When a GAP Complaint Is Only Partially Upheld Before the Key Evidence Has Even Been Obtained

Some complaint outcomes are disappointing. Others are far more concerning because they expose an investigation that reaches a conclusion before the most important facts were known.

This is one of those cases.

We recently dealt with a GAP insurance complaint against Birchwood Garages (more on them later). The policy cost our client £424, and the complaint was partially upheld by the Financial Ombudsman Service (FOS), despite the investigator not having obtained the core evidence needed to assess the fairness, value and suitability of the sale.

That alone is troubling, but what followed was worse.

As a result of the serious concerns about the quality of the investigation, and the investigator’s prior investigations, we submitted a Data Subject Access Request to the Financial Ombudsman Service. The disclosure we received confirmed what we had suspected… the investigation was fundamentally flawed and completely inadequate.

The complaint was straightforward

Our client complained that a GAP insurance policy had been mis-sold.

The complaint raised a number of important issues that required a substantive evidenced response, including but not limited to the chain commission which affected the fair value of the product.

These were not peripheral issues. They went to the heart of whether the product had been fairly sold.

The wider regulatory background also matters. The FCA intervened in the GAP insurance market because of serious concerns about fair value, low claims ratios and excessive commission within distribution chains. That intervention should have placed all parties on notice that commission, value and distribution-chain remuneration were central issues in any GAP mis-sale complaint.

Despite that, the investigation did not obtain the evidence needed to properly answer those questions before reaching its partial uphold position.

Birchwood Garages ignored repeated FOS requests

The conduct of Birchwood Garages during the FOS investigation was, in our view, disgraceful.

The DSAR disclosure showed that FOS repeatedly requested the complaint file, sales file and commission information from Birchwood. Those requests were sent to Birchwood on:

• 30 September 2024;
• 1 October 2024;
• 18 October 2024;
• 22 November 2024;
• 27 February 2025;
• 18 June 2025;
• 29 July 2025;
• 31 October 2025;
• 26 February 2026; and
• 10 March 2026.

Despite those repeated requests, Birchwood failed to provide the evidence required, seemingly choosing to simply ignore FOS.

That should have been treated as a serious issue in itself.

A regulated firm should not be able to frustrate an Ombudsman investigation by ignoring repeated requests for the very documents needed to determine the complaint. A business that refuses or fails to provide its complaint file and commission details should not be allowed to benefit from the evidential uncertainty it has created.

Where a firm fails to engage, the fair response is either to use the powers available to obtain the evidence or to draw strong adverse inferences. What should not happen is that the consumer is left with an inadequate outcome by way of a partial uphold, simply because the respondent has chosen not to cooperate.

The investigator reached a view without the salient facts

The FOS investigator issued his view on 18th March 2026.

At that point, the full chain remuneration picture had not been obtained. In fact, the investigator had failed to obtain any details of the chain commission and remuneration whatsoever.

That is a fundamentally flawed investigation.

This complaint was not simply about whether Birchwood received some commission. It was about the fairness and value of the GAP product as sold to our client for £424. To assess that properly, FOS needed to know:

• what Birchwood received;
• what Ingeni, acting as the administrator received;
• what Acasta, the underwriter, received;
• what the net risk premium was;
• what administrator fees were taken;
• whether there were profit-share arrangements;
• whether there were overrides, bonuses or volume payments;
• whether the broker had discretion or incentives affecting the sale; and
• how much of the customer’s £424 actually paid for meaningful insurance cover.

Those questions were simply not answered before the complaint was partially upheld on the basis of information the investigator did not have.

The DSAR disclosure confirmed our concerns

We submitted a DSAR because we were deeply concerned about both the investigator and the investigation, that had not gone far enough.

The disclosure confirmed those concerns.

It showed that FOS had repeatedly attempted to obtain information from Birchwood and had been ignored. It showed that the investigator issued a view without the key remuneration evidence. It showed that the investigation had not obtained the full chain commission picture. It showed the investigator had not attempted to obtain the chain commission remuneration, instead focusing only on what Birchwood received. It also showed that, after the view had been issued, Ingeni confirmed that the broker/dealer commission was 66% of the price paid by the consumer.

That figure is grotesque.

The policy cost £424. A 66% broker/dealer commission means approximately £279.84 was paid to the broker/dealer alone.

That is before considering any remuneration, fee, margin, profit-share, override or other payment received by the administrator, underwriter or any other party in the distribution chain.

In other words, almost two-thirds of the consumer’s total price went to the selling broker/dealer before the rest of the chain is even considered.

This is precisely the kind of evidence that should have been obtained before any view was issued.

The 66% commission figure was not disclosed to us when it was later provided

Even more concerning is what happened once Ingeni provided the 66% commission figure.

