FSPO Process

Complaints Procedure

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.

Where a question arises as to whether the Ombudsman has jurisdiction, , to investigate a complaint, the question shall be determined by the Ombudsman whose decision shall be final.

The Ombudsman shall not investigate or make a decision on a complaint where—

• the internal dispute resolution procedures required have not been complied with,
• there are or have been proceedings (other than where the proceedings have been stayed) before any court in respect of the matter that is the subject of the investigation,
• 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
• the complaint, or any matter arising in connection with the complaint, is excluded from the jurisdiction of the Ombudsman by regulations.

Time limits for complaints to Ombudsman

There are various types of complaints that may be made to the Ombudsman and time limits for each complaint. The  time limit has two parts:

For short term financial services,  a six year time limit  applies to complaints. Complaints must be made six years from the date of the act or the conduct giving rise to the complaint.

For all pension products, and for longer term financial services (where the duration of the service is 5 years and one month, or more, and not subject to annual renewal or cancellable unilaterally) complaints can be made:

• six years from the date of the act or conduct giving rise to the complaint or
• three years from the earlier of the following two dates:the date on which the person making the complaint first became aware of the said act or conduct, andthe date on which that person ought to have become aware of that act or conduct.
• within 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

The time limits for long term financial services applies to complaints made to the Ombudsman about conduct that occurred during or after 2002 and the service in which complaint is about must not have expired or otherwise been terminated more than six years before the date of complaint.

Non-Investigation

The Ombudsman may decline to investigate, or discontinue an investigation of, a complaint where, in the opinion of the Ombudsman—

• the complaint is frivolous or vexatious or was not made in good faith,
• the subject matter of the complaint is trivial,
• the conduct complained of occurred at too remote a time to justify investigation,
• there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of,
• the complainant has no interest or an insufficient interest in the conduct complained of, or
• the subject matter of the complaint is of such a degree of complexity that the courts are a more appropriate forum.

The Ombudsman may make preliminary inquiries for the purposes of deciding whether a complaint should be investigated and may request the complainant to provide further written particulars of the complaint within such reasonable period specified by the Ombudsman.

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.

The Ombudsman shall determine a complaint to be inadmissible where it was made after the expiry of the time limits specified.

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.

Internal Complaints Exhausted

The Ombudsman shall not investigate a complaint where the complainant has not given the financial services or pension provider an opportunity to deal with the complaint through the internal dispute resolution procedures. Where a complaint or dispute is being dealt with by a provider’s internal dispute resolution procedure, the applicable limitation period is suspended for the period during which the complaint is being considered under the internal dispute resolution process.

The Ombudsman may consider a complaint against a financial service provider or a pension provider before the internal dispute resolution process is completed where—

• the financial service provider or the pension provider concerned has failed to complete the internal dispute resolution process) so as to allow the complainant to make a complaint to the Ombudsman within the time limit specified, or
• the Ombudsman determines a complaint is of such importance as to warrant waiving the internal dispute resolution procedure.

The Ombudsman may waive the internal dispute resolution procedures in respect of the following:

• any complaint received by the Ombudsman on or after the establishment day;
• 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;
• 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.

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

The Minister has the power to make financial service providers and pension providers establish internal dispute resolution procedures, by means of regulations. Examples of the type of regulations that the Minister may make are set out under this section.

Regulation of Procedures

The Minister may by regulation require financial service providers and pension providers to establish procedures for dealing with complaints.  Regulations section may—

• require procedures  to comprise specified steps, including, as the Minister considers appropriate—the making of an application for a determination to be made in relation to the complaint, the conducting of a hearing in relation to the matter concerned, and the making of a determination in relation to the matter,
• require one or more of the internal dispute resolution steps to be taken or completed within a specified period,
• require the provision of information in relation to the existence of those procedures and how they may be availed of,
• prescribe such other requirements as the Minister considers necessary or expedient for the purpose of enabling complaints to be dealt with or resolved,
• require financial service providers and pension providers to publish their internal dispute resolution procedures, and
• 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).

Conduct of Investigation

The conduct of investigations is undertaken as the Ombudsman considers appropriate in all the circumstances of the case and in a manner that is appropriate and proportionate to the nature of the complaint.  The Ombudsman shall advise the parties to the complaint in writing of the conduct of investigation to be undertaken

Where the Ombudsman proposes to conduct an investigation into a complaint made , he or she shall provide the parties, and any other person who, in the opinion of the Ombudsman, might be adversely affected by any decision he or she may make in relation to the complaint, an opportunity to—

• make submissions with respect to the conduct the subject of the complaint, and
• comment on any allegations contained in the complaint or reference.

The Ombudsman shall, without prejudice to the form of investigation, ensure investigations are conducted otherwise than in public.The Ombudsman may, in the course of investigating a complaint, periodically report to the complainant on the progress of the investigation and, in so doing, may make such comments to the complainant on the investigation and its consequences and implications as the Ombudsman thinks fit.

The Ombudsman may, in the course of investigating a complaint, issue a preliminary decision to the relevant parties to the complaint, indicating the potential decision to be taken by the Ombudsman and any evidence or facts considered to arrive at that preliminary decision.

Pattern

Where the Ombudsman considers, during an investigation or following the completion of an investigation, that there is—

• a persistent pattern of complaints (whether he or she finds that such complaints are upheld or not),
• a persistent pattern of facts or evidence arising from the complaints, or
• any other matter that would be of concern to the Bank or the Pensions Authority,

the Ombudsman shall inform the Bank or the Pensions Authority, as the case may be.

Mediation

The Ombudsman shall, as part of an investigation, try, as far as possible, to resolve a complaint by mediation. The Ombudsman shall engage with complainants and providers to ensure that the objective of mediation is understood to promote engagement in the mediation process.

Participation in mediation by the parties to a complaint is voluntary, and a party may withdraw at any time. The Ombudsman may, on reasonable grounds, abandon an attempt to resolve a complaint by mediation as he or she considers appropriate.

Evidence of anything said or admitted during a mediation, or an attempted mediation, of a complaint, and any document prepared for the purposes of the mediation, are not admissible

• in any subsequent investigation, under this Part, of the complaint (unless the person who made the admission, or to whom the document relates, consents to its admission), or
• in any proceedings before a court or a tribunal in the State.

Offences

A person who—

• obstructs or hinders the Ombudsman in the performance of the functions conferred by this Act,
• does anything which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court,
• without reasonable excuse, fails to comply with a requirement or request made by the Ombudsman under the Act,
• in purported compliance with a requirement or request, gives information that the person knows to be false or misleading, or
• refuses to comply with a summons to attend before, or to be examined on oath by, the Ombudsman,

commits an offence and is liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 3 months, or both.

Court Order

The Ombudsman may apply to the Circuit Court for an order against a person where it appears to the Ombudsman that the person—

• has failed to comply with a requirement made to the person by the Ombudsman ,
• has failed to comply with a summons to appear before the Ombudsman for examination,
• having complied with a summons, has refused to be examined, or
• has otherwise obstructed the Ombudsman in the exercise of a power conferred.

Where, on hearing an application seeking an order against a person, the Circuit Court is satisfied that the person concerned has failed or refused to do the act in question, the Circuit Court may make an order requiring the person to do that act.

The Circuit Court may not hear an application for an order unless—

• the person against whom the order is sought appears at the hearing, or
• the court is satisfied that that person has been served with a copy of the application.

On the hearing of an application for an order against a person, the Circuit Court shall set aside a requirement made to the person—

• to provide information,
• to appear before and be examined by the Ombudsman,
• to produce a document or other thing, or
• to provide a copy of a document,

if it is of the opinion that the person is entitled to claim legal professional privilege with respect to the provision of the information, the production of the document or thing or the provision of the copy.

Complaints and Redress; Financial Service Providers

On completing an investigation of a complaint relating to a financial service provider that has not been settled or withdrawn, the Ombudsman shall make a decision in writing that the complaint—

• is upheld,
• is substantially upheld,
• is partially upheld, or
• is rejected.

A complaint may be found to be upheld, substantially upheld or partially upheld only on one or more of the following grounds:

• the conduct complained of was contrary to law;
• the conduct complained of was unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant;
• although the conduct complained of was in accordance with a law or an established practice or regulatory standard, the law, practice or standard is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant;
• the conduct complained of was based wholly or partly on an improper motive, an irrelevant ground or an irrelevant consideration;
• the conduct complained of was based wholly or partly on a mistake of law or fact;
• an explanation for the conduct complained of was not given when it should have been given;
• the conduct complained of was otherwise improper.

A decision of the Ombudsman shall be communicated to the parties by the Ombudsman and such decision shall include the following:

• the decision;
• the grounds for the decision
• any direction given

Orders

Where a complaint is found to be upheld, substantially upheld or partially upheld, the Ombudsman may direct the financial service provider to do one or more of the following:

• review, rectify, mitigate or change the conduct complained of or its consequences;
• provide reasons or explanations for that conduct;
• change a practice relating to that conduct;
• pay an amount of compensation to the complainant for any loss, expense or inconvenience sustained by the complainant as a result of the conduct complained of;
• take any other lawful action that the Ombudsman considers appropriate having had regard to all the circumstances of the complaint.
• Other than where a greater amount of compensation is prescribed by regulations made under section 4 , the Ombudsman may not direct the payment of an amount of compensation exceeding—
• €26,000 per annum, where the subject of a complaint is an annuity, or
• €250,000 (now €500,000) in respect of all other complaints.

A direction) which requires a financial service provider to pay an amount of compensation may provide for interest to be paid at the rate referred to in section 22 of the Courts Act 1981 where the amount is not paid by a date specified in the direction.

Decision

The Ombudsman shall give a copy of a decision under this section to—

• the complainant, and
• the financial service provider to which the complaint relates.

Where a decision under this section contains a direction the financial service provider concerned—

• shall comply with the direction within such period as is specified in the direction, or within such extended period as the Ombudsman allows, and
• shall, not later than 14 days after the end of that period or extended period referred to in paragraph notify in writing the Ombudsman of action taken or proposed to be taken in consequence of the direction.

Complaints and Redress: pension providers

On completing an investigation of a complaint relating to a pension provider that has not been settled or withdrawn, the Ombudsman shall make a decision in writing in relation to the complaint.A decision may contain such direction to the parties concerned as the Ombudsman considers necessary or expedient for the satisfaction of the complaint or the resolution of the complaint.

Where the Ombudsman makes a direction concerning a pension provider, such a direction shall not require either—

• an amendment of the rules of a scheme or the conditions of a scheme, or
• the substitution of the decision of the Ombudsman for that of the pension provider in relation to the exercise by the pension provider of a discretionary power under the rules of the scheme.

The Ombudsman may order such redress, including financial redress, for the complainant as he or she considers appropriate. Any financial redress shall be of such amount as the Ombudsman deems just and equitable having regard to all the circumstances and to this Part but shall not exceed any actual loss of benefit under the scheme concerned.

A decision shall be communicated to the parties by the Ombudsman and such decision shall include the following:

• the decision;
• the grounds for the decision;
• any direction given

Decisions of Ombudsman

Subject to the outcome of any appeal against a decision of the Ombudsman in respect of a complaint, the decision is binding on any party to the complaint.

The Ombudsman shall publish decisions made by him or her after the establishment day in relation to complaints concerning financial service providers and case studies in relation to complaints concerning pension providers in such a manner that—

ensures that complainant shall not be identifed by name, address or otherwise,a provider shall not be identified by name or address, and in accordance with the Data Protection Acts 1988 and 2003.

The Ombudsman may, if he or she considers it appropriate to do so in any particular case, publish, in such form and manner as he or she thinks fit, a report in relation to any investigation under this Part and the result of that investigation.

For the purposes of the law of defamation, the publication by the Ombudsman of any report above shall be absolutely privileged, and immune from legal proceedings.