FSPO & Court
Financial Services and Pensions Ombudsman Act
PART 7
Appeals and Applications to Court
Definitions (Part 7)
63. In this Part—
“decision” means a decision of the Ombudsman under section 60 or 61; and
“direction” means a direction included in a decision.
Appeals
64. (1) A party to a complaint before the Ombudsman may appeal to the High Court against a decision or direction of the Ombudsman.
(2) An appeal under this section shall be made—
(a) not later than 35 days after the date of notification of the decision of the Ombudsman, or
(b) within such further period, as the court considers just and equitable in all the circumstances.
(3) The orders that may be made by the High Court on the hearing of an appeal under this section include (but are not limited to) one or more of the following:
(a) an order affirming the decision or direction of the Ombudsman, subject to such modifications as it considers appropriate;
(b) an order setting aside that decision or any direction included in it;
(c) an order remitting that decision or any such direction to the Ombudsman for review with its opinion on the matter;
(d) such other order in relation to the matter as it considers just in all the circumstances;
(e) such order as to costs as it thinks fit;
(f) an order amending the decision or direction of the Ombudsman, as the case may be.
(4) The Ombudsman may be made a party to an appeal under this section.
(5) Where the High Court makes an order remitting to the Ombudsman a decision or direction of the Ombudsman for review, the Ombudsman shall review the decision or direction in accordance with any directions of the court.
(6) The decision of the High Court on the hearing of such an appeal is final, other than that a party to the appeal may apply to the Court of Appeal to review the decision on a question of law (but only with the leave of either of those courts, as appropriate).
(7) A decision or direction of the Ombudsman does not take effect, and may not be implemented, while an appeal under subsection (1) or an application under subsection (6) is pending in relation to the decision or direction.
Enforcement of Ombudsman decision
65. (1) Where a financial service provider or a pension provider fails or refuses to comply with a decision of the Ombudsman, within the period, or by the date, specified in the decision, the Circuit Court shall, on application to it on that behalf by—
(a) the Ombudsman, as he or she sees fit, or
(b) the complainant in whose favour the decision was made,
make an order.
(2) In subsection (1), the reference to a decision is a reference to such a decision in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned or determined by the court.
(3) The Circuit Court may not hear an application for an order under this section other than where—
(a) the financial service provider or the pension provider concerned appears at the hearing as respondent to the application, or
(b) the financial service provider or the pension provider concerned does not appear at the hearing, the court is satisfied that a copy of the application has been served on that financial service provider or pension provider.
(4) The Circuit Court may not hear an application for an order under this section where the person that is the financial service provider or the pension provider, as the case may be, has appealed against the decision or direction and—
(a) the decision or direction has not been affirmed (with or without modification), or
(b) that provider concerned has not withdrawn the appeal.
(5) On hearing an application for an order under this section, the Circuit Court shall, if satisfied that the direction was one that the Ombudsman was empowered to make, make an order requiring the financial service provider or the pension provider concerned to comply with the direction within a period, or by a date, specified in the order.
(6) Notwithstanding subsection (1), where, in considering an application under that subsection, the Circuit Court is satisfied that, owing to lapse of time, it would not be possible to comply with an order under that subsection, the court shall make an order providing for such redress as it considers appropriate having regard to this Part and all the circumstances.
(7) In an order under this section providing for the payment of financial redress by any person, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the person that is the financial service provider or the pension provider concerned to pay to the complainant concerned interest on the payment at the rate referred to in section 22 of the Courts Act 1981 in respect of the whole or any part of the period beginning 4 weeks after the date on which the decision or direction concerned is communicated to the parties and ending on the date of the order.
(8) An application to the Circuit Court under this section shall be made to the judge of the Circuit Court for the circuit—
(a) in which the relevant complainant ordinarily resides, or
(b) the financial service provider or the pension provider, as the case may be, has its principal place of business in the State.
