MOU_with_FCA-APRIL2013.pdf

W Hunter made this Rhyddid Gwybodaeth request to The Financial Conduct Authority

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Roedd y cais yn rhannol lwyddiannus.

Dear The Financial Conduct Authority,

The response I received from HM Treasury under FOIA included this document.

http://www.financial-ombudsman.org/about...

Please provide the names, and or positions, and or contact details for same, for all staff responsible within your organisation for liaising with the FOS regarding this document at all levels and identify which person or position has final responsibility for overall communication.

Please identify if possible which of the identified parties are responsible for each portion of this document if more than one person is involved.

It is especially important in respect to sections :-

"6b The Financial Ombudsman Service Limited’s main role, as the scheme operator, is to operate a scheme to resolve disputes, as an alternative to the civil courts. The
scheme's statutory objectives are to resolve disputes quickly and with minimum
formality on the basis of what is fair and reasonable in all the circumstances. The
scheme has three jurisdictions – the compulsory jurisdiction, the consumer credit
jurisdiction and the voluntary jurisdiction. "

Please specify any information as to which definition of "fair and reasonable in all circumstances" is used and which person or persons are responsible for that definition in regard to the issues previously raised under DISP 2.7.2. of your handbook.

"6c The FCA discharges its objectives by setting standards that regulated firms must
meet and taking action where such firms may be breaching those standards. The
FCA does not investigate individuals’ complaints against the firms it regulates and
cannot deal with a complaint on behalf of individual consumers. This is the role of
the Financial Ombudsman Service (ombudsman service). "

The standards set by the FCA under disp 2.7.2. are clear, however the firm in question failed to meet those standards and the FOS interpretation of DISP 2.7.2. does not comply with the accepted use of the english language however it is their interpretation which the firm is attempting to use to void a contract which is neither fair or reasonable.
Please specify any information held regarding the discussions of this matter between the FOS and FCA carried out in respect to the MOU and any actions proposed to require the firm to comply with the rule as written.

"6d The ombudsman service is operationally independent from the FCA. It aims to
provide consumers with a free independent service for resolving disputes between
consumers and businesses quickly and informally. The ombudsman service must
determine disputes on the basis of what it believes to be fair and reasonable in all
the circumstances of the case, taking into account certain matters including the
relevant law, regulations, regulator’s rules, guidance and standards, relevant
codes of practice and good industry practice. "

Please specify exactly which portions of "the relevant law, regulations, regulator’s rules, guidance and standards, relevant codes of practice and good industry practice." were applied to the decisions regarding DISP 2.7.2. and who within your organisation considered these matters under the MOU in respect to the issue raised by me.

"6e FSMA requires the FCA to take the necessary steps to ensure that the
ombudsman service is, at all times, capable of fulfilling its functions under FSMA.
Responsibility for oversight of the day-to-day operations of the ombudsman service
is for its board. "

Please specify which member of staff is responsible for stating that the FOS has correctly fulfilled its functions under the FSMA and MOU in relation to the completely perverse interpretation of DISP 2.7.2. and disclose any information held which applies to that decision.

Under section Statutory responsibilities section 7 appears to detail responsibilities for the FCA , in that it states "7 Under FSMA, the FCA is required to take such steps as are necessary to ensure that the scheme operator – the Financial Ombudsman Service Limited – is, at all times, capable of exercising its statutory functions, and in particular is responsible for:
(c) making rules for the compulsory jurisdiction on: complaint-handling by firms; activities
covered; complainants eligible; time limits; limits on awards; and levies to cover the
establishment and operation of that jurisdiction. "

It is the statutory Duty of the FCA to "Make Rules for the Compulsory Jurisdiction on - Complainants Eligible" of which DISP 2.7.2. https://www.handbook.fca.org.uk/handbook... is by the R in the identifying left hand column clearly stating it is one such Rule.

This Rule has been issued under your statutory duty and applies to a compulsory (required by law or a rule; obligatory.) jurisdiction (the official power to make legal decisions and judgements) however despite the statutory responsibilities to make the rule you claim no statutory power to interpret any such rule made under your statutory duty which means that if you cannot interpret it you cannot therefore enforce a rule you cannot interpret.

Please specify any information as to how you can undertake your statutory duty if you are unable to interpret a rule you actually wrote?, because if you cannot define what the rule means it cannot possibly be used by anyone and you have therefore failed in your statutory duty.

