5 myths about Ombudsman providers busted

Ombudsman separating the truth from the myth

Alternative Dispute Resolution providers which include ombudsmen, provide services for business and consumers. When you can’t get your complaint resolved and the trader is a member of a scheme you can take your complaint to an ADR provider. Alternative Dispute Resolution: What it all means

In April 2018 the Government produced some research, Resolving Consumer Disputes. The findings included “…in cases where the ADR provider decided in favour of the consumer 83% of consumers perceived the process to be fair. This dropped to 17% in cases where the decision was in favour of the trader or a compromise. A similar, but less extreme, variation was seen for consumers who had used the courts (90% v. 53%).” Not exactly surprising.

lots of images of people shaking hands

The myths about ADR

Being in the world of consumer rights and stuff I talk about this area a lot. However, so often I hear the same inaccurate assumptions and beliefs from members of the public, including journalists. Sometimes these come from personal experience, sometimes guesses, sometimes from inaccuracies reported in the media and sometimes from I don’t know what! There are a lot of issues with the sector but these are mainly to do with oversight of the approval.

But here I am going to bust a few of those popular myths and hope it helps make things clearer! I’m using the term Ombudsman for ease but ADR provider is still the same in terms of these myths. (However, an Ombudsman has to be members of the Ombudsamn Association which has higher standards than for non members as shown by their minutes of a meeting revoking the Retail Ombudsman’s membership. See The Retail Ombudsman is no more and the minutes in appendix  J of More Ombudsman Omnishambles.

1) Ombudsman are consumer champions

Nope. A consumer champion will fight for the consumer. An ombudsman is an unbiased service. Each case is looked at individually and decisions are made on the evidence provided.

2) Ombudsmen are paid by the traders so will always see in their favour

Nope. The traders pay yes. The alternative would be for consumers to pay at least a proportion! The traders pay a yearly fee plus a case fee. If the case goes to arbitration then in some cases, such as with the Furniture Ombudsman and an independent inspection is required, the trader pays for this too. Therefore it is actually in the traders’ interest to try and resolve the matter and for it not to go to the Ombudsman. If you look at providers’ annual reviews you will see the breakdown of percentages of cases won by trader etc. If the consumer were made to pay as well you might as well go to court and these schemes are there to provide an ALTERNATIVE! An Ombudsman service gets paid the same win or lose so there is no incentive to find in favour of either party.

As an example:

In the period November 2016 to October 2017, Ombudsman Services closed 49,117 energy complaints. Of those, it helped resolve 8% without investigating because the energy company was willing to provide the consumer with their desired resolution.

Of the complaints that Ombudsman Services investigated, it:

  • upheld 66% (finding that the energy supplier had done something wrong and had not done enough to put it right).
  • maintained 26% (finding that although the energy supplier had done something wrong, it had already offered a fair resolution to the customer).
  • did not uphold 8% of complaints, (concluding that there was no substance to the original complaint and the energy supplier had treated the customer fairly).

3) All ombudsmen are funded by Government

Nope. All providers in the non-regulated sector, such as furniture and airlines are funded by the industry. Providers in the regulated sector such as the Financial Ombudsman, energy and telecoms are also funded by the industry so that services are free to consumers. Others, such as  the Local Government Ombudsman are funded with public funds.

4) If the trader doesn’t want to pay up it won’t

In the regulated areas of finance, energy and telecoms if a trader doesn’t abide by an ombudsman’s decision then it will be reported to the regulator. Financial Conduct Authority, Ofgem and Ofcom. They will investigate and if found to be in breach of the rules can be shut down. In the non-regulated areas if the trader doesn’t abide by a decision they will be expelled from the scheme. The rate for non compliance is very low.

ADR scheme Year No. Reason for expulsion
The Motor Ombudsman 2016 3 2 Non-cooperation with scheme, 1 with outcome
The Motor Ombudsman 2015 8 Non-cooperation with scheme
The Furniture Ombudsman 2016 0 N/A
The Furniture Ombudsman 2017 1 Non compliance

There are however issues with compliance in the aviation sector, particularly with AviationADR members. See more details in More Ombudsman Omnishambles and Landing in Court with Ryanair.

5) There are lots of people who have gone to court when not happy with Ombudsman decision

If the Ombudsman doesn’t see in your favour it doesn’t necessarily mean it is wrong. It could be that you didn’t provide enough evidence and the same could happen in court. See Energy ombudsman shows how to keep heat on your supplier for an article from the Energy Ombudsman on how best to present your case.

The court option always remains open to you. But actually very few people do this. An ombudsman will usually be open to looking again at any case if you have more evidence. A judge can only look at evidence. There are cases where people go to the Small Claims Court, but often these don’t get reported accurately in the media which is misleading. For example, one recent case was reported in the media as the judge seeing in favour of the consumer where the ombudsman hadn’t. Actually it was because the trader didn’t attend and so a default judgement was made.

There are issues with ADR

Yup. Not a myth!

Westminster Business Forum seminar Next steps for consumer protection in the UK – dispute processes, enforcement and the consumer markets green paper. 15/11/18 Alternative Dispute Resolution – approval and oversight in the loosest possible sense of the words…

There are many issues regarding ADR and Ombudsmen providers. These are to do with the oversight by the approval bodies. See Government and regulators continue to fail on resolving consumer disputes and Landing in Court with Ryanair. These articles include links to reports (Ombudsman Omnishambles and More Ombudsman Omnishambles in particular). They also link to articles from Which? and The Independent that describe a number of problems which are not the fault of providers and provide  warnings about one provider, Consumer Dispute Resolution Limited run by Dean Dunham which runs RetailADR, UtitlitiesADR and AviationADR.

man talking to couple

 

The Small Claims Court process made simple

legal actionHave you considered alternatives to court?
Have you considered using an alternative dispute resolution service before taking someone to the Small Claims Court? These ways may be quicker cheaper and more simple. But if you have followed all the tips on how to complain, used the How To Complain: The ESSENTIAL Consumer Guide to Getting REFUNDS, Redress and RESULTS! and the ADR avenues are not open to you then when all else fails and you can’t get the money you are owed you may choose to go to the Small Claims Court. There isn’t actually a Small Claims Court. It is the County Court through which a simple shorter process is available. Usually hearings last less than a day.

There are different processes in Scotland (where you can claim for up to £3,000 or up to £5,000 depending on case) and Northern Ireland £3,000.

You must try and resolve the matter before applying to the court. The court will expect you to have done this and given the defendant warning about going to court if a satisfactory response is not received within a set time. This is called a “Letter before action” which needs to state the facts – that there is money owed, why it is owed and how much is owed. The demand, with a reasonable period (usually 14 days is sufficient for the debt to be repaid), needs to state that if acknowledgment or reply is not received within 14 days, then proceedings will be prepared and issued.

What to consider before using the Small Claims Court

  • It takes ages. From start to court hearing is usually about 6 months. The process is relatively simple but not always completely clear, and changes, so don’t be caught out if you have been through the process before and read through all the information about all the stages and possible outcomes. It takes 6 months because there is time between all the stages of different paperwork.
  • If you are thinking of taking a large organisation like Tesco to court as I did, the chances of you being paid when you win are of course I really wanted to not be paid in time so I could send the bailiffs in and I didn’t get paid but it was just the usual poor internal communication. But seriously, if you take a rip off builder to court for example, consider the chances of being paid, the potential further costs of enforcing the judgement, and the builder going bankrupt.
  • Whether you can take on further stress knowing that the whole process will take 6 months and a fair bit of your time putting evidence together and undertaking the court (I did not find the court paperwork cumbersome but putting evidence together can be).
  • The likelihood of winning.

Fees
£10,000 the case can still go through the small claims process but if you as a claimant lose you may have to pay the defendant’s costs. Claims for personal injury must be under £1,000. It also needs to be less than £1,000 when a tenant is claiming against their landlord because they want repairs or other work undertaken on the property and those works are less than £1,000. In Scotland and Northern Ireland, the Small Claims Court cannot be used to claim personal injury compensation at all. If you’re filing a personal injury claim in Scotland or Northern Ireland, contact a solicitor for advice on how to begin proceedings.

You may be exempt from paying fees if you are on a low income but there is a long form to fill out to discover if you are eligible.

Using Money Claim Online (MCOL) is cheaper and I would recommend you use it. You can still ‘phone the court for advice (administrative) and when I have done so I have found them really helpful.