Questions of law to High Court
66. (1) When dealing with a complaint, the Ombudsman may, on his or her own initiative or at the request of the complainant or the person that is the financial service provider or the pension provider concerned, refer for the opinion of the High Court a question of law arising in relation to the investigation or adjudication of the complaint.
(2) The High Court has jurisdiction to hear and determine any question of law referred to it under this section.
(3) Where a question of law in connection with the complaint concerned has been referred to the High Court under this section, the Ombudsman may not—
(a) make a decision to which the question is relevant while the reference is pending, or
(b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the High Court on the question.
Appeal of Ombudsman decision
67. Any appeal to the High Court of a decision taken by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as a reference to the Office.
Application to Circuit Court
68. Any application to the Circuit Court that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as an application by the Office.
Application to District Court
69. Any application to the District Court that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as an application by the Office.
Conviction
70. Any appeal against a conviction that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as a reference to the Office.
Enforcement proceedings
71. Any application for an enforcement order under section 141 of the Act of 1990 that, immediately before the establishment day, named the office of the Pensions Ombudsman, shall, on and from that day, be read as an application by the Office.
Power of court to grant injunctions in certain cases
72. (1) The High Court may, on an application made by the Ombudsman, grant an injunction restraining the conduct of a financial service provider or a pension provider which is engaging, or in which a financial service provider or a pension provider appears likely to engage, where the conduct is conduct that is being investigated or is proposed to be investigated or in relation to which a complaint has been received by the Ombudsman.
(2) In the case of a financial service provider, the High Court may not grant an application under subsection (1) unless of the opinion that the conduct sought to be restrained is likely to prejudice or negate the effect or implementation of a decision that the Ombudsman may make if the Ombudsman were to find the complaint to which the conduct relates is upheld, substantially upheld or partially upheld.
(3) The High Court may not require the Ombudsman to give any undertaking as to damages as a condition for the granting of an injunction in consequence of an application referred to in subsection (1).
PART 8
Other Transitional Provisions
Saving of regulations made by former Council
73. (1) Any regulations (whether or not a statutory instrument to which the Statutory Instruments Act 1947 primarily applies) made or issued by or on behalf of the Financial Services Ombudsman Council, made and in force immediately before the establishment day have, on and after that day, the same force and effect as they had prior to that day.
(2) An instrument referred to in subsection (1) may be revoked or amended by the Minister as if made by the Minister.
Financial Services Ombudsman’s Bureau
74. Any function that, immediately before the establishment day, was vested in the Financial Services Ombudsman’s Bureau shall on and from the establishment day be transferred to the Office.
PART 9
Consequential Amendments
Amendment of Central Bank Act 1942
75. The Act of 1942 is amended—
(a) in section 2—
(i) by deleting the definitions of “Financial Services Ombudsman” and “Deputy Financial Services Ombudsman”,
(ii) by inserting after the definition of “Currency Act 1927 ” the following:
“ ‘Deputy Financial Services and Pensions Ombudsman’ means a person appointed under section 8(1)(b) ofthe Financial Services and Pensions Ombudsman Act 2017 (No. ____ of 2017);”,
(iii) by inserting after the definition of “financial futures and options exchange” the following:
“‘Financial Services and Pensions Ombudsman’ means a person appointed under section 8(1)(a) ofthe Financial Services and Pensions Ombudsman Act 2017 (No. ____ of 2017);”,
and
(iv) in the definition of “regulated financial service provider”—
(I) in paragraph (bb), by substituting “enactment;” for “enactment, or”, and
(II) by deleting paragraph (c),
(b) in section 33AK(5)(ak), by substituting “Financial Services and Pensions Ombudsman” for “Financial Services Ombudsman”,
(c) in section 61E(1) by substituting for paragraphs (ga) and (gb) the following:
“(gc) the Financial Services and Pensions Ombudsman,”,
and
(d) in section 61H(4) by substituting for paragraph (b) the following:
“(b) the Financial Services and Pensions Ombudsman,”.
