27. Those subsections make it clear that the Ombudsman both has jurisdiction to uphold
on grounds involving what I might describe as black letter law issues i.e. contrary to law, or based on a mistake of law
but also to uphold on grounds where there has been no breach of law at all, including quite strikingly upholding a complaint where the conduct is in accordance with law, but the Ombudsman holds that the application of that law was detrimental to the complainant.
The breadth of the Ombudsman’s jurisdiction under s.60(2) cannot be underestimated:
he or she is effectively given a jurisdiction to override the law in certain situations, in the sense that although a complainant may have no remedy in law, including under the law of contract, nonetheless they can have their complaint upheld.
In other words, a financial service provider can act perfectly lawfully but nonetheless find that a complaint is upheld against it carrying with it an obligation to make specified redress.
38. In Utmost Paneurope, the FSPO upheld a complaint about significant illness cover on the grounds at s.60(2)(b) and (g). Simons J. observed in respect of the jurisdiction of the Ombudsman as follows:
“35. The Ombudsman appears to enjoy what might be described as a hybrid jurisdiction, whereby he may adjudicate not only on contractual disputes, e.g. where a complainant alleges that the conduct of a financial service provider in refusing to honour a claim is in breach of contract,
but may also make determinations and direct remedies in respect of conduct which, while not contrary to law, is found by the Ombudsman to be “unreasonable” or “unjust”.”