By that point, the investigator had already issued his flawed view, which has been subsequently appealed. The 66% commission evidence was plainly material. It went directly to the fairness of the sale, the value of the product, the conflict of interest, and whether the consumer had been able to make an informed decision.

Yet the 66% commission figure was not disclosed to us at the time it was received.

That is completely unacceptable, and arguably withheld to protect the position of FOS and the investigator.

If material evidence is received after a view has been issued, especially evidence that goes to the heart of the complaint, it should be disclosed to the parties and the investigator should reconsider the outcome. The consumer and their representative should not have to submit a DSAR to discover that a critical commission figure had later been provided.

This is not how a transparent or fair investigatory process should operate.

A 66% broker commission is not a minor issue

No proper investigation could treat a 66% broker/dealer commission as incidental.

It raises obvious questions:

• Was the product recommended because it was suitable, or because it was highly profitable?
• Was the customer told, in any meaningful way, that two-thirds of the policy cost would be paid to the seller?
• Could the customer make an informed decision about value without knowing that level of remuneration?
• What proportion of the remaining premium actually paid for insurance risk?
• What did the administrator receive?
• What did the underwriter receive?
• Was the total chain remuneration so high that the product was poor value from the outset?

These questions are central to any fair assessment of a GAP sale.

They are especially important where the FCA has already intervened in the GAP market because of concerns about poor value and excessive commission.

The investigation focused too narrowly on the broker

A further concern is that the investigation focused on what the dealership or broker received, rather than the full chain remuneration.

That is not good enough.

In GAP insurance, the distribution chain matters. The consumer pays one price. That price may then be divided between the seller, administrator, underwriter and possibly other parties. If the investigation only identifies what the broker received, it still does not answer whether the overall product represented fair value.

A 66% broker/dealer commission is already grotesque. But without the rest of the chain remuneration, FOS still does not know how much of the £424 was actually used to provide insurance cover.

That missing information is not a technicality. It is the heart of the complaint.

Birchwood’s conduct should and will be reported to the FCA

Birchwood’s conduct should not be brushed aside.

The dealership ignored repeated attempts by FOS to obtain the complaint file and commission details. It failed to provide the evidence needed to assess the sale. It forced the investigation to proceed without the core documents and remuneration information that should have been readily available.

That is a huge regulatory concern, and raises concerns about the general conduct of Birchwood.

Regulated firms are expected to engage properly with complaints. They are expected to cooperate with the Ombudsman Service. They are expected to retain and provide records relevant to the sale of regulated financial products. Where a firm repeatedly fails to do so, that should be escalated.

We therefore expect confirmation that Birchwood’s conduct has been reported to the FCA by FOS, as we will certainly be reporting it.

The partial uphold outcome is unsafe

The partial uphold outcome cannot safely stand.

It was reached before the investigator had obtained the full remuneration evidence. It was reached without the full chain commission picture. It was reached despite Birchwood repeatedly ignoring FOS requests. It was reached before Ingeni later confirmed that the broker/dealer commission was 66%.

The outcome was therefore based on an incomplete evidential foundation.

That matters because the evidence later obtained was not neutral. It was highly material and highly damaging to the fairness of the sale.

A 66% broker/dealer commission is powerful evidence of a conflicted sale and poor value. It supports the argument that the customer was not given a meaningful opportunity to understand the true economics of the product. It also supports the argument that the sale was driven by remuneration rather than customer need, and that is why the partial uphold has been appealed by us.

The fair outcome

The fair outcome is not a partial uphold based on incomplete evidence.

The fair outcome is:

• a full refund of the £424 GAP premium;
• 8% simple statutory interest;
• additional compensation for distress, inconvenience and avoidable delay;
• a finding that Birchwood failed to cooperate with the investigation;
• proper consideration of adverse inferences arising from Birchwood’s failure to disclose; and
• confirmation that Birchwood’s conduct has been referred to the FCA.

Anything less risks rewarding non-disclosure and poor cooperation.

Why this matters beyond one complaint

This case raises a much wider concern.

How many complaints have been partially upheld, rejected, or under-compensated because investigators did not obtain the full picture?

How many consumers have been told their complaint has been fairly considered when the most important evidence was never obtained?

How many representatives would never discover the truth unless they submitted a DSAR?

That should concern everyone.

The Ombudsman Service exists to resolve complaints fairly and impartially. But fairness requires evidence. It requires transparency. It requires investigators to obtain the salient facts before reaching a view. It requires firms that ignore repeated requests to face consequences.

In this case, the investigation did not obtain the salient facts before reaching its partial uphold position.

And it should never have taken a DSAR to prove that.