Please specify who within your organisation is responsible for Making Rules for the Compulsory Jurisdiction on - Complainants Eligible of which DISP 2.7.2. https://www.handbook.fca.org.uk/handbook... is one such rule, and if different the identity of the person and or government organisation who has responsibility for ensuring that the relevant person is competent to, and indeed has managed to, write applicable rules to comply with the requirements of your statutory duty.

Under section 8 however it appears then to state that "8 The Financial Ombudsman Service Limited (with the consent/approval of the FCA) is responsible, in particular, for:
(b) making rules (or standard terms) for the consumer credit and voluntary jurisdictions
on: complaint-handling by respondents, activities covered, complainants eligible, time
limits, limits on awards and levies to cover the establishment and operation of those
jurisdictions "

So the MOU states in section 7 that it is the statutory responsibility of the FCA to "Make Rules for the Compulsory Jurisdiction on - Complainants Eligible" before stating in section 8 that it is "The Financial Ombudsman Service Limited (with the consent/approval of the FCA) is responsible, in particular, for: (b) making rules (or standard terms) for the consumer credit and voluntary jurisdictions on: complainants eligible"

Please therefore specify whether the current DISP 2.7.2 Rule was made by the FCA, or made by the FOS with the consent and approval of the FCA and identify which members of each organisation are responsible for making this rule.

Under section 10 it states "Governance issues
10 Mindful of its obligation to take such steps as are necessary to ensure that the scheme
operator, the Financial Ombudsman Service Limited, is at all times, capable of exercising
its statutory functions, the FCA will: (f) take any other steps that may be necessary to ensure that the Financial Ombudsman Service Limited is, at all times, capable of exercising its statutory functions. "

Since both the FCA and FOS are fully aware that there is a major discrepancy between the interpretation of the statutory rule 2.7.2 using the accepted use of the English language and that undertaken by the FOS, please release any information regarding any steps undertaken by whichever staff within the FCA and their position / identities regarding it's obligation to address the fact that the FOS has not been and indeed is still not able to comply with the statutory functions in relation to rule DISP 2.7.2. which was provisioned as part of a statutory duty.

In relation to section 12 "12 The FCA and the Financial Ombudsman Service Limited will cooperate in the smooth running, and periodic review, of the arrangements for:
(d) consulting on and making rules affecting the Financial Ombudsman Service. " please specify any information held, including the position / identities of any staff involved in the arrangements for, consultations regarding or reviews of DISP 2.7.2. both before and after my issue was raised to either organisation.

Please specify who is responsible for setting the agenda for any such periodic review, the timetable for and any records regarding any such review and any information applicable to why DISP 2.7.2. either has or has not been included in any such review to date.

Section 13 states "Cooperation
13 The FCA and the Financial Ombudsman Service Limited agree that they will:
(b) seek to achieve a complementary and consistent approach, so far as that is
consistent with their independent roles;
(c) meet and communicate regularly – at appropriate levels of seniority – to discuss
matters of mutual interest;
(d) consult one another at an early stage on any issues that might have significant
implications for the other organisation; and
(e) share (for comment) at an early stage, draft documents (such as consultation papers
and briefings) that affect the other’s functions. "

In light of this section b-e please disclose any information held regarding how the diametrically opposed views on the interpretation of DISP 2.7.2. as written by the FCA and interpreted by the FOS has been cooperated on between the two organisations in regards to the complete inconsistency of the facts established to date?

Specify what if any communication has been undertaken in respect to this matter and provide any records regarding this.

Specify which staff and at which levels this communication was undertaken, along with any records.

Specify at what stage and or date these communications took place and any draft documentation applicable to disp 2.7.2

Section 16 onwards refers to Information Sharing "Information sharing
16 The Financial Ombudsman Service Limited must disclose information to the FCA
where in its opinion it considers that the information would or might be of assistance to
the FCA in advancing one or more of the FCA’s operational objectives. The FCA will
have regard to this information in giving effect to its consumer protection objectives."

Since the statutory duty to provide Rule DISP 2.7.2 exists, and the FOS interpretation of that rule is perverse in respect to the accepted use of the English language, it is incumbent on the FOS to disclose their revised interpretation of that rule as that would constitute information required by FCA to facilitate the operational objective of the FCA to produce rules required by statute.

Please specify whether this information was disclosed to the FCA by the FOS under the information sharing requirements of the MOU and which staff or positions were involved.

