For instance, often the Fos refers to the FCA’s Principles for Business when upholding complaints, but because a breach of the principles is not enforceable as a civil liability, FSCS cannot uphold a claim solely on this basis."
Claire Collinson, a solicitor helping a claimant, believes all of the regulatory conditions FSCS needs to fulfil to declare a company in default have been met with Rowanmoor, which she says has been confirmed by a combination of the Fos decision and Rowanmoor’s administrators’ reports.
"It is undoubtedly the case that once a final decision has been made by the Fos and accepted by a consumer, a civil liability is created because a final decision is enforceable through the Civil Courts and creates, therefore, a civil liability.
"If they have a reason for further delay, I think it’s reasonable to expect that to be explained to the consumers who are waiting for the compensation confirmed by the Fos (and accepted by Rowanmoor) to be due to them," she said.
But the FSCS said the eligibility criteria in its rules do not just require a civil liability, there needs to be a civil liability in respect of a “protected claim”.
"A 'protected claim' is a term defined in our rules and not in the Fos rules. Whilst a Fos award is enforceable in court, the rights of enforcement of that money award do not create a 'protected claim' in respect of a civil liability under our rules," it said.
"FSCS does take into account the Fos’ determinations, and considers information and evidence received from the Fos as part of our decision-making process, but it would not be appropriate for FSCS to simply follow a Fos determination without conducting our own investigations because of our stricter rules," the spokesperson added.
FSCS update
In an update to investors on May 22 the FSCS stated it had now received all available information and documentation from external parties and was now reviewing the evidence with a view to identifying eligible claims.
Bryans, who received the update on behalf of his clients, said more forward guidance was needed to assure his clients. "The least we would expect of the FSCS in these circumstances is that they appreciate the impact the lack of information is having and provide some clarity," he said.
"Surely there is some organisation in the FSCS and someone knows what’s happening next week and the week after. When do they expect the reach a decision on civil liability? Then what happens – do they get the 200 files out of the cupboard and start looking at these again?
