David Clifton: Licensing Expert – Alternative Dispute Resolution (ADR)…Change is on the way

Last month the Gambling Commission announced the results of its review of complaints processes in the gambling industry, carried out one year after the introduction of the Alternative Dispute Resolution (ADR) scheme.

As matters stand, ADR providers can look only at disputes about the outcome of a gambling transaction, rather than the way a gambling business is being run, which is instead a matter for the Commission as a regulator of the gambling industry. However, a downside for the consumer is that:

• the Commission does not provide a complaints service and will not investigate individual complaints and
• where a ruling on the outcome of a transactional dispute may depend on the outcome of an investigation into an operator by the Commission or by another body, it is difficult for ADR providers to adjudicate.

None of this prevents the consumer from taking their complaint to court whether they are dissatisfied with the outcome of an ADR provider’s decision, or for any other reason, but that will usually be a costly exercise, something that the ADR process is supposed to prevent.

The Commission says that its review has:

• shown that currently, “the complaints system in the gambling industry is not working for consumers, who have found it difficult to access, time-consuming to use, and they question whether it is independent and transparent” and
• identified “a clear need for both gambling businesses and ADR providers to improve the way they handle consumer disputes”.

The Commission certainly has the power to bring about such improvements because it is not only able to impose more rigorous requirements on operators pursuant to the LCCP but it is also responsible for approving ADR providers pursuant to a process that requires providers to meet, and to continue to meet, requirements of impartiality, fairness and independence.

Currently, there are eleven such approvals, although the Commission reports that in the year to 30 September 2016:

• IBAS dealt with 93.6% of all disputes in the British gambling sector,
• eCOGRA dealt with second largest number of disputes with 5.2% of the total,
• the remaining 1.2% of disputes were split over a further six ADR providers and
• three providers did not receive any disputes between 1 October 2015 and 30 September 2016.

This review has been conducted against a backdrop of concerns on the part of the Commission about what it perceives to be an increasing lack of public trust in gambling operators. It cites recent survey data showing that 61% of respondents who gambled during 2007 thought that gambling was fair and could be trusted, whereas by 2016, only 38% of respondents thought this to be the case.

In addition, the Commission says that last year it received nearly 77,000 contacts from members of the public, representing an increase of over 300% on the last two years, as a result of which it has concluded that existing complaints arrangements in the sector are not meeting consumer needs. In addition, it has concerns that the number of disputes recorded:

• by non-remote operators has increased from 4,548 in 2014 to 11,398 in 2016 and
• by remote operators has increased from 10,635 in 2015 to 12,100 in 2016.

The Commission wants gambling operators to take complaints more seriously by operating complaints procedures that are “genuinely accessible and give consumers trust that their concerns have been listened to and acted upon in a timely way”. It wants ADR providers to consider whether they are doing enough to help raise standards in this industry and to ask themselves whether (a) they could do more to drive change by sharing learning from complaints and (b) their processes and contractual arrangements with operators allow them to consider complaints fully, independently and transparently.

For its own part, the Commission intends to put in place rules and standards that support and, where necessary, require more comprehensive approaches to complaints handling by both operators and ADR providers.

We can expect that this will include the following:

• in order to make it easier for consumers to make complaints, introduction during the middle of this year of “Resolver”, an online tool that supports consumers to raise complaints and is independent from gambling businesses; already in use in a number of sectors, including energy suppliers (for example, British Gas, EDF Energy), public services (for example, HM Passport Office, DVLA) and others, it explains the consumer’s rights in simple terms, helps the consumer to prepare an email using a template, allows the consumer to record all communications in the same place, creates a case file for the consumer and tells the consumer when to escalate their case to the next stage,
• subject to consultation, improved instructions to operators how and when to send correct data to the Commission and, possibly, a new requirement for operators to provide more information in their complaints policies and to make them more visible,
• a possible reduction or limit in the number of approved ADR providers, coupled with a framework of requirements including standards around customer service, decision making, and supporting the gambling industry, and
• a review of governance arrangements intended to (a) make the role of an ADR provider clearer, (b) improve consistency, and (c) help to reassure consumers that a provider is independent of the gambling business.

The Commission’s review document (that can be read in its entirety on our website via the link at http://cliftondavies.com/review-complaints-) also reveals the following information that is directly relevant for betting operators.

1. The largest number of complaints made in retail gambling are in the betting sector, which the Commission says is not surprising because there are more betting shops than other licensed gambling premises – for example, there are 8,709 betting shops compared with 575 bingo premises and 148 casinos in Great Britain. However, the Commission has concerns about the accuracy of the complaints data that operators are reporting. It states that data provided by betting shops indicates that on average only 3.3 complaints per shop went unresolved at the first stage of their complaints resolution process in the whole of 2016 – a figure that it considers to be “unrealistically low”. It says that figures are similarly low for the number of disputes recorded, and the number of disputes referred to ADR providers, which it believes may indicate that operators are not reporting or recording the information properly rather than that there are few unresolved complaints.

2. The online gambling sector recorded 60,500 complaints in 2016 across 791 licensed activities or 76.5 complaints per activity over the year. The Commission suggests that this larger figure may indicate that it is easier to recognise and record complaints made online than in retail premises where some complaints may be dealt with in the course of general customer service. However, it maintains that the figure is still lower than it would expect.

3. The Commission also points out the most prolific issues identified by IBAS were:

• terms of bonus or promotional offer
• disputed bet instructions, or criteria to settle bets/gambling transactions
• disputed prices of bets
• customer identity checks and
• late bets.

The Commission intends to work closely with gambling operators, ADR providers, trade associations and consumers and their representatives to make improvements to the existing ADR system and, come what may, change is clearly on the way.

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David Clifton – Director – Clifton Davies Consultancy Limited