Process
When you apply online all the details you need are on the website, but these are the very basics. You fill out a form from your local court but ideally online. Here you fill out all the details of the claim and contact details. One you keep and one is sent to the defendant. If it is complicated seek legal advice (Citizens Advice is free). You can also claim interest at 8%. The court sends a copy to the defendant.

The defendant can accept the claim and pay you, or they can make an offer of how to pay. You can accept this offer and if the defendant doesn’t pay you can take further legal action to enforce payment. If you do not accept the offer you will need to give your reasons and a court official will decide what is reasonable and will send both of you an order for payment (‘judgment for claimant after determination’). If you are not happy with this decision you can write to the court giving your reasons.  A judge will make a final decision and if the defendant does not keep to this arrangement you can take enforcement action.

If the defendant chooses to defend the case, they must respond within 14 days. A questionnaire is then sent to both parties. The parties will at this stage indicate whether they wish to try small claims mediation. Once all Direction Questionnaires are received the file is then referred to the District Judge for allocation. If parties have indicated that they wish to try mediation the District Judge will list the case for hearing for a date in the future and refer to mediation. If mediation is successful then the hearing will be cancelled, if not then the Claimant would pay the hearing fee 14 days before the hearing and the hearing will take place.

If mediation is successful then the Claimant would not get the issue fee back as this is for the issue of the claim and allocation, The fees that have been paid by the Claimant should be taken into account when accepting a settlement sum from the   Defendant.

A date and time is set for the hearing. Evidence is exchanged between the parties at least 14 days before the court hearing date.

Sometimes the court will not set a final hearing date at the allocation stage (when both parties are sent questionnaires). It could instead propose that the claim is dealt with without a hearing. If agreed by both parties it could be decided on papers only. The judge could hold a preliminary hearing if the claim requires special directions or where the judge feels that one party has no real prospect of succeeding and wants to sort out the claim as soon as possible to save everyone time and expense – or if the papers do not show any reasonable grounds for bringing the claim. A preliminary hearing, therefore, could become a final hearing where the matter is decided.

If the defendant doesn’t respond within the 14 days the judge can decide the case.

If the judge finds in your favour the judge will provide reasons for the decision. You will win your court costs.

If the defendant does not pay you can enforce the judgement. You have four choices:

Bailiffs for which you will pay another fee that the defendant will have to repay and fill out a “Warrant of control form”. The bailiff will attend the defendant’s property within 7 days and see if there are goods that can be sold. The defendant can make an offer to pay in instalments which you can agree or reject. If you reject you will return to court for the judge to determine repayment. You can add further costs for attending this hearing from the defendant.

Get money deducted from wages for which you will need to fill out a form to request that the defendant’s employer takes money from their wages to pay the debt – an “Attachment of earnings order”.

Freeze assets or money in an account for which you will need to fill out a“Third party debt order” so that assets in the defendant’s bank or building society are frozen and the court will decide if the money can be used to pay the   debt.

Charge the person’s land or property. You can ask the court to charge the defendant’s or company’s land or property for which you will need to fill out a “Charging order”. If the land or property is sold, the defendant must pay this charge before they get their money.

At the court and on the Government website you will find all the necessary forms and details of the process and details of the various possible outcomes and charges for different enforcements.

Tips for preparing and being in, court

  • Sue the right person, check you have the registered not just the trading name for example
  • Read everything the court sends you carefully
  • When using appendices (I had numerous in the Tesco case) number them and refer to each piece by the number in the explanation in Make it easy for the judge.
  • Clearly demonstrate how the law has been broken g. “The photo of item in appendix x shows described fault.”
  • Use good English and get someone to check it if you are
  • Check deadlines for court
  • Check and double check your paperwork and, unless you are absolutely sure it makes perfect sense, get someone to to check through for you.
  • Be objective don’t use any emotive
  • Be polite and precise
  • When at court be respectful and allow for them running
  • Don’t forget to claim for court fees, any out of pocket expenses for going to court and to provide receipts for these.

I’ve been to court three times, one of them a builder took me! I won all 3 times, one of them being against Tesco. I have also helped other people through the process when we have not succeeded through other means! Fees at point of publishing this post are here.

A film for CAB on options open to you when you can’t get joy through customer services: