Jacinta De Paor v The Financial Services Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 20 December 2011
• Neutral Citation: [2011] IEHC 483
• Court: High Court
• Date: 20 December 2011

[2011] IEHC 483

THE HIGH COURT

[No. 88 MCA/2011]

De Paor v Financial Services Ombudsman & Quinn Healthcare

IN THE MATTER OF AN APPEAL PURSUANT TO SECTIONS 57C L OF THE CENTRAL BANK ACT 1942 (AS INSERTED BY SECTION 16 OF THE CENTRAL BANK AND FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004)

BETWEEN

JACINTA DE PAOR

APPELLANT

AND

THE FINANCIAL SERVICES OMBUDSMAN

RESPONDENT

AND

QUINN HEALTHCARE

NOTICE PARTY

CENTRAL BANK ACT 1942 S57CM(1)

CENTRAL BANK ACT 1942 S57CM(2)

CENTRAL BANK ACT 1942 S57BK(4)

ULSTER BANK INVESTMENT FUNDS LTD & FINANCIAL SERVICES OMBUDSMAN UNREP FINNEGAN 1.11.2006 2006/56/11976 2006 IEHC 323

CENTRAL BANK ACT 1942 S57CL

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 S16

MOLLOY v FINANCIAL SERVICES OMBUDSMAN UNREP MACMENAMIN 15.4.2011 (EX TEMPORE)

RYAN v FINANCIAL SERVICES OMBUDSMAN UNREP MACMENAMIN 23.9.2011 (EX TEMPORE)

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

HAYES v FINANCIAL SERVICES OMBUDSMAN UNREP MACMENAMIN 3.11.2008 (EX TEMPORE)

SQUARE CAPITAL LTD v FINANCIAL SERVICES OMBUDSMAN 2010 2 IR 514 2009/53/13449 2009 IEHC 407

CENTRAL BANK ACT 1942 S57BB

Abstract:

Consumer law - Financial Services - Compensation - Financial Services Ombudsman - Health Insurance - Denial of cover - Damages for distress - Whether decision regarding amount of compensation flawed - Financial Services Authority of Ireland Act, 2004.

Facts The appellant had joined a health-care scheme operated by Quinn Healthcare (the company). Subsequently she make an inquiry about claiming for treatment and contended that she was informed that if she transferred to a different plan she would covered in respect of a particular form of treatment. Thereafter she was informed that the company would not cover her for the treatments required (radiation or chemotherapy) as her condition was considered to be a pre-existing illness and a two-year waiting period applied. A dispute arose and the issue was referred to the Financial Services Ombudsman (respondent). Ultimately the company admitted that information that had been provided to her was incorrect and agreed to pay all outstanding claims for medical treatment. A sum of €850 was also awarded by the respondent to the appellant for the distress and inconvenience involved. The appellant contended the sum was not sufficient, having regard to the negligent misstatements made by the company which had caused her additional and unnecessary distress to the appellant at a time when she was vulnerable and worried on account of her ill health.

Held by McGovern J in rejecting the claim. It was not the function of the court to place itself in the shoes of the respondent. The test was whether the decision was vitiated by a serious error or series of such errors. The appellant had clearly been given misinformation, but had she been given the correct information, she would not have been entitled to have all her treatment covered. The respondent had taken all the relevant matters into account and the findings covered all the issues that had arisen in the dispute.

Reporter: R.F.

1 1. This matter comes before the court by way of a notice of motion seeking an order pursuant to s. 57 CM(1) and (2) of the Financial Services Authority of Ireland Act 2004, affirming the finding of the Financial Services Ombudsman made in relation to the appellant on 24 ^th February, 2011, but modifying that portion of the finding relating to quantum of compensation payable by the financial services provider to the complainant.

2 2. The facts are not in dispute. In October 2007, the appellant joined Quinn Healthcare's (the Provider) medical expenses insurance scheme, taking out a Personal Care Plan for herself and her son. In August 2008, she was diagnosed with breast cancer and underwent surgery for this condition in September and October 2008. She contacted the Provider by telephone in October 2008 following surgery, to enquire about cover for her further treatment, and in particular, a course of radiation treatment at the Mater Private Hospital. She was advised by the Provider that this treatment would not be covered under her Personal Care Plan, but that if she transferred to a Family Care Plan for a slightly higher premium, she would be covered for the specific form of radiation required. On the basis of this advice, the appellant agreed to change her policy to a Family Care Plan and proceeded with her medical treatment plan on the understanding that she would be covered for the radiation treatment. It subsequently transpired that she would require chemotherapy before the radiation treatment and she rang the Provider in January 2009 to notify them of the change. She was informed by the Provider that she was not covered for either radiation or chemotherapy as her cancer was considered to be a pre-existing illness and her Family Care Plan had a two-year waiting period before she would be entitled to make a claim on it. The Provider ultimately agreed to cover her for eight sessions of chemotherapy but refused to cover her for radiation treatment.

3 3. The appellant complained that by failing to honour the assurances given to her and refusing to cover her for radiation treatment, and classifying her condition as pre-existing, the Provider caused her inordinate stress and worry in relation to payments for various elements of her ongoing cancer treatment and forced her to suspend further treatments required (such as bone density scans, MRI and CT scans and ECGs) pending a resolution of the dispute which she referred to the Financial Services Ombudsman in April 2010.

4 4. The Provider acknowledged that the appellant was incorrectly advised during a telephone call with one of its staff on 13 ^th October, 2008, in relation to benefit in the Mater Private Hospital and that she should have been told that there was a waiting period of two years which would apply to the increased benefit available under the Family Care Plan following the change of scheme. The Provider also accepts that one of its staff told the appellant in January 2009 that she would be covered for chemotherapy and radiotherapy in the Mater Private Hospital, but that a shortfall and an in-patient excess would apply. The Provider acknowledged that this information was incorrect, as a two-year upgrade waiting period should have applied to the policy.

5 5. When the Provider received claims from the Mater Private Hospital, they were rejected. The Provider contacted the appellant on 3 ^rd February, 2009, to explain that she had been given mistaken information, but on that occasion, agreed to cover the claim made by the Mater Private...