If no such information was provided please identify what possible actions can be undertaken by the FCA against the staff within the FOS for failing to bring this to their attention.

And finally, in light of section "18 Subject to any restrictions on disclosure of information (confidential or otherwise) at law, the FCA and the Financial Ombudsman Service Limited will seek to adhere to the following procedures when sharing information between the two entities:
(e) The FCA will give the Financial Ombudsman Service Limited information about:
proposed changes to rules or guidance on complaints-handling. "

This clearly states that the FCA is required to give information to the FOS relating to rules and guidance on complaints handling, the very issue which the FCA have repeatedly stated that they have no remit to give to the FOS.

Please specify any information held regarding the process or procedure for issuing information regarding rules and guidance to the FOS as specified in 18e and also any and all information held under that process applicable to DISP 2.7.2.

If no information within that process relates to DISP 2.7.2. then please identify the individual by name and or position within the organisation who should have been responsible for addressing this issue along with the mechanism for formal complaint action against that person for failing to undertake their required duty and or breach of statutory obligation by the FOS.

Yours faithfully,

W Hunter

The Financial Conduct Authority

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Freedom of Information, The Financial Conduct Authority

1 Atodiad

Our Ref: FOI5341

 

Dear Mr Hunter

 

Freedom of Information: Right to know request

 

I refer to your request for information under the Freedom of Information
Act 2000 ("the Act"), full details of which are attached in Annex A.  For
ease of reference, your request has also been numbered.

 

Before considering your request, please note that the MoU referred to in
your request has been superseded.  The current version is dated 18
December 2015 and is available on the FCA website (see this [1]link).

 

Your request has been considered and our response is as follows. 

 

Point 1: Whilst we hold some information falling in scope of this point,
we consider the names, positions and or contact details, to be the
personal data of the individuals concerned and disclosure would breach the
principles of the Data Protection Act 1998 (“DPA”).  Therefore, this
information is exempt from disclosure under section 40 (Personal data) of
the Act. For a detailed explanation as to why this exemption applies
please refer to Annex B.

 

Point 2: There is no sole individual is responsible for a particular
section of the MOU.  However, the overall delivery of such MOU’s is the
responsibility of the FCA Board and the CEO.

 

Point 3: We do not hold any information. 

 

Please note that the FOS’ determination of complaints on the basis of what
is ‘fair and reasonable in all the circumstances of the case’ is only
relevant to complaints that actually fall within the FOS’ jurisdiction
i.e. where the Ombudsman is determining on its merits a complaint which
falls within the FOS’ jurisdiction. The requirement that the Ombudsman
determines complaints on the basis of what is ‘fair and reasonable in all
the circumstances of the case’ does not apply where the Ombudsman is
deciding whether a complaint falls within its jurisdiction on the basis of
the complainant’s eligibility under DISP 2.7.

 

By way of background, the rules setting the extent of the compulsory
jurisdiction of the FOS are made by the FCA under section 226 of the
Financial Services and Markets Act 2000 (as amended) (see this [2]link).
The requirement that the FOS determines complaints falling within the
Compulsory Jurisdiction on the basis of what is “fair and reasonable in
all the circumstances of the case” has been set by Parliament and is in
section 228(2) of the Financial Services and Markets Act 2000 (as amended)
(see this [3]link). Parliament also gave the FOS the power to make scheme
rules specifying the matters which are to be taken into account in
determining whether an act or omission was fair and reasonable (see
paragraph 14(2)(a) of Schedule 17 to the Financial Services and Markets
Act 2000 (as amended) (at this [4]link). The FOS’ scheme rules on this
issue are set out in the Dispute Resolution: Complaints (DISP) part of the
FCA’s Handbook, specifically DISP 3.6.1R and DISP 3.6.4R (at this
[5]link).

 

Point 4: Where you refer to the ‘firm’, we have interpreted this to mean
the FOS.  We do not hold any information you are seeking.  This is because
the FOS is operationally independent of the FCA and makes its own
decisions.  It is therefore not within the FCA’s power to require the FOS
to reopen complaints or direct the FOS to decide a complaint in a
particular way.

 

Point 5: We do not hold any information. Please also see the response to
Point 3 in respect of the application of the Ombudsman’s ‘fair and
reasonable’ jurisdiction.

 

If you have any questions about what was considered by the Ombudsman in
reaching its decision on the jurisdictional aspects of your complaint,
this would be a matter for the FOS.

