AVIVA LIFE & PENSIONS (UK) LTD, R (ON THE APPLICATION OF) V MCCULLOCH AND ANOTHER

[2017] EWHC 352 (Admin), Administrative Court, Mr Justice Jay, 27 February 2017

Insurance (life) - Financial Ombudsman Service - Duties of FOS - Judicial review - Financial Services and Markets Act 2000, section 228 - Consumer Insurance (Disclosure and Representations) Act 2012, section 3

Under section 228(2) of the Financial Services and Markets Act 2000, "A complaint is to be determined with reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case". Rule DISP 3.6.4R of the Financial Conduct Authority's Handbook provides that: "In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account: relevant (a) laws and regulations; (b) regulators' rules, guidance and standards; (c) codes of practice; and (d) (where appropriate) what he considers to have been good industry practice at the relevant time". In the present case the Ombudsman held, on a complaint by the McCullochs, that Aviva?s decision to accept the surrender of a joint life policy was fair and reasonable, but that Aviva's subsequent decision to avoid a single life policy for misrepresentation should be overturned. On a judicial review application by Aviva, the Ombudsman's decision was quashed on the ground that she had not give adequate reasons.