FSPO Determination

Table of Contents

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 under this Part, 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 Obudsman 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.

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.

Obstruction of work of Ombudsman

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 this Act,
in purported compliance with a requirement or request referred to in paragraph (c), 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.

Orders to Enforce

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 t.

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.

Adjudication on Complaint

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.

Making and Communicating

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

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.

Redress

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.

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.

Decision

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.

Effect of Decisions

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

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.