FSPO Complaints
Financial Services and Pension Ombudsman Act
Complaints to the Ombudsman
Making of complaints
44. (1) Subject to section 51(2), a complainant may make a complaint to the Ombudsman in relation to the following:
(a) the conduct of a financial service provider involving—
(i) the provision of a financial service by the financial service provider,
(ii) an offer by the financial service provider to provide such a service, or
(iii) a failure by the financial service provider to provide a particular financial service requested by the complainant;
(b) the conduct of a pension provider involving—
(i) the alleged financial loss occasioned to a complainant by an act of maladministration done by or on behalf of the pension provider, or
(ii) any dispute of fact or law that arises in relation to conduct by or on behalf of the pension provider;
(c) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted on or after the establishment day.
(2) A complainant may not make a complaint under subsection (1) where—
(a) the conduct giving rise to the complaint is or has been the subject of—
(i) legal proceedings before a court or tribunal, or
(ii) subject to subsection (3), a decision of the Ombudsman, the Financial Services Ombudsman or the Pensions Ombudsman,
(b) the substance of the complaint has been communicated to the financial service provider or the pension provider concerned and that financial service provider or pension provider has, subject to section 54, not been given a reasonable opportunity to deal with the matter, or
(c) the conduct complained of relates to a matter that—
(i) is within the jurisdiction of the Workplace Relations Commission or the Pensions Authority, or an alternative suitable forum or tribunal,
(ii) is of a class prescribed by regulations made by the Minister under section 4, or
(iii) occurred outside the time limits specified in section 51.
(3) Where, in respect of a complaint made under the Act of 1942—
(a) the Financial Services Ombudsman refused to consider a complaint on the basis that the complaint was outside the time limit specified in the Act of 1942 for making complaints, and
(b) that complaint under the Act of 1942 now falls within the time limit specified in section 51,
the complainant may make a further complaint to the Ombudsman.
(4) A complainant may make a complaint under subsection (1) where the conduct complained of occurred before the commencement of this Act provided the conduct concerned occurred within the time limits specified in section 51.
(5) A complaint under subsection (1) shall, subject to subsection (6), be in writing or such format as the Ombudsman considers appropriate in the circumstances.
(6) The Ombudsman may, where he or she considers it appropriate to do so, accept a complaint that is not in writing and, where it is so accepted, the Ombudsman shall reduce the complaint to writing as soon as practicable.
(7) The Ombudsman shall publish on his or her website or by way of other communications generally available to the public the format of complaints that are acceptable.
(8) As soon as practicable after receiving a complaint in relation to the conduct of a financial service provider or a pension provider, the Ombudsman shall provide the financial service provider or the pension provider, as the case may be, with details of the complaint.
(9) The Ombudsman may enter into an arrangement with a person under which that person will receive complaints on behalf of the Ombudsman.
(10) A complaint received by a person under the arrangement referred to in subsection (9) is, for the purposes of this Part, taken to have been received by the Ombudsman.
(11) Where the Bank, or the Pensions Authority, receives a complaint that appears to be within the jurisdiction of the Ombudsman—
(a) the Bank or the Pensions Authority, as the case may be, shall, without delay, refer the complaint to the Ombudsman for investigation, and
(b) a complaint made under this subsection is, for the purposes of this Part, taken to have been made under subsection (1), by the complainant concerned.
Death or disability of complainant
45. (1) Where a complainant dies, is a minor or is otherwise unable to act for himself or herself, then—
(a) any complaint which a complainant might otherwise have made or referred under this Part may be made or referred by the appropriate person, and
(b) anything in the process of being done by or in relation to a complainant under or by virtue of this Part may be continued by or in relation to the appropriate person,
and any reference in this Part, other than in this section, to a complainant shall be construed as including a reference to the appropriate person.
(2) For the purposes of subsection (1)—
(a) “appropriate person” means—
(i) where the complainant has died, his or her legal personal representative, or
(ii) in any other case, a member of his or her family, or some other person who is considered by the Ombudsman to be a suitable person to represent him or her,
and
(b) the reference to “complainant”, in so far as that subsection relates to a person who is a minor or who is otherwise unable to act for himself or herself, includes a reference to an intending complainant.
Continuation of investigation on death of complainant
46.The power of the Ombudsman in relation to the continuation of an investigation on the death of a complainant may be exercised in relation to the following:
(a) any complaint received by the Ombudsman on or after the establishment day;
(b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day where a decision of the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, has not been made.
Powers of Ombudsman in relation to investigation of complaint
47. (1) Other than in respect of a complaint specified in section 44(2), the Ombudsman may conduct an investigation into a complaint referred to him or her.
(2) The Ombudsman shall keep the parties to the complaint informed as to the progress of the investigation.
(3) In conducting an investigation, the Ombudsman may—
(a) require any person, who in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his or her power or control, that is relevant to the investigation, to—
(i) provide to him or her that information, either orally or in writing,
(ii) produce to him or her that document or a copy of the document,
and
(b) require any person to attend before him or her, either voluntarily or by way of summons, and be examined on oath in relation to any matter, including to produce a document or copy of a document referred to in paragraph (a)(ii), that appears to the Ombudsman to be relevant to the investigation.
