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Consumer Rights.

4 March 2021

There's an unfair term in my insurance policy, can I challenge it?

When you take out an insurance policy, you agree to be bound by the terms and conditions. But standard clauses may be challenged if they're considered to be unfair.
W
Which?Editorial team

Interpretation of insurance clauses

Often it's the interpretation of a clause which is crucial. 

It's up to the insurer to make sure that their policies are clear. If they fail to do so, they run the risk of the clause being interpreted in the policyholder's favour.

Under the FCA Handbook of Rules and Guidance, insurance companies must communicate information to you which is clear, fair and not misleading.

If an exclusion clause contained in your policy is ambiguous, then that ambiguity must be interpreted against the insurance company, and in your favour.

So the interpretation which favours you is the one that should prevail in such a case. 

If the insurance company sticks to its own interpretation, then you should inform your insurer that you wish to refer the matter to the Financial Ombudsman Service (FOS).

However, a term is not necessarily unfair just because it looks to be unfair. It depends on the precise details of the contract as a whole.

Key Information

In summary

  • It is often the interpretation of a clause which is essential
  • However, a term is not necessarily unfair just because it looks to be unfair. It depends on the precise detail of the contract as a whole. 
  • Under the both the Consumer Rights Act and the Unfair Terms in Consumer Contracts Regulation 1999 a term is unfair if, contrary to the requirements of good faith, it causes a significant imbalance between your rights and the obligations of the firm, to your detriment

Unfair Terms

When you signed your insurance contract will decide which legislation applies:

  • If you agreed your insurance contract before 1 October 2015 than the Under the Unfair Terms in Consumer Contracts Regulation 1999 applies.
  • If you agreed your insurance contract after 1 October 2015 then the Consumer Rights Act 2015 applies.

Under both pieces of legislation certain standard clauses may be challenged if they're considered to be unfair.

Examples would include the insurance company changing the terms of the contract without notice, binding you to hidden terms, or excluding or limiting your legal rights unfairly.

Under the both acts, a term is unfair if it causes a significant imbalance between the rights and obligations of the company and you, to your detriment.

A term is also unfair if it's contrary to the requirements of good faith - meaning they must be designed, negotiated and entered into with the consumer in a fair and open way.

Financial Conduct Authority

The FCA is responsible for considering the fairness of terms in many types of financial services contracts, including those related to insurance. 

So if you think a term in your policy is unfair, you could send the details to the FCA.

To get your individual dispute resolved, you can refer the matter to the Financial Ombudsman Service. 

There are some terms that can't be challenged as unfair. These are known as 'core terms', for example, terms that set out the price of a product or service being supplied.


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