Amendment of Freedom of Information Act 2014
76. Part 1 of Schedule 1 to the Freedom of Information Act 2014 is amended on the establishment day—
(a) by deleting paragraphs (ab) and (ae),
(b) by substituting “functions,” for “functions.” in paragraph (ai), and
(c) by inserting after paragraph (ai) the following:
“(aj) the Financial Services and Pensions Ombudsman, insofar as it relates to records concerning the mediation, investigation or adjudication of a complaint carried out by the Financial Services and Pensions Ombudsman under the Financial Services and Pensions Ombudsman Act 2017 (No. ____ of 2017);”.
PART 10
Miscellaneous
Reciprocal arrangements with EEA countries
77. (1) In this section—
“complaint” includes a complaint within the meaning of the EEA Memorandum of Understanding; and
“EEA Memorandum of Understanding” means the “Memorandum of Understanding on a Cross-border Out-of-Court Complaints Network for Financial Services” or, if the memorandum is amended or is replaced by another memorandum, means the memorandum as so amended or that other memorandum.
(2) References to the Financial Services Ombudsman in the EEA Memorandum of Understanding in respect of its subscription shall, with the approval of the Council, be read as references to the Ombudsman.
(3) The Ombudsman may refer a complaint, concerning a financial service provider, made to him or her to another EEA dispute settlement body in accordance with the terms of the EEA Memorandum of Understanding.
(4) The Ombudsman may mediate, investigate and adjudicate on any complaint, concerning a financial service provider, referred to him or her by another EEA dispute settlement body in accordance with the terms of the EEA Memorandum of Understanding.
SCHEDULE 1
Repeals and Revocations
Section 5
PART 1
Acts of the Oireachtas
Reference
(1)
Number and year
(2)
Short title
(3)
Extent of repeal
(4)
1.
No. 22 of 1942
Central Bank Act 1942
Part VII
2.
No. 25 of 1990
Pensions Act 1990
Part XI
3.
No. 5 of 2006
Social Welfare Law Reform and Pensions Act 2006
Section 43
4.
No. 20 of 2013
Social Welfare and Pensions (Miscellaneous Provisions) Act 2013
Section 33
PART 2
Statutory Instruments
Reference
(1)
Number and Year
(2)
Short title
(3)
Extent of revocation
(4)
1.
S.I. No. 119 of 2003
Pensions (Amendment) Act, 2002 (Section 5, in so far as that section inserts sections 126 to 130, 146 and 147 of Part XI into the Pensions Act 1990) (Commencement) Order 2003
The whole instrument
2.
S.I. No. 397 of 2003
Pensions Ombudsman Regulations 2003
The whole instrument
3.
S.I. No. 398 of 2003
Pensions (Amendment) Act 2002 (Section 5 (Except in so far as that section is already in operation) and sections 8 and 58) (Commencement) Order 2003
The whole instrument
4.
S.I. No. 399 of 2003
Social Welfare (Miscellaneous Provisions) Act 2003 (Section 23) (Commencement) Order 2003
The whole instrument
5.
S.I. No. 190 of 2005
Central Bank Act 1942 (Financial Services Ombudsman Council) Regulations 2005
The whole instrument
6.
S.I. No. 191 of 2005
Central Bank Act 1942 (Financial Services Ombudsman) Regulations 2005
The whole instrument
7.
S.I. No. 329 of 2005
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2005
The whole instrument
8.
S.I. No. 330 of 2005
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations (No. 2) 2005
The whole instrument
9.
S.I. No. 828 of 2005
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations (No. 3) 2005
The whole instrument
10.
S.I. No. 302 of 2006
Pensions Ombudsman Regulations 2006
The whole instrument
11.
S.I. No. 182 of 2007
Trust RACs (Disclosure of Information) Regulations 2007
Paragraph 16 of Schedule B
12.
S.I. No. 183 of 2007
Pensions Ombudsman Regulations 2007
The whole instrument
13.
S.I. No. 726 of 2007
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2007
The whole instrument
14.
S.I. No. 576 of 2008
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2008
The whole instrument
15.
S.I. No. 500 of 2009
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2009
The whole instrument
16.
