specialist knowledge.
3 Accordingly, it is imperative that case handlers possess the requisite knowledge to address such complaints else there is a danger that the special case fee in such instances could be disproportionately high. Furthermore, we seek clarification as to whether the special case fee will be:- (i) (ii) (iii) unique to that particular small business complaint?; or an average of the costs incurred in relation to commercial complaints in a particular business division?; or an average of the costs incurred for all commercial complaints in all three business divisions? Q6 Do respondents agree that a straight line approach should be adopted for the FOS industry-blocks? Yes. We agree that a straight line approach should be adopted for the FOS industry-blocks. Q7 Do respondents believe that the logarithmic approach described in 3.31 should be applied to the fund managers industry-block, or any of the proposed industry-blocks? In light of the trend towards consolidation and mergers in the financial services sector, we do not believe that it would be fair to lighten the levy at the upper end of the scale. If, however, a logarithmic scale was introduced, this should be across the board and not applied solely to the fund managers industry-block. Q8 Do respondents agree with the proposal for a minimum levy? Yes. We support this proposal. Q9 Do respondents agree with the proposal that those firms which qualify for the minimum levy should be subject to case fees? We are concerned that the removal of the obligation to pay a case fee would lessen any incentive for a small company qualifying for the minimum levy to settle a complaint in-house. Accordingly, we suggest that those firms which qualify for the minimum levy should be entitled to a given number of free cases per year, for example, up to the amount of the minimum levy. This would ensure that a company generating little business but a high level of complaints would then meet its reasonable share of costs. We agree that the concept of a minimum levy is more appropriate than special pooling arrangements to address the concerns of credit unions, small friendly societies and cash plan health providers. Moreover, fears that the case fee might outweigh the value of the claim are common to all
4 and it would be unequitable to give preferential treatment to a particular group of regulated firms. Q10 Do respondents agree that there should be no maximum levy? Yes. We agree that there should be no maximum levy. Q11 Do respondents have any views on the issues relating to the possible future refinement of the approach to case fees outlined in paragraph 3.38? We agree that a 50:50 split between the general levy and case fees appears to be a sensible starting point and that a move to a higher user pays element may be appropriate in the light of experience of the scheme. However, it should be borne in mind that if the case fee becomes disproportionately high, there is a danger that it could be used as a bargaining lever by consumers. On balance, we agree that it is not practicable to charge case fees on the basis of whether or not a complaint is upheld as valid. However, given that FOS has chosen not to exercise the power contained in the Financial Services and Markets Act to award cost orders against vexatious complainants, it is imperative that the Ombudsman uses his powers to dismiss complaints that are deemed to be frivolous or vexatious. As the case fee will initially be uniform across all business sectors, this means that there will inevitably be an element of cross-subsidy. We consider that there would be merit in taking into account possible differentials between sectors in the longer-term so as to iron out any such cross-subsidies. Since the tiering of case fees would provide an incentive for the earlier closure of cases, we believe that this is another proposal which should be investigated by FOS. Q12 Do respondents agree with the proposal for the FOS to charge special case fees in the circumstances outlined above? Yes (see Q8).
5 Q13 Do respondents have any comments on the proposed definition of chargeable case? The scheme rules have been amended to require that complaints must involve an allegation that the complainant has offered, or may suffer financial loss, material inconvenience or material distress and must relate to an activity which, in relation to that firm, comes under the jurisdiction of the FOS. This definition is narrower than the previous definition of complaint. As such, we agree with the proposed definition of a chargeable case. Q14 Do respondents agree with this proposal for recovering the establishment costs of the new scheme? We agree that establishment costs should be recovered from all authorised firms which are subject to the Compulsory Jurisdiction and from firms participating in the Voluntary Jurisdiction. However, in respect of the VJ, it is imperative that the levy is not set at a level which would deter small firms and, in particular, intermediaries, from joining the scheme. Q15 Do respondents agree with the proposals for funding 2001/2002 as set out in paragraphs ? Yes. We agree that the total budget for 2001/2002 should be funded by existing schemes under their current powers and in accordance with their current funding mechanisms. We further agree that the costs of dealing with complaints relating to firms which are not already members of one of the schemes during the remainder of the year in which N2 falls should be recovered by a special case fee. We support the concerns raised by the IOB with the funding process timetable (as set out in Annex F to CP74). Since there is likely to be a significant time-lag between the preparation of a scheme member s internal budget and the approval of the FOS budget by the FSA, we agree with the IOB that if any substantial increase in the levy is anticipated, an informal early warning should be given in the preceding year. Q16 Do respondents have any comments on any of the administrative arrangements/requirements proposed in this chapter (ie Chapter 4? We share the IOB s reservations regarding data collection arrangements. We have previously expressed our concerns regarding the sharing of information between FSA and FOS. FOS would not wish to prejudice the good communication links established between itself and regulated firms. This might arise if firms do not feel confident about the circumstances under which it would be appropriate for the FOS to share information with the FSA. Similarly, authorised firms would be concerned if, as is proposed, they were required to send both sets of data to the FSA who would then pass on the relevant data to the FOS. We note that the FSA will take a final view on this in consultation with the FOS on the basis of what is most cost-effective. We do not believe that costs should be the sole arbiter
6 regarding this decision. There should be as much independence and distinction between the two organisations as possible and we believe authorised firms should be allowed to submit separate returns to FSA and FOS. Ref J/608/ February 2001 N012202A.LF*MALL*MINS
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