 

Point 6: We do not hold any information.  Responsibility for ensuring FOS
is capable of carrying out its functions is the FCA Board’s.  This
however, does not go down to the interpretation of individual rules or
individual complaints as the FOS is independent of the FCA and is
responsible for making its own decision regarding complaints.  If a
complainant is dissatisfied with a decision taken by an Ombudsman, they
should contact the FOS. It is not the role of the FCA to act as
adjudicator.

 

Point 7: We do not hold any information.

 

Point 8: As explained in your previous request FOI5255, the FCA Board made
DISP 2.7.2R to the extent that it is a compulsory jurisdiction rule and
approved the making of that rule by the FOS to the extent that it is a
voluntary jurisdiction rule.

 

Point 9: DISP 2.7.2R was made by the FCA for the Compulsory Jurisdiction,
and by the FOS (with the FCA’s approval) for both the Voluntary
Jurisdiction and the since repealed Consumer Credit Jurisdiction in March
2008. This information is contained in the Dispute Resolution: Complaints
(Simplification (No 2) and other Amendments) Instrument 2008 (which is
public and can be accessed via the online Handbook by clicking on the
[6]link).  The relevant Boards made (and approved) the rules. 

 

Point 10: We do not hold any information.

 

Point 11 and 12: Whilst it may be possible that we hold the information
you are seeking, for us to establish whether information is held,
extensive searches would have to be undertaken to identify any relevant
information. Therefore, we estimate that, in order to comply with both
points, would exceed the cost limit. This is because, without manually
reviewing all records to see if they related to a change to the DISP
rules, we cannot identify who may have been involved or responsible for
consultation. To carry out this exercise would exceed the cost limit
provided for in the Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2004, therefore Section 12 (Cost
of compliance exceeds appropriate limit) of the Act applies.  For a
detailed explanation as to why this exemption applies, please refer to the
Annex B.

 

Please be aware that subsequent to the issues being raised, we do not hold
any information.

 

Point 13:  We do not hold any information.

 

Points 14, 15 and 16: We have interpreted these points as a follow-on from
point 13.  As a result we do not hold any information.

 

Point 17 and 18: We hold no information.  However, the FCA has no power to
impose sanctions on the FOS as an organisation or its employees. For the
FCA’s powers in respect of members of the FOS’ board, please see paragraph
3 (Constitution) of Schedule 17 (The Ombudsman Scheme) to the Financial
Services and Markets Act 2000, available at this [7]link. As noted above,
if a complainant is dissatisfied with a decision taken by an Ombudsman,
they should contact the FOS.

 

Point 19: Whilst it may be possible that we hold the information you are
seeking in regard to the first part of this point, we do no hold such
information in the exact form or at the level of detail you have
requested, so the information is not readily available. Therefore, we
estimate that, in order to comply this point would exceed the cost limit.
This is because, we would need to conduct searches of various repositories
as well as emails and hardcopy files to see if any information related to
processes, procedure or applicable to DISP 2.7.2R. To carry out this
exercise would exceed the cost limit provided for in the Freedom of
Information and Data Protection (Appropriate Limit and Fees) Regulations
2004, therefore Section 12 (Cost of compliance exceeds appropriate limit)
of the Act applies.  For a detailed explanation as to why this exemption
applies, please refer to the Annex B.

 

Whilst we don’t know what it meant by 19 (ii), for us to identify
potential relevant information we consider it would result in the same
process outlined above and Section 12 also applies.

 

Point 20: As this is a continuation of point 19, section 12 also applies
to this point.

 

Yours sincerely

 

Information Disclosure Team / Cyber and Information Resilience Dept

 

[8]Description: cid:image001.png@01D2A7C9.64DDD390

25 The North Colonnade

Canary Wharf

London

E14 5HS

 

Tel:    +44 (0)20 7066 8080

 

[9]www.fca.org.uk

 

Your right to complain under the Act

 

If you are unhappy with the decision made in relation to your request, you
have the right to request an internal review.  If you wish to exercise
this right you should contact us within three months of the date of this
response.

 

If you are not content with the outcome of the internal review, you also
have a right of appeal to the Information Commissioner at Information
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9
5AF. Telephone: 01625 545 700. Website: [10]www.ico.org.uk

 

Annex A

 

Please note only those sections highlighted in bold have been considered
under the Act as we considered the remainder to be your comments.

