Patricia Lovesey v The Information Commissioner

Introduction

1. This is an appeal against the Commissioner’s decision notice IC-371446-M2D1 of 2 May 2025 which held, on the balance of probabilities, that the Financial Ombudsman Service (the Ombudsman) did not hold the requested information.

2. The parties have consented to the appeal being determined without a hearing and we consider that it is in the interests of justice to do so, given the detailed written submissions. Background to the appeal

3. The Ombudsman resolves disputes that consumers and business cannot resolve themselves. The rules for how to handle complaints are published in the Financial Conduct Authority’s (FCA) Handbook.

4. The Independent Assessor (IA) deals with certain complaints about the Ombudsman. The IA’s terms of reference include the following: “Making a complaint

1. The Independent Assessor is appointed by and accountable to the Board of the Financial Ombudsman Service and is independent from the Chief Executive and Chief Ombudsman.

2. The Independent Assessor can consider service complaints about the standard of customer service and practical handling of a case provided by the Financial Ombudsman Service but not about its outcome, the merits of a case, and/or its legal and commercial obligations. The Independent Assessor’s role is not an appeal or review of the decision by an ombudsman.

3. Any party directly affected by how the Financial Ombudsman Service deals with a case can complain to the Independent Assessor.

4. The Financial Ombudsman Service must first have had a reasonable opportunity to respond through its own internal process for dealing with service complaints.

5. A service complaint to the Independent Assessor must be made within one month of a case being closed. Only in exceptional circumstances will the Independent Assessor consider a service complaint when the case is still open.

6. The Independent Assessor can’t comment on the merits or outcome of a case. This includes the Financial Ombudsman Service’s use of judgement about: • whether a complaint is within the Financial Ombudsman Service’s jurisdiction; • consideration and/or weighting of evidence; • whether to dismiss, reject or uphold a complaint; or • what redress to award.

7. The Independent Assessor will notify all parties affected by the service complaint, including the Financial Ombudsman Service, that a review is to take place and what it will cover.

8. The Independent Assessor will not consider a complaint or parts of a complaint where: • you have previously made a complaint to the Independent Assessor about the same issue; • the Financial Ombudsman Service hasn’t had a reasonable opportunity to address your complaint through its complaints process; • your complaint in the Independent Assessor’s opinion is frivolous or vexatious; • your complaint relates to any previous service complaint(s) which have received a final response, or appears to be a repeated attempt made to complain to the Financial Ombudsman Service on matters previously settled; • your complaint is made by a third party or representative without your prior written signed authority; • your complaint relates to matters other than the handling of the complaint by the ombudsman service, for example, how they have responded to a Freedom of Information or Subject Access Request. For these complaints, please contact our Information Rights Team at: [email protected]

9. The Financial Ombudsman Service will provide the Independent Assessor with access to all relevant information about the case, together with any comments on the issues to be reviewed, usually within two weeks.

10. The Independent Assessor might need to ask for any further information considered necessary to complete and issue the Review. The Review

11. The Independent Assessor will give a Review in writing to all parties, including the Financial Ombudsman Service. There is no appeal against the Independent Assessor’s Review.

12. If the Independent Assessor decides that the Financial Ombudsman Service hasn’t met its service standards, a recommendation may be made in the Review to the Chief Executive and Chief Ombudsman. This might be that the Financial Ombudsman Service should apologise and/or make a goodwill payment for the impact caused by the poor service.

13. If the Chief Executive and Chief Ombudsman (or their delegate) accept a recommendation from the Independent Assessor, they will write to the party who complained and will notify the Independent Assessor.

14. If the Chief Executive and Chief Ombudsman (or their delegate) doesn’t accept a recommendation, they will notify the Independent Assessor who will refer the matter to the Board of the Financial Ombudsman Service. The Board will usually decide on their response at their next meeting.

15. If the Board decides not to accept a recommendation, they will give their reasons to both the Independent Assessor and the party making the complaint. The reasons will be published in the annual directors' report. Reporting on complaints

16. Each year, the Independent Assessor will report to the Board of the Financial Ombudsman Service on the number and nature of the complaints they have received, and the recommendations they have made to the Chief Executive and Chief ombudsman (or referred to the board) in the last financial year. The Independent Assessor’s annual report will be published together with the Board’s formal public response.”

5. Ms Lovesey has concerns that the Ombudsman is not complying with its duties to be fair, reasonable and impartial. She has concerns about the function of the IA. She complains of a lack of accountability and integrity within the regulatory framework. She criticises the conduct of the Financial Conduct Authority (FCA) and the FRC Complaints Commissioner.

6. Ms Lovesey has particular concerns about what she calls the IA’s practice of issuing ‘side letters’, and what she sees as a lack of accountability arising from the use of ‘side letters’. It is clear from information in the bundle, which was not all before the public authority at the relevant time, that by a ‘side letter’ she means an initial letter to a complainant from the IA or one of its caseworkers, in which the IA or the caseworker explains the IA’s role and explains that certain parts of the complaint fall outside the IA’s remit and won’t be considered by the IA.

7. Ms Lovesey says that the Ombudsman asserts that a range of matters count as ‘service issues’ that can be reviewed by the IA, such as delays, misallocation of case files, poor investigation, factual errors, staff inexperience and failures to follow the dispute resolution rules in the FCA handbook. However, she says that in reality the IA then refuses to consider many of these same matters by categorising them as ‘judgment issues’ that fall outside her remit. According to Ms Lovesey, this creates a ‘concealed gap’ between what the Ombudsman promises and what the IA will review.

8. She says that adherence to the Ombudsman’s statutory duties requires the IA to review all matters that the Ombudsman itself treats as service failures, and the IA must be transparent about any exclusions. Instead, she maintains that the IA has failed to be open about what she will not investigate. She says that matters excluded from review are only mentioned in ‘side letters’ rather than in the IA’s Opinions or Annual Reports. The appellant considers this practice to be unjust, lacking in integrity, and favourable to the Ombudsman rather than to complainants.

9. Ms Lovesey also considers that the IA ought to log any such letters and to notify the Ombudsman board and executive so that any recurring trends can be notified and so that the ‘concealed gap’ is highlighted. Requests, Decision Notice and appeal The Request

10. This appeal concerns a request made to the Ombudsman and the IA on 17 September 2024. This appeal concerns part 2 of the request [ text/numbering in italics inserted by the tribunal ]: “[ Part 1] What is the maximum/average award made by the IA in the last 6 years [ Part 2] If/when the IA has ever notified the FOS executive team, FOS Board and the FCA Oversight Committee regarding: (i) the practice of issuing side letters notifying of concerns excluded from her review even though the FOS advises such concerns can be escalated to the IA; (ii) the lack of transparency, integrity and accountability in the IA’s Opinions and Annual Reports that omit reference to the side letters to ensure that those responsible can take effective action, including addressing failures within case allocation processes without requiring a costly independent review to highlight such failings; and (iii) the FOS’s misrepresentation of the IA’s review to ensure the impropriety is stopped and concerns over non-compliance with the FOS’s statutory duties are not ignored, including bias from an uncorrected error that favours the wrong party. If time permits, please, provide the data for 6 years or for as many years as time permits, however, the information re question 2 is more important.” The response

11. Before providing its response the Ombudsman asked the IA what information was held in relation to part 2 of the request. The IA’s response was: “I’m not really sure what is wanted or meant by ‘side letter’ – generally all feedback is provided in the Review. Further as the customer is aware we don’t hold data ’forever’ and so couldn’t comply with this request.”

12. In its response on 14 October 2024 the Ombudsman refused to provide the figures in part 1 under section 12 (exceeded the appropriate cost limit) and stated that it did not hold the information requested in part 2 of the request.

13. In her application for an internal review, Ms Lovesey said, in relation to part 2: … whilst I note your comment re part 2 of my request I see no valid reason for not seeking the information direct from the Independent Assessor (IA), as requested: For clarity, I am seeking clarification if/when [ repeats the exact wording of the part 2 of the request ]

14. In the same letter Ms Lovesey asked for the following confirmation: “I also request, please, that you confirm whether the IA still: (a) issues such side letters; (b) refrains from cross referencing the side letters in her Opinions and Annual reports; and (c) ignores the evidence that validates the FOS misrepresents the depth of the IA’s review to ensure that the concerns raised by consumers are not ignored and dismissed by Baroness Manzoor as “But this is a case where a complainant is essentially unhappy with the ombudsman’s independent and legitimate exercise of judgment.” If your next response fails to provide the requested information it will be taken that the IA still issues such side letters notifying of concerns excluded from her review without transparency and ignores the evidence that dictates the FOS has clearly advised such concerns can be escalated for independent review.”

15. The Ombudsman decided that if information within part 2 were held it would be likely to be held in one of the following locations: a. The electronic folder where records of the quarterly reviews with the IA Executive Team are held b. The IA’s annual reports c. Electronic correspondence sent by the IA Dame Gillian Guy, as well as the IA’s office shared mailbox

16. It searched those locations, as well as internal emails involving the IA for any documents or correspondence involving the following terms: “side letters” “Misrepresentation of the Independent Assessor’s Review” “Misrepresentation of my review” “Misrepresentation of the IA’s review”

17. The only result returned by the searches was one email sent by the IA to Ms Lovesey.

18. Following those searches the Ombudsman confirmed, in the outcome of the internal review dated 19 March 2025, that it did not hold any information in relation to part 2 of the request. The Decision Notice

19. In a decision notice dated 2 May 2025 the Commissioner determined that the Ombudsman did not hold any information within the scope of part 2 of the request.

