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Consumer duty 'will spark test cases at Fos'

The Fos told FTAdviser it would work closely with the regulator to ensure there is consistency in how firms' implementation of the rules is assessed.

A spokesperson said: “The Financial Ombudsman Service welcomes the publication of the new consumer duty to raise standards, so that consumers are better protected and can make good financial decisions.

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"We will continue to work closely with the FCA to ensure a consistent and complementary approach to the application of the new rules, whilst respecting the different statutory roles we deliver.

"Reducing queues and bringing down waiting times throughout the customer journey continues to be at the forefront of our commitments."

A huge backlog of claims forced out the previous Fos chief executive last year, but a temporary initiative to encourage businesses to settle complaints swiftly has already helped to cut this backlog to a third of what it was at the beginning of last year.

'Subjective treatment of subjective rules'

Jill Jackson, an independent non-executive director at impact investing platform The Big Exchange among others, who also spoke at the Campfire, said she was most concerned about the "subjectiveness" the Fos could sometimes show in its decision-making.

"You could have the same case presented to four or five different Fos employees and the outcome is different," she said. "And that's always a challenge when you've got subjective rules or guidance to look at.

"In terms of Fos, consistency of approach is really going to be key because the industry is going to be wrestling with how we do our best for these customers, and consistency will really help with that."

The panel agreed that the consumer duty itself contained a number of subjective elements, which could be challenging for firms to navigate.

SBG's Wallis said there was uncertainty in the requirement for firms to “avoid foreseeable harm to consumers”.

"The key issues firms get concerned about is when the regulation is subjective and they don't have that element of certainty about how they can comply," he said.

But he added: "What the FCA is getting at [with avoiding foreseeable harm] is it's not saying that every single individual customer can never achieve a poor outcome, so for example you could sell or advise a customer to purchase a mortgage and they may have their home repossessed, but that's not within the firm's gift so long as they understand what the risks are.