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Leon Livermore former CTSI CEO talks to Helen Dewdney Part 2

I talk with former CEO of Chartered Trading Standards Institute (CTSI), Leon Livermore, in a series of exclusive interviews. In the first one we discussed his achievements and challenges at CTSI.

Today we talk about his opinions on CTSI’s monitoring and approval of Alternative Dispute Resolution (ADR). We explore the difficulties with implementing what he would have liked and what he would like to see happen.

Leon in his kitchenThe background to ADR criticism

Leon Livermore was the CEO of the CTSI for almost 8 years, until March 2021.

I’ve met him a few times at various events and sort of got on! I say “sort of” because over the years I co-wrote two research reports on Alternative Dispute Resolution. (ADR). The first was Ombudsman Omnishambles:  Serious unresolved issues affecting the operation of the ombudsman ADR system in the UK . The second was More Ombudsman Omnishambles: The UK ADR landscape 20 months on… These were were highly critical of the CTSI and of CAA in particular for their approval and monitoring of ADR schemes.

Report cover CDRL, CTSI, CAA, OA, Dean Dunham,

Report cover CDRL, CTSI, CAA, OA, Dean Dunham,

 

 

 

 

 

 

So, I thought it would be interesting to have a chat about his time at CTSI and challenge him on some of that ADR stuff too!

ADR – did Leon let the bad guys in? What happened about “Fit and Proper” people running schemes and more?

Leon was talking about the good guys and letting the bad guys in in some areas. Which led me straight into asking if he let them in! (The reports referred to a number of providers that could be considered “bad guys” and Leon was referring to some providers and also companies that were members of providers.)

In 2015 the ADR regulations came into force.

Fit and proper person test

Leon stated that the regulations came into force when the EU membership vote was coming and that everything was “We don’t gold plate regulations”. So the EU ADR regulations were transposed as they were. He hopes that with the Consumer Command Paper that is expected soon, that there is a chance to put some things right. The Ombudsman Omnishambles reports discussed the need for a “Fit and Proper” person test.

He acknowledged that there was an opportunity to put some robustness in and that there is certainly something around a “fit and proper” test that should now be undertaken. I challenged him on the CTSI not putting this test in place, particularly when we first called for this in February 2016. He said that “…if it had been us, we would have put a fit and proper test in, let’s be very clear on that.”

Auditing ADR providers

“Auditing to a standard that was put in place centrally” meant that the CTSI was not able to do anything about the implementing “fit and proper person” or do anything arbitrarily he says. He would like to see a fit and proper person test implemented for both the organisation and individual people involved.

Pushed on how much input the CTSI had on this, Leon said that they “tried to work with the civil servants there”. Political policy was to transpose and not add anything. Although other countries did, and the opportunity was missed. When directly asked who put a stop to introducing a “fit and proper person” test when civil servants seemed keen, Leon was very clear that it was Parliament. It just went straight for the transposition. The opportunity was missed. He hopes that the Consumer Command Paper will give the opportunity to correct some of the issues.

Future for the fit and proper person test

I also asked Leon what he would recommend if a provider that was already approved then failed the “fit and proper person” test. He replied “You can’t have an F&P test and then give authorisation to someone who isn’t fit and proper. But that needs to be balanced with an appropriate and graduated disciplinary process. So, the ultimate sanction would be revocation of approval and loss of “accreditation”. There would also need to build a safeguard of right of appeal. But you want to work through a process where you issue improvement notices etc.”

We observed here that it would make sense for both the ADR and Ombudsman systems to be working to the same standard to avoid any confusion for consumers.

Former CTSI CEO Leon Livermore talks about the need for a fit & proper person test in ADR provision

Differing standards for ADR providers

We spoke about the Ombudsman Association expelling a provider and the CTSI keeping the provider approved. Leon agreed that the OA standards were higher than CTSI’s. Although he referred to this as not unusual (for trade bodies and other sectors to have slightly higher standards in their own sector than in the public sector) he didn’t think it was acceptable.

Ombudsman Association standards compared with CTSI

He strongly believes that the “Fit and Proper Person” test within ADR should align with the “Fit and Proper Person” tests used by the OA and within the Codes scheme. He thinks that the Command Paper is an opportunity to achieve this. He would say the standard should be open to consultation but the OA standard sits above the competent authority’s.

For the Command Paper he would say that the OA had to be the standard but that there should be one standard across all schemes. This should be open to challenge and be consulted on. “It happens to be in this case that the OA’s standards sit higher than the CTSI and so it should be that one which is the starting point.”