20. He agreed with the Ombudsman’s interpretation of the request, i.e. that Ms Lovesey was asking for written information held by the Ombudsman concerning if or when the IA has ever notified the FOS executive team, Board or Oversight Committee about: “the practice of issuing side letters notifying of concerns excluded from her [The Independent Assessor’s] review” “the lack of transparency, integrity and accountability in the IA’s Opinions and Annual Reports that omit reference to the side letters” “the FOS’s misrepresentation of the IA’s review to ensure the impropriety is stopped”

21. The Commissioner set out the searches undertaken by the Ombudsman and noted the IA’s position that she did not know what ‘side letter’ referred to because outcomes are communicated to all parties.

22. The Commissioner said as follows at paragraph 28: “The complainant believe that the IA has used side letters and may still be doing so, to report issues to the FOS Board outside of the review and the process of doing this without any transparency is not compliant with FOS’ statutory duties. The complainant was seeking to establish if the IA still uses side letters and, if so, does not include reference to this in her annual report.”

23. The Commissioner said that the searches carried out were reasonable and proportionate. He said that no evidence pointed to the use of ‘side letters’ by the IA ‘whether in the form of a document titled as such or in the form of a communication providing outcomes not contained in her reviews’. He considered that the Ombudsman had provided clear and detailed arguments explaining how it reached its position. He concluded on the balance of probabilities that the Ombudsman did not hold the requested information. Notice of Appeal

24. The Ground of Appeal is, in essence, that the Decision Notice is wrong because the Commissioner has misunderstood what constitutes a side letter and the Commissioner and the Ombudsman should have sought clarification.

25. In particular Ms Lovesey states that she is surprised of the confusion in relation to the term ‘side letter’. She says that it ‘is considered a known term for a supplementary document utilised to clarify the main contract and in the case of the IA includes notification of concerns not subject to the promised full independent review’. She says that she has sent copies of such side letters to the Commissioner and resubmitted the correspondence to the IA.

26. The appellant also asks for the matter underlying the request to be brought to the attention of HM Treasury, the Ombudsman Board and the FCA Executive to take certain steps. She also asks the tribunal to require the Commissioner to take a more ‘flexible approach to rectifying verifiable errors’ without referral to the First-tier Tribunal. The Commissioner’s response

27. The main points of the Commissioner’s response are that the request should be read objectively and, on the balance of probabilities, having viewed searches and internal consultations conducted by the Ombudsman, the Ombudsman does not hold information within the scope of the request. Reply

28. The reply deals primarily with responding to an application to strike out the appeal. The appellant complains that she submitted copies of ‘side letters’ to the Commissioner following the decision notice and he refused to amend it. She says the search terms used would not produce the requested information. Legal framework

29. Section 1(1) FOIA provides: “Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case to have that information communicated to him.”

30. The scope of a request is determined objectively, in the light of all the surrounding circumstances. The question of whether information was held at the time of the request is determined on the balance of probabilities. The role of the tribunal

31. The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner. Issues

32. The issues for the tribunal to determine are: a. What is the scope of the request, objectively construed in the light of the surrounding circumstances at the time of the request? b. On the balance of probabilities did the Ombudsman hold any information within the scope of part 2 of the request? c. Did the Ombudsman comply with its duties to provide advice and assistance? Evidence and submissions

33. The tribunal read an open bundle and the appellant’s additional submissions included in the Certificate of Compliance. Discussion and conclusions

34. The question of whether the matter should be brought to the attention of HM Treasury, the Ombudsman Board and the FCA Executive is outside our jurisdiction, as is any failure buy the Commissioner to take a more ‘flexible approach to rectifying verifiable errors’ without referral to the First-tier Tribunal. Any flaws in the way the Commissioner conducted the investigation, by, for example, failing to ask for further information on the appellant’s position, are corrected by our full merits review.

35. The scope of a request is determined objectively in the light of the surrounding circumstances at the relevant time. The question is not whether the Ombudsman’s interpretation of the request was reasonable. However, when construing the request, the tribunal does not take account of information that was not available to the public authority at the time.

36. On the basis of the additional information now before the tribunal, including the specific example identified by Ms Lovesey, the tribunal is able to understand what Ms Lovesey meant by a ‘side letter’ in her request for information.

37. The tribunal understands Ms Lovesey to be using ‘side letter’ to describe an initial letter from the IA, or someone in her office, to a complainant, setting out the scope of the IA’s remit and explaining that certain parts of the complaint fall outside that remit and will not be included in the IA’s review.