S.I. No. 446 of 2010
Circuit Court Rules (Pensions Ombudsman) 2010
The whole instrument
17.
S.I. No. 576 of 2010
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2010
The whole instrument
18.
S.I. No. 674 of 2011
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2011
The whole instrument
19.
S.I. No. 506 of 2012
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2012
The whole instrument
20.
S.I. No. 477 of 2013
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2013
The whole instrument
21.
S.I. No. 97 of 2014
Central Bank Act 1942 (Financial Services Ombudsman Council) Complaint Information Regulations 2014
The whole instrument
22.
S.I. No. 137 of 2014
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees (Amendment) Regulations 2014
The whole instrument
23.
S.I. No. 164 of 2014
Central Bank Act 1942 (Financial Services Ombudsman Council) (Amendment) Regulations 2014
The whole instrument
24.
S.I. No. 42 of 2015
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2015
The whole instrument
25.
S.I. No. 592 of 2015
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2016
The whole instrument
26.
S.I. No. 54 of 2017
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2017
The whole instrument
SCHEDULE 2
Financial Services and Pensions Ombudsman Council
Section 37
1. The Ombudsman shall, at the request of the chairperson of the Council, designate a member of the staff of the Ombudsman to be secretary to the Council.
2. There may be paid to a member of the Council such fees and allowances for expenses (if any) as may be determined by the Minister in consultation with the Minister for Public Expenditure and Reform.
3. A person ceases to be a member of the Council if the person—
(a) dies,
(b) completes a term of office and is not reappointed,
(c) resigns the office by notice in writing to the Minister in accordance with paragraph 11,
(d) has, without the permission of the other members, been absent from meetings of the Council for a consecutive period of 6 months,
(e) is, with the person’s consent, nominated as a candidate for election as a member of either House of the Oireachtas,
(f) is, with the person’s consent, nominated as a candidate for election as a member of the European Parliament or to fill a vacancy in the membership of that Parliament,
(g) is, with the person’s consent, nominated as a candidate for election as a member of a local authority,
(h) is adjudged bankrupt (either in the State or elsewhere) or enters into a composition with the person’s creditors,
(i) becomes physically or mentally incapable of performing the duties of a member,
(j) is convicted of an offence (either in the State or elsewhere) and sentenced to serve a term of imprisonment for the offence, or
(k) is removed from office by the Minister—
(i) for proven misconduct or incompetence, or
(ii) in order to enable the Council to function effectively.
4. If the office of a member becomes vacant, the Minister shall arrange for a suitably qualified person to be appointed to fill the vacancy in accordance with this Schedule as soon as possible after the date on which the vacancy occurred.
5. The Council may act notwithstanding one or more vacancies among its members.
6. At a meeting of the Council—
(a) the chairperson of the Council shall, if present, be the chairperson of the meeting, or
(b) if and so long as the chairperson of the Council is not present or if that office is vacant, the other members of the Council who are present shall choose one of their number to be chairperson of the meeting.
7. Every question at a meeting of the Council shall be determined by a majority of the votes of the members of the Council present and voting on the question and, in the case of an equal division of votes, the chairperson of the meeting shall have a second or casting vote.
8. The quorum for a meeting of the Council shall, unless the Minister otherwise directs, be 4.
9. The Council may, if it thinks fit, transact any of its business by the circulation of papers, electronically or otherwise, among all its members for the time being and in such cases a resolution approved in writing by a majority of those members shall be taken to be a decision of the Council.
10. The Council may hold or continue a meeting by the use of any means of communication by which all the participants can hear and be heard at the same time and such a meeting shall be referred to as an “electronic meeting”.
11. A member who participates in an electronic meeting is taken for all purposes to be present at the meeting.
12. A member of the Council may resign at any time his or her membership by a letter addressed to the Minister and the resignation shall take effect from the date specified in the letter (if any) or upon receipt by the Minister, whichever is the later.
13. Subject to this Schedule, the Council shall regulate its procedure by rules or otherwise.