I pushed Leon on whether there would have been providers that weren’t approved had the standards he’d wanted been in place. He said that there would have been audits that highlighted that they were sitting beneath the standards but would have had to be given a chance to raise their game, for fairness.

However, he also said “There were people who were signed off that wouldn’t have complied with the higher standards definitely”. Pushed on that therefore meaning that they would not have been signed off he argued that they wouldn’t have been submitted in the same form.

“There certainly would have been providers we would have had to do some work with to get them to the higher standard and we would have hoped to get them there”, he added.

Former CTSI CEO chats ADR standards with Helen Dewdney

 

Did the CTSI have sufficient powers for the approval and monitoring of ADR providers?

When asked if he felt that the CTSI wasn’t given enough powers to approve and monitor bodies, Leon said that it was interesting and the first answer was “Yes” but that there was an advantage to not having those powers.

This advantage meant that they had to get things agreed by consensus. So, that this has given a better working relationship with CTSI and providers. But he still thinks that “fit and proper”, mandating certain sectors and using trade associations are used in the best way for consumers and conflicts of interest that aren’t swayed in favour of businesses are essential for making improvements.

Asked directly if CTSI was stopped from putting in higher standards for ADR, Leon was quite clear. “Yes, because we were auditing to someone else’s standards.”

He accepted that the Ombudsman Association had higher standards than the CTSI and although he says it is not unusual for a trade body to have higher standards than those that sit in the public sector, he also doesn’t think it is acceptable and hopes that the Command Paper will provide the opportunity to address some of the shortcomings.

Former CTSI CEO Leon Livermore talks about powers and standards regarding ADR providers

Should ADR be mandatory?

Colleagues in the consumer world and I have been calling for ADR to be mandatory for years, so I asked Leon for his thoughts on this. Although he would like to see it mandatory across all sectors, he recognises that this is very unlikely to happen. He would, however, like to see it mandatory in the home improvement and motor sectors. His concern in those particular areas relates to the greater impact on people’s lives, so he would tend to prioritise the high value items.

More creatively, Leon wonders if we can work with all the sectors and bodies such as TrustMark to almost mandate ADR in the energy efficiency sector. This would work to drive up quality and consumer confidence. He sees this area as being one of the biggest challenges, and currently a “hidden” issue. It has to be Government policy driving it, he says, as consumer power will not achieve it.

Consumers and Vulnerability

Vulnerability plays a big part too, Leon believes. Almost anyone is vulnerable when they buy expensive items, such as a house, home improvement or car. These are the areas where there is an inbuilt vulnerability and Leon calls for a coherent Government strategy that emphasises their importance, so we cannot leave it to the market place.

With austerity coming, having to pay for the EU exit, Covid and an ageing population, businesses will cut corners having to make difficult choices.

“Where is the strategy?” Leon asks.

One of Leon’s biggest frustrations is the opportunity Government had with the EU exit in getting businesses and consumer groups in the same room to talk about what the issues are. He talks more about this in the video:

Former CTSI CEO Leon Livermore discusses making ADR mandatory with Helen Dewdney

 

Did anyone really understand the ADR regulations?

I asked Leon if he thought consumers understood the ADR regulations and he said that he didn’t even think that the regulators and business understood them!

Regarding businesses, Leon talked about having to accept that the regulatory bodies would have to set their standards lower than they would want. This is because it would be better to have the businesses inside a scheme. Giving the example of the Property Ombudsman, he praised their work, saying that it included some businesses CTSI  would never like but that it was better for them to be inside a scheme, so that their standards could be improved.

He noted that to only use enforcement at that bottom end is really expensive.

Not alone in raising concerns

Acknowledging that I was not alone in sending concerns to the CTSI, Leon said that there would be something to assess providers against if the standards are right. Not only would he like to get the standards for provider approval and monitoring right, he would also like to acquire the ability for people to challenge it.

He asks whether people like myself and Which? should have the ability to make a “super complaint”. This is so we can say that we don’t believe that a provider is giving good enough service. Which? amongst other consumer bodies already does have powers to make a super complaint in the consumer world. More about making a super complaint here. I think it unlikely that individual consumer champions will be given the same powers!

Former CTSI CEO Leon Livermore discusses understanding of the ADR Regulations with Helen Dewdney

Are there too many ADR providers and what about that consumer portal?

Leon sees both sides but leans towards leaving it open to a number of providers to compete.

I challenged Leon on this, pointing out the confusion that consumers have already regarding ADR. It is made worse by the fact that some local Trading Standards cover ADR, they cover different sectors, others are sector based etc? A point covered in the reports. He agreed that it is confusing for consumers but suggests that Citizen’s Advice (CA) should be responsible for a portal that directs consumers to the different options available.

After pointing out that we suggested such a portal in our Ombudsman Omnishambles reports in 2015(!), I asked Leon what had happened to this? After firstly saying it was terrible that he found himself agreeing with me so much (hehehe) he blamed Government funding and policy.

However, he says that the only thing that is stopping this from happening now is organisations looking after what’s in their best interests and not the best interests of consumers. He feels quite strongly that the different providers, trade associations etc. are all competing and that they could all signpost to the one portal. Leon says CA has funding, it just needs the co-operation of providers and other organisations.

Leon Livermore former CTSI CEO discusses number of ADR providers & single portal with Helen Dewdney

Next time in the interview series

Look out for the next episode where Leon and I talk about his criticisms of Government, what should be done and priorities for consumers.

 

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Civil Aviation Authority consults on dispute resolution

Consultation means listening and reacting – but have they done that?

When consumers have a problem getting a refund from an airline they can go to an Alternative Dispute Resolution (ADR) provider, who will decide whether the consumer or the airline is right in a dispute. The decision is binding on the airline. The current system is not working well and is under fire from a number of consumer champions/organisations to improve.

Consultation takes off

On 17 July 2020 The Civil Aviation Authority (CAA) launched a consultation on ADR which closed on 25 September 2020. The ADR process is meant to ensure that passengers have a place to go to arbitrate in cases where the airline and consumer are in dispute. In October consumer champion Helen Dewdney revealed that the CAA had not informed any stakeholders such as the Ombudsman Association for which all Ombudsmen are members nor other consumer rights bodies. When this was brought to the CAA’s attention it extended the deadline although it still did not inform stakeholders despite saying that stakeholders had not received the original consultation due to an IT error. [1]

The findings report was published [2] on 18 February 2021 and the responses were published in full on 4 March 2021.Aeroplane in sky with clouds

Does CAA favour the airlines?

The CAA was criticised for not consulting with consumers but it attempted to justify this decision saying that “The CAA does not consider that pausing the process to issue a public consultation is proportionate in the circumstances or will achieve the speedier outcomes for consumers that the ADR scheme is intended to achieve.” And yet it consulted solely with the airlines, which is clearly biased

It would appear that the CAA has in fact completely ignored all consumer voices. There were 13 responses and 8 were published in full: A response from one of the two ADR providers, one airline, 4 consumer champion individuals/organisations, the Ombudsman Association and the Rail Ombudsman, which operates the only current Ombudsman scheme in travel (Rail). All the consumer champions, including Which? and the Northern Ireland Consumer Council, called for there to be a single ombudsman.

Call for a single ombudsman

The CAA has consistently refused consider a single Ombudsman, despite concerns being raised by Which? [3]  the Ombudsman Association and in the Ombudsman Omnishambles and More Ombudsman Omnishambles reports. [4]

For example, in its response to the consultation, The Consumer Council Consumer Panel said:

“Although placed on the Citizen Space of the CAA website, it has clearly not been drafted or presented with citizens or consumers in mind. There is little excuse for this. The substantive proposals have been under consideration by the CAA for nearly a year. This is nevertheless a public consultation and the CAA should be and be seen to be, consulting everyone: ADR schemes, airlines and airports, consumers, consumer organisations, and other stakeholders such as claims management companies and specialist lawyers and legal firms.

Charging a fee – adding insult to injury?

ADR entities are allowed to charge consumers a fee (£25), returnable if the consumer wins the case. This has been criticised, as it acts as a barrier and could put consumers off using the service. In its response the CAA said:

“The CAA acknowledges that there is an ‘in principle’ argument that ADR should be free to the consumer at all times. In traditional regulated sectors, such as financial services, energy, etc, where participation in ADR is mandatory for businesses, it is more straightforward to implement ADR in a way which is free to consumers at the point of use.”

However, this is NOT the case. Other voluntary schemes, such as The Motor Ombudsman and Dispute Resolution Ombudsman, are voluntary schemes and do not charge.

This position from the CAA is one that you would expect from a trade association, not a regulator! They know it’s best practice but are clearly not going to do it!