38. That was not apparent to the tribunal until it had read all the information in the bundle. Some of the information before the tribunal was not available to the Ombudsman at the date of the request. In particular, Ms Lovesey had not, at the time, provided an example of what she meant by a ‘side letter’. Nor had she written the further submissions and explanations that the tribunal has before it.

39. The tribunal has considered the wording of the request objectively, without the benefit of the later clarification. The request uses the term ‘side letter’, which usually records a separate agreement or understanding between the parties to a contract, and which sits alongside the main contract. The request does not specify the addressee of the ‘side letters’. It does not say which parties are supposed to have reached an agreement or understanding that is recorded in those letters. It does not identify the main agreement or contract (or equivalent) that these side letters are sit alongside. The request says that the use of the ‘side letters’ shows impropriety and a lack of transparency.

40. Taking all that into account, we agree broadly with the Commissioner, that objectively construed, and without the benefit of the later clarification, and whatever Ms Lovesey’s intention, the natural reading of the request, viewed in the light of Ms Lovesey’s expressed concerns about transparency and impropriety, is that the reference to ‘side letters’ is a reference to internal letters or sent by the IA to the Ombudsman, with the intention of keeping the concerns/the Ombudsman’s failings set out in the letters private, by dealing with them outside of or alongside the normal IA process, thus keeping those identified concerns or failings out of documents made publicly available such as the IA’s Opinions and Annual Report.

41. Accordingly, the request, objectively construed was for any recorded information showing that the IA had: (i) notified the Ombudsman’s executive team, Board or the FCA Oversight Committee about the practice of issuing such letters, (ii) notified those bodies about ‘a lack of transparency, integrity or accountability in the IA’s opinions and annual reports’ as a result of the use of such letters, or (iii) notified those bodies about the Ombudsman’s misrepresentation of the IA’s review

42. It is not possible, in our view, to construe the request as referring to the type of letters that Ms Lovesey intended to refer to, without the later clarification and examples provided by Ms Lovesey. Given the usual meaning of the word ‘side letters’ and the references in the request to ‘impropriety’, a ‘lack of transparency and integrity’ and the focus on what has been formally ‘notified’ to various senior bodies, it is highly unlikely that the request refers to a standard and open part of the IA correspondence in the form of an initial letter to the complainant in which a case worker sets out the IA’s remit and identifies which parts of the complaint do and do not fall within that remit.

43. We now know that the practice of issuing ‘side letters’ in the sense set out in paragraph 40 above is not something asserted by Ms Lovesey. The IA has confirmed that the IA does not issue ‘side letters’. The Ombudsman carried out searches in appropriate places for documents containing the words ‘side letters’ or referring to misrepresentation of the IA’s review. In those circumstances, and in particular where no one is suggesting that such a practice exists, we conclude, on the balance of probabilities, that no information within the scope of the request, objectively construed, is held.

44. We appreciate that is a frustrating outcome for Ms Lovesey, but we have to determine the meaning of the request in the light of the information available at the time, and not in the light of clarification which, in this case, only became available after the decision notice and certainly was not in existence as the date of the request.

45. We have considered whether the Ombudsman ought to have provided advice and assistance by seeking clarification of the request. We note that Ms Lovesey took the opportunity to ‘clarify’ part 2 of the request in the internal review and used exactly the same wording. In our view, given that Ms Lovesey had already attempted to clarify the request, the request as formulated (looked at without the benefit of information provided subsequently) was sufficiently clear for the Ombudsman not to have to seek further clarification.

46. On that basis the appeal is dismissed. Alternative findings

47. In case we are wrong, it is the tribunal’s view in any event that it is highly unlikely that the Ombudsman holds the information that Ms Lovesey intended to request. In relation to (i) and (ii) it is normal and common practice for a body dealing with complaints, or its office, to send an initial scoping letter setting out what parts of the complaint do and do not fall within the decision maker’s remit. The Commissioner, for example, sends a similar letter to complainants. It is highly unlikely that the IA would have notified the Board or the executive or the FCA Oversight Committee that such letters were part of its practice, or to have raised concerns about any lack of transparency or integrity. In our view, there is no reason for them to do so. In relation to (iii) the Ombudsman carried out searches in appropriate places for any documents that contained the phrases ‘misrepresentation of the Independent Assessor’s Review’ ‘misrepresentation of my review’ and ‘misrepresentation of the IA’s review’ and found no relevant documents other than a letter to Ms Lovesey. On that basis, even if we had construed the request in the way put forward by Ms Lovesey, we would have concluded that no information was held on the balance of probabilities. Signed Sophie Buckley Date: 8 January 2026 Judge of the First-tier Tribunal