Despite laudable aims, yesterday's FCA guidance on what constitutes regulated advice was published alongside a report on the (perceived) retrospective application of rules but neither is likely to achieve its stated aim – and there's a revealing contradiction between the two...
On inconsistency of FOS decisions and the resulting reluctance of firms to be innovative, the FCA guidance says: "The fact that the Financial Ombudsman Service may arrive at different outcomes on separate cases should not be seen as surprising. It is not a question of inconsistency, but a matter of the Financial Ombudsman Service looking at each complaint individually and making a decision on what it believes is fair and reasonable in the circumstances of that particular case. There may be surface similarities between some complaints. But when looked at in detail, the Financial Ombudsman Service generally finds that very different facts and issues are involved. This reflects the reality that everyone's personal and financial circumstances will be different. Deciding a complaint, like financial advice itself, can involve a complex balance of judgement, often based on a wide array of seemingly contradictory facts. The 'right' outcome in one case will not automatically be the right answer in other 'similar' cases".
On the same day, the report about the perceived retrospective application of higher standards in hindsight said the following about taking FOS decisions into account: "Individual complaints are decided on their own facts and do not make precedents. That said, firms that operate in accordance with our rules, and in particular, with our principles of business, are unlikely to receive an Ombudsman decision against them. Additionally, we do recommend firms ensure that lessons learned as a result of determinations by the Ombudsman are effectively applied in future complaint handling (DISP 1.3.2AG), and firms are required to put in place reasonable steps to ensure that in handling complaints it identifies and remedies any systemic or recurring problems (DISP 1.3.3R)".
You'll be forgiven for being confused as to the lessons to be learned for future complaints handling from the reality that, even in similar cases, everyone's personal circumstances are different.