Lawyers Warn UK On Track To Add Operator Duty Of Care

  • Duty of care will create certainty, but prove costly
  • Ombudsman could manage customer affordability
  • Commission unlikely to eve ease its COVID-19 restrictions

UK-licensed operators should expect to owe a duty of care to their customers and face the prospect of a new complaints ombudsman following an overhaul of the Gambling Act, lawyers have advised.

David Zeffman and Vanessa Whitman, partners at the London office of law firm CMS, warned on Wednesday that the UK gambling industry should brace for significant changes to the country’s gambling laws, but predicted that the seismic shifts may not be totally bad news.

With Prime Minister Boris Johnson’s government having promised a review of the 2005 Gambling Act, a volley of reports have emerged from bodies within Westminster and beyond over the past few months featuring reams of recommendations.

Likely to be the most influential document is the 194-page Lords report. Among its many suggestions for gambling law reform are that a new act enshrine a legal duty of care that operators owe to their customers.

“I imagine that a duty of care will be introduced,” said Zeffman, but added that, with operators already facing an increased number of legal cases from jilted customers, “there might be some merit in having a clear statutory position”.

Similarly the creation of an ombudsman — an idea backed by every major report— could act to take some of the pressure off the industry.

An independent body separate from the Gambling Commission that deals with consumer complaints would remove the burden of having to battle through bitter disputes with your own customers, said Whitman.

However, the presence of a duty of care would ultimately prove “expensive” for the industry when it comes to dealing with legal fees and settlements, even if the day-to-day workload is eased, she added.

The most robust version of a new ombudsman would even take some responsibility for managing customer affordability checks, as proposed by policy advisor James Noyes and the Social Market Foundation (SMF).

Under the Noyes plan, the ombudsman would hold financial and other data on customers and pass on affordability figures to operators which they would be required to use in setting player restrictions, like deposit limits.

Although this is unlikely to be a popular solution within the industry, Whitman said it would at least solve the problem of defining affordability.

Currently, “no one can actually agree on what affordability is or how the industry should assess it”, she said.

“If each operator is not working from the same data or applying the same rules and thresholds to that data it is extremely difficult to find a workable solution.”

Whether in the form of the powerful SMF version or a more slimline body focused exclusively on customer complaints, Whitman said she would “put my money on some sort of ombudsman being introduced in the near future”.

Both Zeffman and Whitman also concurred that supposedly temporary measures recently introduced by the UK Gambling Commission to limit problem gambling during the coronavirus pandemic are unlikely ever to be lifted.

In May, the commission imposed a raft of restrictions on its licence holders, including banning reverse withdrawals and mandating responsible gambling interactions every hour.

“It is very unlikely the COVID restrictions will be relaxed or removed,” said Whitman. “The commission has come in for some pretty brutal criticism in the recent reports and I just can’t imagine it will ease up any of those.”

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