 

Memorandum of Understanding (MOU) between FCA & FOS 1st April 2013.

 

The response I received from HM Treasury under FOIA included this
document.

 

[11]http://www.financial-ombudsman.org/about...

 

(1)               Please provide the names, and or positions, and or
contact details for same, for all staff responsible within your
organisation for liaising with the FOS regarding this document at all
levels and identify which person or position has final responsibility for
overall communication.

 

(2) Please identify if possible which of the identified parties are
responsible for each portion of this document if more than one person is
involved.

 

It is especially important in respect to sections :-

 

"6b The Financial Ombudsman Service Limited’s main role, as the scheme
operator, is to operate a scheme to resolve disputes, as an alternative to
the civil courts.  The scheme's statutory objectives are to resolve
disputes quickly and with minimum formality on the basis of what is fair
and reasonable in all the circumstances.  The scheme has three
jurisdictions – the compulsory jurisdiction, the consumer credit
jurisdiction and the voluntary jurisdiction. "

 

(3)Please specify any information as to which definition of "fair and
reasonable in all circumstances" is used and which person or persons are
responsible for that definition in regard to the issues previously raised
under DISP 2.7.2. of your handbook.

 

"6c The FCA discharges its objectives by setting standards that regulated
firms must meet and taking action where such firms may be breaching those
standards. The FCA does not investigate individuals’ complaints against
the firms it regulates and cannot deal with a complaint on behalf of
individual consumers.  This is the role of the Financial Ombudsman Service
(ombudsman service).  "

 

The standards set by the FCA under disp 2.7.2. are clear, however the firm
in question failed to meet those standards and the FOS interpretation of
DISP 2.7.2. does not comply with the accepted use of the english language
however it is their interpretation which the firm is attempting to use to
void a contract which is neither fair or reasonable.

(4)Please specify any information held regarding the discussions of this
matter between the FOS and FCA carried out in respect to the MOU and any
actions proposed to require the firm to comply with the rule as written.

 

"6d  The ombudsman service is operationally independent from the FCA. It
aims to provide consumers with a free independent service for resolving
disputes between consumers and businesses quickly and informally. The
ombudsman service must determine disputes on the basis of what it believes
to be fair and reasonable in all the circumstances of the case, taking
into account certain matters including the relevant law, regulations,
regulator’s rules, guidance and standards, relevant codes of practice and
good industry practice. "

 

(5) Please specify exactly which portions of "the relevant law,
regulations, regulator’s rules, guidance and standards, relevant codes of
practice and good industry practice." were applied to the decisions
regarding DISP 2.7.2. and who within your organisation considered these
matters under the MOU in respect to the issue raised by me.

 

"6e FSMA requires the FCA to take the necessary steps to ensure that the
ombudsman service is, at all times, capable of fulfilling its functions
under FSMA.

Responsibility for oversight of the day-to-day operations of the ombudsman
service is for its board. "

 

(6)          Please specify which member of staff is responsible for
stating that  the FOS has correctly fulfilled its functions under the FSMA
and MOU in relation to the completely perverse interpretation of DISP
2.7.2. and disclose any information held which applies to that decision.

 

Under section Statutory responsibilities  section 7 appears to detail
responsibilities for the FCA , in that it states  "7 Under FSMA, the FCA
is required to take such steps as are necessary to ensure that the scheme
operator – the Financial Ombudsman Service Limited – is, at all times,
capable of exercising its statutory functions, and in particular is
responsible for:

(c)   making rules for the compulsory jurisdiction on: complaint-handling
by firms; activities

covered; complainants eligible; time limits; limits on awards; and levies
to cover the establishment and operation of that jurisdiction. "

 

It is the statutory Duty of the FCA to "Make Rules for the Compulsory
Jurisdiction on - Complainants Eligible" of which DISP 2.7.2.
[12]https://www.handbook.fca.org.uk/handbook... is by the R in
the identifying left hand column clearly stating it is one such Rule.

 

This Rule has been issued under your statutory duty and applies to a
compulsory (required by law or a rule; obligatory.) jurisdiction (the
official power to make legal decisions and judgements) however despite the
statutory responsibilities to make the rule you claim no statutory power
to interpret any such rule made under your statutory duty which means that
if you cannot interpret it you cannot therefore enforce a rule you cannot
interpret.

 

(7)          Please specify any information as to how you can undertake
your statutory duty if you are unable to interpret a rule you actually
wrote?, because if you cannot define what the rule means it cannot
possibly be used by anyone and you have therefore failed in your statutory
duty.

 

(8)          Please specify who within your organisation is responsible
for Making Rules for the Compulsory Jurisdiction on - Complainants
Eligible of which DISP 2.7.2.
[13]https://www.handbook.fca.org.uk/handbook... is one such
rule,  and if different the identity of the person and or government
organisation who has responsibility for ensuring that the relevant person
is competent to, and indeed has managed to, write applicable rules to
comply with the requirements of your statutory duty.

 

Under section 8 however it appears then to state that "8 The Financial
Ombudsman Service Limited (with the consent/approval of the FCA) is
responsible, in particular, for: 

(b)   making rules (or standard terms) for the consumer credit and
voluntary jurisdictions

on: complaint-handling by respondents, activities covered, complainants
eligible, time limits, limits on awards and levies to cover the
establishment and operation of those jurisdictions "

 

So the MOU states in section 7 that it is the statutory responsibility of
the FCA to "Make Rules for the Compulsory Jurisdiction on - Complainants
Eligible"  before stating in section 8 that it is "The Financial Ombudsman
Service Limited (with the consent/approval of the FCA) is  responsible, in
particular, for:  (b)   making rules (or standard terms) for the consumer
credit and voluntary jurisdictions on: complainants eligible"

 

(9)          Please therefore specify whether the current DISP 2.7.2 Rule
was made by the FCA, or made by the FOS with the consent and approval of
the FCA and identify which members of each organisation are responsible
for making this rule.

 

Under section 10 it states "Governance issues

10     Mindful of its obligation to take such steps as are necessary to
ensure that the scheme

operator, the Financial Ombudsman Service Limited, is at all times,
capable of exercising

its statutory functions, the FCA will: (f)    take any other steps that
may be necessary to ensure that the Financial Ombudsman Service Limited
is, at all times, capable of exercising its statutory functions.  "

 

(10) Since both the FCA and FOS are fully aware that there is a major
discrepancy between the  interpretation of the statutory rule 2.7.2 using 
the accepted use of the English language and that undertaken by the FOS,
please release any information regarding any steps undertaken by whichever
staff within the FCA and their position / identities regarding it's
obligation to address the fact that the FOS has not been and indeed is
still not able to comply with the statutory functions in relation to rule
DISP 2.7.2. which was provisioned as  part of a statutory duty.

 

In relation to section 12 "12     The FCA and the Financial Ombudsman
Service Limited will cooperate in the smooth running, and periodic review,
of the arrangements for:

 

(11) (d) consulting on and making rules affecting the Financial Ombudsman
Service. "please specify any information held, including the position /
identities of any staff involved in the arrangements for, consultations
regarding  or reviews of DISP 2.7.2. both before and after my issue was
raised to either organisation.

 

(12) Please specify who is responsible for setting the agenda for any such
periodic review, the timetable for and any records regarding any such
review and any information applicable to why DISP 2.7.2. either has or has
not been included in any such review to date.

 

Section 13 states "Cooperation 

13     The FCA and the Financial Ombudsman Service Limited agree that they
will: 

(b)   seek to achieve a complementary and consistent approach, so far as
that is  

consistent with their independent roles;

(c)   meet and communicate regularly – at appropriate levels of seniority
– to discuss

matters of mutual interest;

(d)   consult one another at an early stage on any issues that might have
significant

implications for the other organisation; and

(e)   share (for comment) at an early stage, draft documents (such as
consultation papers

and briefings) that affect the other’s functions.  "

 

(13) In light of this section b-e please disclose any information held
regarding how the diametrically opposed views on the interpretation of
DISP 2.7.2. as written by the FCA and interpreted by the FOS has been
cooperated on between the two organisations in regards to the complete
inconsistency of the facts established to date?

 

(14) Specify what if any communication has been undertaken in respect to
this matter and provide any records regarding this.

 

(15) Specify which staff and at which levels this communication was
undertaken, along with any records.

 

(16) Specify at what stage and or date these communications took place and
any draft documentation applicable to disp 2.7.2

 

Section 16 onwards refers to Information Sharing "Information sharing

16     The Financial Ombudsman Service Limited must disclose information
to the FCA

where in its opinion it considers that the information would or might be
of assistance to the FCA in advancing one or more of the FCA’s operational
objectives. The FCA will have regard to this information in giving effect
to its consumer protection objectives."

