1. Naomi Creutzfeldt / Senior Lecturer in Law University of Westminster
Consumer ombudsmen and access to justice for vulnerable consumers - a comparative perspective
Naomi Creutzfeldt / Senior Lecturer in Law
University of Westminster

2. Outline Introduction ADR in the EU The ombudsman model
Research project on ombudsmen
Research project on vulnerable consumers & energy poverty
Conclusions

3. background to consumer ADR in the EU
Consumer complaints about goods and services
Courts are overrun and take too long, unpredictable in cost and outcome
Consumer ADR directive (2013/11/EU)
ODR regulation (524/2013)

4. Consumer ADR
ADR offers a quicker and cheaper alternative to the court system, when disputes cannot be resolved between the consumer and the business directly. The greater availability of ADR will strengthen consumer protection and improve consumer confidence.

5. The growing importance of ADR and the lack of users experience
Claim to fame: easily accessible, user-friendly, transparent, … access to justice.
Empirical data?
Decision-acceptance and trust...?
Who uses ADR?
What motivates us to accept a decision?
What do people want?

6. The ombudsman model Public sector origins in Sweden 1809
Developed into the private sector
Developed further into companies, universities, hospitals, …
What is the aim of the institution?
What type of dispute resolution does it provide?
How is it situated within the national legal system?

7. … Does ADR provide access to justice? Who uses ADR?
Who does not use ADR?
Why?

8. Research project
Trusting the middle-man: impact and legitiamcy of ombuds in Europe ( )
[project reports]

9. Research questions
What explains users’ perceptions of fairness and trust vis-à-vis ombuds institutions?
How do cultural frameworks influence citizens use of ombuds?

10. A bit of theory … Measuring legitimacy and fairness perceptions:
Ombudsmen: it is all about the outcome, if consumers don’t get what they want they will not trust the ombudsman process.

11. Procedural justice and ombuds
Procedurally
just / fair
Outcome acceptance and compliance
Legitimacy and trust
Voice – neutrality – respect - trustworthiness

12. methodology
Consumer satisfaction survey sent out by 14 ombudsmen to their customers
by post
by - online link
September 2014 – March/May 2015
France sample 413
German sample 1,442
UK sample 1,025
Some highlights from the data

13. examples of procedural justice

14. Financial sector Confidence in the ombuds
Does the ombuds act according to the law
How fair are the procedures
Was the outcome in your favour
Germany 74%
UK 63%
Germany 79%
UK 73%
Germany 67%
UK 61%
Germany 40 %
UK 51 %

15. Energy sector Confidence in the ombuds
Does the ombuds act according to the law
How fair are the procedures
Was the outcome in your favour
Germany 78%
France 71%
Germany 83%
France 85%
Germany 81%
France 91%
Germany 67%
France 51%

16. What does this mean? The process matters, not only the outcome.
ADR providers have to work on providing better engagement with their customers early on to manage expectations.

17. Importance in the decision to complain
UK sample: The most important factors were getting an apology and someone to listen.
German sample: The most important factors were lawfulness and financial compensation.
French sample:
Resolve the complaint: 28%
Someone to listen 26%
Get an apology: 44,5%
Money back 29,7%
Business practice 30,1%
Prevent others from having the same issue 22%
Being treated with respect 24%
Impartial view 28%
My rights 26%

18. Results
The story the German data tells is that of a deeply rooted instinct from within a civil law system towards procedures: a hierarchical view of state authority. This notion translates into the acceptance of decisions that are handed down by authorities and a focus on the outcome. The common law tradition, on the other hand, with a populist democratic understanding of the state and its authorities, encourages people to put a greater emphasis onto procedural fairness and the desire to make systems and processes better for the wider public.

19. Cultural narratives
Legalistic
Institutional set-up (staff)
Not-legalistic
Our relationship with authority (the state) is mediated through surrounding legal traditions, amongst other things. This influences our expectations of institutions and their procedures delivering dispute resolution.
Germany: respondents are more likely to accept the decision even if it is not in their favour follow the authoritative set up of the ombuds institution and the fact that a judge or a lawyer is trusted to provide fair outcomes
UK:

20. Who uses an ombudsman? In my sample: Male Middle aged Educated
(white British)

21. What explains the different expectations?
Legal culture
legal socialization
Using the formal legal system as a reference point
The different ombuds-styles
Access to justice for all?

22. ESRC ‘justenergy’ project https://esrcjustenergy.wordpress.com/
Investigating access to justice for vulnerable and energy poor consumers in the European energy market

23. The project 3 year project Funded by the UK’s ESRC
Collaboration between Westminster and Glasgow
Supported by NEON
Naomi Creutzfeldt & Chris Gill

24. Overview
Has the shift towards alternative dispute resolution (ADR) resulted in more accessible justice for vulnerable and energy poor consumers?
ADR has potential to help, but is it being used by those who need it most?
How does broader consumer protection context (regulation, advice, enforcement) help or hinder access to justice?

25. The energy sector is an important site at which access to justice, ADR and vulnerability intersects.
Using the spatial and temporal dynamics of vulnerability as a lens through which to understand energy poverty allows us to ‘recognizes that households described as energy poor may exit the condition in the future by a change in some of their circumstances, and vice versa. (Thompson)

26. A lack of a single definition of vulnerability or a single unified strategy to address consumer vulnerability does not necessarily reflect negatively on the consumer protection framework across the Member States. Consumer vulnerability is a complex and dynamic concept. Hence, a more case-by-case sector-specific approach could be of value.

27. Capturing a multidimensional phenomenon
Economic – built environment – social & behavioral factors = dynamics of household consumption.
Transient – permanent – multi-layered
Capturing the full complexity
Health – housing – social policy …

28. Measures and indicators…
Vulnerability drivers
Vulnerability measures
Vulnerability dimensions
Drivers for energy poverty ….
Low income
Poor housing efficiency
High energy costs
Intersection: debt / heatlh / housing [social policy]

29. Theories to consider ‘Triad’ (Boardman 1991)
[low income / high energy prices / poor household energy efficiency]
The energy cultures framework (Stephenson et al 2015)
Integrative approach to bridge the gap between individual and structural factors

30. The research itself 6 countries / NEON members
Desk research and in-depth interviews with key informants – mapping approaches in key countries
Survey and telephone interviews with consumers who have used ADR – understanding how users experience ADR process
Interviews with ADR bodies, regulators, consumer representatives, NGOs, etc.

31. Intended outcomes
Help policymakers tackle vulnerability and energy poverty through access to justice
Identify challenges in defining and targeting vulnerable consumers
Understand the role of key stakeholders in challenging vulnerability
Help ADR bodies develop new approaches to tackle vulnerability

32. To keep up to date with our project:
To keep up to date with our project: