FSPO Pre-2018

Table of Contents

FSO

The office of the Financial Services Ombudsman was established in 2004. It may hear and adjudicate on complaints against a very wide range of financial institutions. This includes, for example, banks, insurance companies, building societies, health insurers, mortgage insurance and credit intermediaries, moneylenders and stockbrokers.

The office is to investigate a complaint if it is within its jurisdiction. The complaint must be made within six years of the relevant subject matter of the complaint arising. It may not investigate, frivolous, trivial, bad faith, complaints or if there is an alternative medium of address.

It is a precondition to use of the Financials Ombudsman’s office that the financial institutions’ prior internal dispute resolution mechanism be exhausted first.

A determination by the Ombudsman’s office is binding, subject to the possibility of an appeal to the High Court. Once determined by the Financial Services Ombudsman, the subject matter of the complaint may not be the subject of litigation.

The scope of complaints includes the conduct of financial service providers. This includes the manner in which services or provisions are provided but also the refusal of financial service.

Complaints

There must be an internal procedure for handling complaints. Complaints must be dealt with, within certain periods. Complainants must be advised of the outcome of the complaint within five business days explaining, if applicable, any offer of settlement. The right to refer to the Financial Services Ombudsman must be notified. A record must be kept of complaints.

Certain customer records and documents must be kept for at least six years. This includes identity documents, product details, correspondence, applications, original legal documents and certain other required information.

The Financial Services Ombudsman

The Financial Services Ombudsman is an office to which consumers can make complaints in relation to dealings with regulated lenders (and financial service providers, generally). Compensation may be awarded without the formality, costs, risk or expense of Court proceedings.

A consumer, for the purpose of making a complaint to the Ombudsman, includes both an individual acting outside his business and companies and businesses with a turnover of less than €3,000,000 per annum.

The Ombudsman can make findings based on its investigations. It can make orders to remedy complaints which are upheld. It can make awards of compensation up to €250,000.

Grounds of Complaints

The Financial Service Ombudsman can uphold complaints, take action and award compensation not only for breaches of legal rules and codes but also on the basis of wider criteria. An Ombudsman complaint can be upheld on the basis that the conduct was:

contrary to law;
unreasonable, unjust, oppressive or improperly discriminatory (even if lawful);
the conduct was based on an improper motive or irrelevant considerations;
the conduct was based on a mistake of law or fact;
a proper explanation for the conduct complained of was not given when it should have been given;
the conduct was otherwise improper.

Consumers may refer a complaint in relation to the conduct of regulated financial services providers to the Financial Services Ombudsman. The Financial Services Ombudsman Council consists of up to 5 to 10 members appointed by the Minister for Finance.

They may make regulations in relation to how the Ombudsman functions, including matters to be taken into account,

procedures to be followed and
circumstances in which this complaint can be dismissed,

They set regulations level of fees, appoint the Financial Services Ombudsman, review the bureau, advise the Minister for Finance on its operations.

The Financial Services Ombudsman Bureau consists of the Ombudsman Deputy Financial Services Ombudsman and employed staff. It is now the Financial Services and Pensions Ombudsman.

Eligible Complaints

The Ombudsman deals with complaints by eligible consumers about the conduct of financial service providers. It may proceed by mediation or if necessary investigate and adjudicate upon the complaint.

Eligible consumers are similar to those covered by the Consumer Protection Code. They are, broadly speaking, natural persons and businesses, including companies with a turnover of less than €3 million.

A customer may make a complaint if he is a person to whom the provider has offered financial services.

A complaint may not be made

which has been or is the subject of legal proceedings
occurred more than six months earlier
is within the Pension Ombudsman’s jurisdiction or
is in certain excluded classes as described by the Council’s regulations.

The consumer must first exhaust the internal complaint mechanism of the financial service provider. It must give the provider a reasonable opportunity to deal with the complaint.

Regulated providers are obliged to have a complaints procedure and internal dispute resolution procedure. Generally, the complaint will be made when the financial services provider confirms that the dispute has not been resolved.

The consumer is entitled to take legal proceedings after adjudication by the FSO. The provider is not entitled to take proceedings in relation to the same matter.

After receiving a complaint, the FSO must provide the complaint to the financial services provider. Complaints may be rejected on the basis that

they are not made in good faith,
they are trivial
they are too remote in time
the existence of an alternative and satisfactory means of redress or
the complaint has no interest or insufficient interest in the matter.

Mediation

The legislation obliges the FSO to use mediation to resolve disputes insofar as possible. This can only occur voluntarily. Mediation can be abandoned at any time. Information about and evidence of anything said during mediation is not admissible in an investigation of the complaint by the FSO or in any legal proceeding.

Mediation has, in practice, been successfully applied. It is voluntary and confidential. It may permit a more flexible and innovative resolution of the dispute. It can assist in maintaining relationships and generally save money and conflict.

The office seeks to deal with complaints by way of mediation where possible. Generally, it must act in an informal matter, and in accordance with equity, good conscience and the substantive merits of the complaint, without regard to a technicality or legal form. It is to act in an informal and expeditious manner.

It is obliged by statute to seek to resolve the complaint by mediation. In practice, many financial institutions have been unwilling to engage in mediation following the exhaustion of their own internal remedies. In many such cases, they feel there is nothing further to engage in, and they have determined their position.

Adjudication

When mediation fails, the FSO conducts an investigation. Each party may make submissions regarding the complaint. The FSO can require the financial services provider to provide information in writing, to produce a document or provide a document or a thing or provide a copy of that which appears relevant. Information provided is not admissible in criminal proceedings except where the FSO is given false or misleading information.

It makes a preliminary finding. This is undertaken by a dispute resolution officer supported by technical specialists. Where possible, a legally binding finding is made with the possibility of an oral hearing.

Adjudication is made on the basis set out in the legislation. This includes not only that the conduct was contrary to the law, but also that it was unreasonable, unjust, oppressive and improperly discriminatory;

notwithstanding that the practice was in accordance with law or an established practice, that the practice of law or standard is unreasonable, unjust, oppressive, or improperly discriminatory in its application to the complainant.

Procedure

The adjudication process seeks to rely on submissions of the parties but also the offices’ investigation. Adjudication seeks to take account of what the office considers fair and reasonable in the circumstances. Emphasis is placed on customer information.

Oral hearings are undertaken where there are issues of fact in dispute which cannot be resolved fairly on the basis of the documents presented.

At an oral hearing, both parties may make submissions or be represented. They may offer evidence, cross-examine others and question their witnesses and documentation.

Originally, the courts held that the matter of holding an oral hearing was one for the Ombudsman and that it was appropriate to protect the informality and simplicity of procedures. However, the courts in the exercise of the general functions of judicial review, have held that the office as an agent of the State must uphold the constitutional right of fair procedure. This may require an oral hearing in appropriate cases.

The courts should not easily interfere with the decision of the Ombudsman. However, where matters of external disputed fact arise, it may be that an oral hearing is required.

The office proposes a new dispute resolution mechanism and greater use of electronics. The Financial Services Ombudsman may be merged with the Pensions Ombudsman.

The FSO can summon any officers or employees of the provider to attend and examine them on oath. It has the same powers as a High Court Judge in civil proceedings. Information provided is not admissible in any criminal proceedings except where given falsely or where it is misleading.

Investigations are conducted in private. The FSO may enter business premises and inspect documents. It may make an application for and obtain a compliance order from the Circuit Court where it believes a person has failed to comply with a requirement, failed to comply with a summons to appear or has disrupted the investigation. The FSO may refer a question of law to the High Court.

It is an offence to obstruct the FSO in its duties or without reasonable excuse to fail to comply with a requirement or request or refuse to attend and be examined on oath.

The FSO can apply to the High Court for an injunction to restrain the financial services provider from engaging in, that conduct which is the subject of the investigation, or conduct which s likely to affect the implementation of the order, should the complaint be substantiated.

Upon completion of the investigation, the FSO must make a finding in writing that the complaint is substantiated, not substantiated or substantiated partly. It must give a copy to both the complainant and financial service provider as well as the FSO Council and Financial Regulator.

Determinations

The office may make an award of up to €500,000. It may require rectification of the matter concerned. It may make a report to the Central Bank. It may require changes in the relevant practice.

After filing a complaint, directions may be given to review, rectify, mitigate, change conduct, provide explanations, change practice, and pay compensation to the complainant for any loss expense or inconvenience caused.

If the consumer is unsatisfied, he or she may appeal the findings to the High Court. The finding does not take effect, while an appeal is pending.

Once a direction or notice is given by the FSO to a provider regarding a complaint, it must comply with the direction or notice within 14 days or such extended period as may be allowed and, within 14 days or the extended period, notify the FSO of the action taken in consequence. If the financial provider does not comply, an enforcement order can be applied for and be made by the Circuit Court. The matter may be appealed to the High Court.

Reform

In practice, the office has been somewhat less speedy and more formal and legalistic than intended. To a significant extent, this is the result of High Court cases on due process and constitutional justice.

Under the new dispute resolution model, the office seeks to engage by way of understanding the matters in dispute, holding conferences, holding of mediation where possible and investigation.