Guide section
The proportionality principle
Even where some wrongdoing occurred, a CIFAS marker may be disproportionate to the circumstances. The proportionality test asks whether the response (a fraud marker on a national database for six years) is proportionate to the underlying conduct.
The Financial Ombudsman applies proportionality when assessing CIFAS marker complaints. Markers have been removed in cases where the underlying conduct, while concerning, did not justify the severe consequences of a fraud marker.
Guide section
Factors that affect proportionality
- The severity of the underlying conduct
- Whether the conduct was a one-off or a pattern
- The impact of the marker on the individual's life
- Whether the individual was vulnerable, young, or inexperienced
- Whether there were mitigating circumstances
- Whether a less severe response would have been appropriate
- The time that has passed since the conduct
Guide section
When proportionality arguments succeed
Proportionality arguments are particularly effective where the conduct was minor, the individual was vulnerable, or the consequences of the marker are severe relative to the underlying issue. For example, a marker placed on a young person who unwittingly received one suspicious payment may be disproportionate when it prevents all access to banking for six years.
Guide section
How the Financial Ombudsman applies proportionality
Published Financial Ombudsman decisions show that the ombudsman applies a fairness test that goes beyond strict legal compliance. Even where some wrongdoing occurred, the FOS can find that a marker was disproportionate given the severity of the conduct, the impact on the individual, and the vulnerability or circumstances involved.
Proportionality arguments are particularly effective when combined with evidence of the harm caused. The more clearly you can document the practical consequences of the marker, the more weight a proportionality argument carries.
Document the impact
Keep records of every declined application, account closure, lost opportunity, or instance of distress caused by the marker. This evidence supports both the proportionality argument and any compensation claim.