The FOS Expert Council’s guidelines issued at the meeting held on 30 August 2019
It is recommended that Financial Ombudsmen when determining approaches to consideration of consumers’ appeals should take into account the following.
On the issue of the Financial Ombudsman’s right, when considering an appeal from a consumer of financial services, to go beyond the limits of the amount of the claims made, as well as to resolve a claim that the consumer did not make.
In order to protect the rights and legitimate interests of consumers of financial services, the Law on the Financial Ombudsman was adopted, which establishes the procedure for out-of-court dispute resolution by the Financial Ombudsman between consumers of financial services and financial institutions.
The Law on the Financial Ombudsman does not provide for the consumer’s obligation to prove the circumstances to which he/she refers as the basis of his/her claims, which is proved by the absence in the law of any mention of documents substantiating the consumer’s claims, including their amount, as an attachment to the appeal.
To this end, the Financial Ombudsman has the right to arrange on his/her own an independent expert examination (assessment) on the subject of the dispute (Part 10 of Article 20 of the Law on the Financial Ombudsman).
At the same time, preparation and sending by the consumer of an appeal to the Financial Ombudsman does not require from the consumer special legal knowledge and is carried out on standard forms placed on the FOS official website in accordance with the Law on the Financial Ombudsman.
Taking into account the above-mentioned, if during the consideration of the consumer’s appeal the Financial Ombudsman establishes that in accordance with the requirements of the law the amount of money to be recovered in favour of the consumer is larger than the amount stated in the appeal, the Financial Ombudsman goes beyond the limits of the amount of the claims stated, arising from the non-performance of the contract by the financial institution, and makes a decision on its recovery in full.
At the same time, based on the provisions of Articles 2, 15, 22 of the Law on the Financial Ombudsman, the Financial Ombudsman considers and makes a decision in respect of those types of claims that are specified in the consumer’s appeal.
Besides, the Financial Ombudsman has the right to consider the consumer’s appeal only in respect of those claims, which were previously submitted by the consumer to the financial institution in accordance with the procedure established by Article 16 of the Law on Financial Ombudsman.
It should also be noted that in accordance with Paragraph 21 of Article 12 of Federal Law No. 40-FZ dated 25.04.2002 “On Compulsory Civil Liability Insurance of Motor Vehicle Owners”, the penalties (fines) or the amount of the financial sanction provided for by the said law in case of failure to meet the deadline for insurance indemnity or the deadline for sending a motivated refusal of insurance indemnity to the injured party, shall be paid to the injured party on the basis of an application submitted by him/her for payment of such penalties (fines) or the amount of such financial sanction.
Thus, the Financial Ombudsman only resolves those claims that were stated by the consumer of financial services in the appeal sent to the Financial Ombudsman.