Calls for a single Ombudsman in aviation

There have been calls from various stakeholders over many years for a single mandatory Ombudsman in Aviation. The CAA has stated that it feels that the ADR regulations prevent them from making ADR mandatory, or approving a single provider, and that neither can be achieved without legislation. Whilst legislation to appoint a single Ombudsman would be welcomed, it hasn’t stopped Ofgem adopting a policy position to only approve one provider, or prevented single mandatory ombudsman schemes being established in both the rail sector and the new homes sector in the absence of legislation.

A spokesperson for the Ombudsman Association said:

“Whilst we welcome the CAA’s stated desire to strengthen the current system of redress in the aviation sector, the small alterations they have proposed do not go far enough to meet the needs of aviation customers, as the OA and other organisations highlighted in response to their consultation. It is clearer than ever that a single mandatory ombudsman is required to provide effective redress in the aviation sector and to help drive the improvements that the CAA are trying to achieve. We will continue to engage with Government and other stakeholders on the need for a single mandatory ombudsman in the aviation sector.”

The rail Ombudsman comments

Kevin Grix is the Chief Ombudsman of The Dispute Resolution Ombudsman, which runs the Rail Ombudsman, operating now for nearly three years. He offered to share the experience of working with the Department for Transport, stakeholders, the regulatory body and members to set up a new scheme with the CAA. The Chief Ombudsman is the longest serving in the country and led on the creation of this new scheme. His preference is for a collaborative approach, eliciting buy in from companies and from consumers/consumer champions.

Grix says “It is no coincidence that regulated sectors in this country favour the Ombudsman model, not only because of the extra layers of protection that they provide – but also because of their now proven track record of helping industry to improve and raise standards. There seems little merit to me in resisting this model.

Consumer campaigners call for change

The Ombudsman Omnishambles report  and More Ombudsman Omnishambles both called for a single mandatory ombudsman per sector. The latter report in particular evidenced the higher standards required of an Ombudsman than any other ADR provider and called for the approval bodies to action this.

Which? was critical of the consultation too. It called for a more ambitious approach that included establishing single statutory mandatory ombudsman.

Citizen’s Advice has already called for mandatory membership of an ADR scheme for airlines in its April 2017 report Confusion, gaps, and overlaps. [5]

Independent review flawed

The consultation report states that in 2020 the CAA commissioned Verita to carry out an independent audit of the two CAA-approved ADR bodies for assurance as to the quality and consistency of decision making and to determine the extent to which these decisions are transparent.

However, Verita was a peculiar choice, given that is has no experience in undertaking research in the consumer arena. [6] The company undertook no research whatsoever with consumers, airlines or consumer organisations. It literally only looked at information given by the ADR providers! This approach is obviously flawed.

Helen Dewdney, The Complaining Cow, believes that the consultation was a complete whitewash:

“It is quite clear that the CAA restricted who was able to respond and then completely ignored anyone who spoke on behalf of consumers. The CAA should be impartial and not favouring airlines. There appears to no reason why there should not be a single Ombudsman for airlines. A single mandatory Ombudsman would reduce confusion and provide higher standards for all stakeholders, including businesses and consumers.”

References

[1] CAA launches consultation and tells no-one…

[2] CAP2104: Amendments to the CAA’s policy for ADR applicants and approved ADR entities (CAP1324) CAA Decision

[3] Which? related articles

https://www.which.co.uk/news/2020/10/more-airline-passenger-misery-as-court-cases-could-take-years/

https://www.which.co.uk/news/2019/10/easyjet-passengers-lose-out-in-compensation-merry-go-round/

https://www.which.co.uk/news/2019/10/hundreds-of-ryanair-complaints-rejected/

https://www.which.co.uk/news/2018/05/passengers-still-having-to-fight-for-flight-delay-compensation/

Which? press release where it called for a travel ombudsman:

https://press.which.co.uk/whichpressreleases/which-calls-for-overhaul-of-broken-airline-complaints-system-to-restore-damaged-trust-in-the-travel-industry/

[4] Ombudsman Omnishambles:  Serious unresolved issues affecting the operation of the ombudsman ADR system in the UK  and More Ombudsman Omnishambles: The UK ADR landscape 20 months on…

[5] CAB 2017 report Confusion, gaps, and overlaps.

[6] Independent expert audit of CAP 2104 Amendments to the CAA’s policy for ADR applicants and approved ADR entities – CAA Decision February 2021

The CAA consultation response CAP2104: Amendments to the CAA’s policy for ADR applicants and approved ADR entities (CAP1324) CAA Decision

The 8 responses published in full CAP2116: Responses to CAA Consultation on Policy for ADR applicants and approved ADR entities, CAP1324