(4) The Ombudsman shall give notice of a requirement under subsection (3) either orally or in writing and shall specify in the notice—
(a) the information or document required,
(b) the date by which the information or document is required, and
(c) the place at which attendance, if any, is required.
(5) Subject to any regulations made under section 4, the procedure for the making of complaints and the conduct of investigations shall be such as the Ombudsman considers appropriate in all the circumstances of the case, and he or she may, in particular, obtain information from such persons and in such manner, and make such enquiries, as he or she thinks fit.
(6) When investigating a complaint about the conduct of a financial service provider or a pension provider, the Ombudsman may, at any reasonable time—
(a) enter and inspect any business premises occupied or used by the financial service provider or the pension provider, or by any other body or person who is associated with that provider, and
(b) inspect any document or thing in or on the premises.
(7) If a document is kept in a non-legible form, the Ombudsman may request the person who appears to be in charge of the document to reproduce it in a legible form or to provide to the Ombudsman such information as the Ombudsman reasonably requires in relation to that document.
(8) Without prejudice to the powers conferred by this Part, the Ombudsman shall, for the purposes of an investigation under this section, have all the powers, rights and privileges vested in the High Court or a judge of that court on the hearing of civil proceedings in respect of the examination of witnesses, including the administration of oaths and affirmations and the examination of witnesses outside the State.
(9) Subject to this Part, a person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.
(10) Information provided by a person in response to a requirement under subsection (3), or an answer to a question put to a person in the course of a requirement under subsection (3), is not admissible as evidence against that person in criminal proceedings other than in respect of perjury or an offence committed under section 59.
(11) Nothing in this section shall require any person to provide information or produce a document, or a copy of a document, the communication of which is subject to legal professional privilege.
Annotations:
Modifications (not altering text):
C1
Reference to perjury construed (28.07.2021) by Criminal Justice (Perjury and Related Offences) Act 2021 (13/2021), s. 4(2) and sch. 2 item 55, S.I. No. 378 of 2021.
References to perjury or subornation of perjury
4. …
(2) A reference in an enactment specified in Schedule 2 to perjury or to subornation of perjury, howsoever described, in relation to an act committed on or after the coming into operation of this subsection, shall be construed as a reference to perjury or to subornation of perjury, as the case may be, within the meaning of this Act.
…
SCHEDULE 2
Section 4 (2)
…
55. Financial Services and Pensions Ombudsman Act 2017, section 47(10)
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Investigation by Ombudsman of complaints made before establishment day
48. The power of the Ombudsman to conduct an investigation under section 47 shall apply to any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that—
(a) had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be,
(b) was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted, on or after the establishment day, or
(c) was being investigated by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be.
Staying of court proceedings
49. Where—
(a) a complaint has been made to the Ombudsman, and
(b) any party to the complaint subsequently commences proceedings in any court against any other party to the complaint in respect of any of the matters which are the subject of the complaint,
then, any party to the proceedings may at any time after an appearance has been entered, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings and the court, if it is satisfied that—
(i) there is no sufficient reason why the matter in respect of which the said proceedings have been commenced should not be investigated by the Ombudsman, and
(ii) the party that commenced the proceedings was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary for the proper conduct of the investigation,
shall make an order staying the proceedings.
PART 6
Complaints Procedure
Jurisdiction of Ombudsman
50. (1) Notwithstanding sections 44(2)(a)(i) and 54(1), the Ombudsman may accept a complaint against a financial service provider or a pension provider that has initiated legal proceedings in relation to a matter to which the complaint relates, where the Ombudsman believes, based on reasonable grounds, that the financial service provider or the pension provider, as the case may be, has begun those proceedings in order to prevent the making of the complaint, or to frustrate or delay its investigation.
(2) Where a question arises as to whether the Ombudsman has jurisdiction, under this Act, to investigate a complaint, the question shall be determined by the Ombudsman whose decision shall be final.
(3) The Ombudsman shall not investigate or make a decision on a complaint where—
(a) the internal dispute resolution procedures required under section 54 have not been complied with,
(b) there are or have been proceedings (other than where the proceedings have been stayed under section 49) before any court in respect of the matter that is the subject of the investigation,
(c) the complaint relates to a matter that is within the jurisdiction of the Workplace Relations Commission or Pensions Authority or an alternative suitable forum or tribunal, or
(d) the complaint, or any matter arising in connection with the complaint, is excluded from the jurisdiction of the Ombudsman by regulations made under section 4.
Time limits for complaints to Ombudsman
51. (1) A complaint in relation to conduct referred to in section 44(1)(a) that does not relate to a long-term financial service shall be made to the Ombudsman not later than 6 years from the date of the conduct giving rise to the complaint.
(2) A complaint in relation to—
(a) conduct referred to in section 44(1)(a) that, subject to the requirements specified in subsection (3), relates to a long-term financial service, or
(b) conduct referred to in section 44(1)(b), that is subject to the requirements specified in subsection (4),
shall be made to the Ombudsman within whichever of the following periods is the last to expire:
(i) 6 years from the date of the conduct giving rise to the complaint;
(ii) 3 years from the earlier of the date on which the person making the complaint became aware, or ought reasonably to have become aware, of the conduct giving rise to the complaint;
(iii) such longer period as the Ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period.
(3) The requirements referred to in subsection (2)(a) are that—
(a) the long-term financial service concerned has not expired or otherwise been terminated more than 6 years before the date of the complaint, and the conduct complained of occurred during or after 2002, or
(b) the Ombudsman has allowed a longer period under subsection (2)(iii).
(4) The requirements referred to in subsection (2)(b) are that—
(a) where the conduct occurred prior to the establishment day, that conduct occurred within the period between 13 April 1996 and the establishment day, or
(b) the Ombudsman has allowed a longer period under subsection (2)(iii).
(5) For the purposes of subsections (1) and (2)—
(a) conduct that is of a continuing nature is taken to have occurred at the time when it stopped and conduct that consists of a series of acts or omissions is taken to have occurred when the last of those acts or omissions occurred, and
(b) conduct that consists of a single act or omission is taken to have occurred on the date of that act or omission.
(6) The time limits specified in this section shall, on and after the establishment day, apply to the following:
(a) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman which had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be;
(b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted to the Ombudsman on or after the establishment day.
Declining to investigate
52. (1) The Ombudsman may decline to investigate, or discontinue an investigation of, a complaint where, in the opinion of the Ombudsman—
(a) the complaint is frivolous or vexatious or was not made in good faith,
(b) the subject matter of the complaint is trivial,
(c) the conduct complained of occurred at too remote a time to justify investigation,
(d) there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of,
(e) the complainant has no interest or an insufficient interest in the conduct complained of, or
(f) the subject matter of the complaint is of such a degree of complexity that the courts are a more appropriate forum.
(2) The Ombudsman may make preliminary inquiries for the purposes of deciding whether a complaint should be investigated under this Part and may request the complainant to provide further written particulars of the complaint within such reasonable period specified by the Ombudsman.
(3) The Ombudsman may decide not to continue to investigate a complaint where the complainant fails within a reasonable period to comply with a request for further written particulars.
(4) The Ombudsman shall determine a complaint under section 44 to be inadmissible where it was made after the expiry of the time limits specified in section 51.
(5) As soon as practicable after deciding not to investigate a complaint, or to discontinue an investigation of a complaint, the Ombudsman shall inform the complainant in writing of the decision and the reasons for it.
Complaints declined where section 52 applies
53.The Ombudsman may, where section 52 applies,decline to investigate, or discontinue an investigation of, a complaintreceived—
(a) by the Ombudsman on or after the establishment day,
(b) by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day where a decision of the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, has not been made.
Use of internal dispute resolution procedures
54. (1) The Ombudsman may decide not to investigate or make a decision on a complaint where—
(a) the complainant has not engaged with the financial service provider or the pension provider concerned, and
(b) that financial service provider or pension provider has not been given a reasonable opportunity to deal with the complaint, as the case may be, through the internal dispute resolution procedures of the provider concerned.
(2) The time limit specified in section 51 is suspended for the period during which a complaint is being considered under the appropriate internal dispute resolution procedure.
(3) Notwithstanding subsection (1) the Ombudsman may consider a complaint against a financial service provider or a pension provider before the internal dispute resolution process is completed where—
(a) the financial service provider or the pension provider concerned has failed to complete the internal dispute resolution process referred to in subsection (1) so as to allow the complainant to make a complaint to the Ombudsman within the time limit specified in section 51, or
(b) the Ombudsman determines a complaint is of such importance as to warrant waiving the internal dispute resolution procedure.
(4) The Ombudsman may waive the internal dispute resolution procedures referred to in subsection (2), in respect of the following:
(a) any complaint received by the Ombudsman on or after the establishment day;
(b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day which had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be;
(c) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively that has, subject to the time limits in section 51, been resubmitted on or after the establishment day.
(5) The Ombudsman shall publicise on his or her website, and make available to financial service providers and pension providers, information in respect of his or her discretion to waive the internal dispute resolution procedures referred to in subsection (4).
Requirement for internal dispute resolution procedures
55. (1) The Minister may by regulation require financial service providers and pension providers to establish procedures for dealing with complaints.
(2) Regulations under this section may—
(a) require procedures referred to in subsection (1) to comprise specified steps, including, as the Minister considers appropriate—
(i) the making of an application for a determination to be made in relation to the complaint,
(ii) the conducting of a hearing in relation to the matter concerned, and
(iii) the making of a determination in relation to the matter,
(b) require one or more of the internal dispute resolution steps to be taken or completed within a specified period,
(c) require the provision of information in relation to the existence of those procedures and how they may be availed of,
(d) prescribe such other requirements as the Minister considers necessary or expedient for the purpose of enabling complaints referred to in this subsection to be dealt with or resolved,
(e) require financial service providers and pension providers to publish their internal dispute resolution procedures, and
(f) as respects schemes, specify different requirements by reference to the class of scheme concerned (being a class defined in the regulations by reference to the number of members of the scheme or such other matters as the Minister considers appropriate).