posted 31st July 2026
Never agree with an investigator—or accept a final decision—until you know what evidence was used.
Most consumers who complain to the Financial Ombudsman Service will never read DISP 3.5.9 of the FCA Handbook. They should not have to. They approach FOS because it is presented as a free and accessible alternative to litigation: a place where an ordinary person can have a financial dispute examined without instructing lawyers or navigating the courts. They are entitled to assume that, before anybody tells them they have lost, they will have been shown the substance of the evidence used against them. That assumption may not always be safe.
The golden rule for every FOS complainant should therefore be simple. Before agreeing with an investigator’s view, and again before accepting an ombudsman’s final decision, ask whether FOS has considered any evidence, information, records or submissions that have not been disclosed to you in full. If it has, ask what was withheld, why it was withheld, what edited version, summary or description was provided instead, and whether the undisclosed material influenced the outcome.
This is not tactical cleverness. It follows directly from the rules governing the process. DISP 3.5.9 permits the Ombudsman to accept information in confidence where appropriate, “so that only an edited version, summary or description is disclosed to the other party”. DISP 3.5.4 separately requires both parties to be given an opportunity to make representations and requires a provisional assessment setting out reasons. Confidentiality is therefore permitted, but the rules contemplate that the other party will still receive an intelligible account of the material being used.
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There may be legitimate reasons not to release an original document. Third-party personal information, security material and genuinely confidential records may require protection. But redaction and concealment are not synonyms. A person cannot correct an inaccurate note, challenge an unsupported assertion or explain missing context when they do not know that the allegation exists. The right to make representations becomes largely theatrical if the evidential proposition requiring an answer remains behind the curtain. The danger begins at investigator level. FOS explains publicly that, if both the consumer and the business agree with the investigator’s answer, the complaint is settled. It says most cases are resolved in this way. If either side disagrees, the matter can be referred to an ombudsman for a final decision. A consumer who accepts the investigator’s view may therefore close the complaint without ever asking whether the conclusion rested upon information supplied privately by the business.
Why would an ordinary consumer know to ask? FOS users are not regulatory lawyers. They are unlikely to know the wording of DISP 3.5.9, still less to recognise that a bland reference to “the information provided by the business” may include material they have never seen. The procedural protection sits inside the FCA Handbook, while the consumer may reasonably assume that the evidence discussed in the investigator’s view is all the evidence that mattered. The stakes become considerably greater at final-decision stage. DISP 3.6.6 requires the ombudsman to provide both parties with a signed written determination giving reasons. If the consumer accepts it within the specified period, the determination becomes final and binding on both parties.
FOS also warns that, after acceptance, the consumer is unlikely to be able to pursue the business in court for further compensation concerning the same complaint. That is not a routine administrative choice. The consumer may be surrendering the opportunity to litigate. Before doing so, they should be told expressly whether confidential evidence was relied upon, what category of material was withheld, why complete disclosure was refused, what substitute disclosure was supplied and whether the material was decisive. A person cannot make a properly informed procedural choice when a material feature of the decision-making process remains undisclosed.
Every complainant should therefore send a written request before agreeing with an investigator or accepting a final determination:
"Before I respond, please confirm whether you have considered any evidence, information, records, submissions or other material that has not been disclosed to me in full. If so, please identify its nature, explain why it has been withheld, provide the edited version, summary or description contemplated by DISP 3.5.9, confirm whether it influenced your conclusions, and allow me a reasonable opportunity to respond."
The request should be answered before the acceptance deadline, not afterwards, when the determination may already have become binding.
The troubling question is why consumers need to formulate this request themselves. FOS could answer it automatically. Every investigator’s view and every final decision could contain a short declaration stating either that no undisclosed evidence was relied upon, or identifying the protected category of material, the reason for withholding it and the substitute disclosure provided. That would preserve legitimate confidentiality while ensuring consumers know whether the visible case file is the entire evidential case. It would also create an auditable record. FOS publishes extensive data covering complaint volumes, financial products and uphold rates. Its current annual dataset records 214,600 new complaints during 2025/26 and an overall uphold rate of 30 per cent.
Yet that published dataset does not identify how many cases involved confidential evidence, how often an edited version or summary was supplied, how many consumers challenged non-disclosure, or how often undisclosed evidence materially affected an outcome. Without those figures, the FCA, Parliament, consumer organisations and the public cannot know whether the practice is exceptional, inconsistently applied or routine. Nor can they know whether every investigator and ombudsman is identifying, recording and applying DISP 3.5.9 consistently. Either the information is being recorded and could be published in anonymised form, or the system is not measuring its own use of confidential evidence. Neither possibility supports complacency.
The FCA should be particularly uncomfortable with that uncertainty. Auditing whether FOS applies DISP 3.5.9 consistently would not interfere with the merits of individual decisions. It would test whether consumers are receiving the procedural protection contained within the FCA’s own Handbook and whether they are being given sufficient information before agreeing to an outcome that may conclude their complaint permanently.
The real scandal would not merely be that some consumers lost because of evidence they never saw. It would be that they agreed with an investigator, or accepted a binding final decision, without knowing that there was anything they needed to ask. Until FOS makes that disclosure automatic, every consumer should remember the golden rule: do not accept the answer until you know what evidence produced it.