 

Since the statutory duty to provide Rule DISP 2.7.2 exists, and the FOS
interpretation of that rule is perverse in respect to the accepted use of
the English language, it is incumbent on the FOS to disclose their revised
interpretation of that rule as that would constitute information required
by  FCA to facilitate the operational objective of the FCA to produce
rules required by statute.

 

(17) Please specify whether this information was disclosed to the FCA by
the FOS under the information sharing requirements of the MOU and which
staff or positions were involved.

 

(18) If no such information was provided please identify what possible
actions can be undertaken by the FCA against the staff within the FOS for
failing to bring this to their attention.

 

And finally, in light of section  "18 Subject to any restrictions on
disclosure of information (confidential or otherwise) at law, the FCA and
the Financial Ombudsman Service Limited will seek to adhere to the
following procedures when sharing information between the two entities:

(e)  The FCA will give the Financial Ombudsman Service Limited information
about:

proposed changes to rules or guidance on complaints-handling. "

 

This clearly states that the FCA is required to give information to the
FOS relating to rules and guidance on complaints handling, the very issue
which the FCA have repeatedly stated that they have no remit to give to
the FOS.

 

(19) Please specify any information held regarding the (i) process or
procedure for issuing information regarding rules and guidance to the FOS
as specified in 18e and also (ii) any and all information held under that
process applicable to DISP 2.7.2.

 

(20) If no information within that process relates to DISP 2.7.2. then
please identify the individual by name and or position within the
organisation who should have been responsible for addressing this issue
along with the mechanism for formal complaint action against that person
for failing to undertake their required duty and or breach of statutory
obligation by the FOS.

 

Annex B

 

·        Section 40 (Personal information)

 

To the extent that the information that we hold contains personal data
about an individual, section 40(2)(b) of the Act provides that "Any
information to which a request for information relates is also exempt
information if … either the first or second condition below (see sections
40(3) and 40(4) of the Act) is satisfied".

We have applied this exemption because the first condition (as stated in
section 40(3)(a)(i) of the Act) is satisfied as some of the information
requested comprises the personal data of individuals other than yourself
which, if disclosed, would breach the Principles in the DPA.  It would be
a breach of Principle 1 to disclose such information, as it would not be
fair to the individuals concerned.  Individuals have a reasonable
expectation of their personal information being protected and to breach
this expectation would not be ‘fair’ (as noted in the first principle) and
the release of such information may be detrimental to them.

 

 

·              Section 12 (Costs of compliance exceeds appropriate limit)

 

We are not required to comply with a request under the Act if it would be
too expensive to do so, as estimated in accordance with the Freedom of
Information and Data Protection (Appropriate Limit and Fees) Regulations
2004 (the “Regulations”) made by the Ministry of Justice.  The Regulations
provide that, for the FCA, the cost limit is £450, i.e. 18 hours at the
rate of £25 per person hour.  The Regulations allow us to take into
account, when estimating the cost of complying with a request, time spent
determining whether we hold the information requested, locating and
retrieving it and extracting the information from the relevant
document(s).

 

As explained above, in order to identify whether information is held for
points 11, 12, 19 and 20 would require various repositories of our records
to be manually reviewed. This exercise, we believe would take well in
excess of 18 hours.  On that basis, we estimate that the cost of
retrieving the information you have requested would far exceed the £450
limit.

 

As our policy is not to divert our resources from our regulatory functions
in order to meet requests under the Act in excess of the cost limit, we
will not carry out an exercise to identify the information you have
requested.

 

 

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The FCA (or, if this email originates from the Payment Systems Regulator
Limited, the FCA on behalf of the Payment Systems Regulator Limited / the
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This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from the
Financial Conduct Authority (FCA), or the Payment Systems Regulator
Limited.

The Financial Conduct Authority (FCA) is registered as a limited company
in England and Wales No. 1920623. Registered office: 25 The North
Colonnade, Canary Wharf, London E14 5HS, United Kingdom

The Payment Systems Regulator Limited is registered as a limited company
in England and Wales No. 8970864. Registered office: 25 The North
Colonnade, Canary Wharf, London E14 5HS, United Kingdom

Switchboard 020 7066 1000

Web Site http://www.fca.org.uk (FCA); http://www.psr.org.uk (the Payment
Systems Regulator Limited)

References

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