COAF 1.5 Procedure

The FSA will, in response to each complaint made in a durable medium, send to the complainant a leaflet, in a durable medium, explaining how the complaints scheme works, including details of his right to refer the complaint to the Complaints Commissioner if he is dissatisfied with the way in which the FSA has dealt with it (see COAF 1.5.6 G).1

1On receiving a complaint, the FSA will determine whether it can be dealt with under the complaints scheme and whether it can be dealt with under the 'fast track' complaints handling procedure (see COAF 1.5.1D G).

1Where the FSA does not investigate a complaint under the complaints scheme, either because the FSA considers it to be outside of the scope of the complaints scheme or for another reason described in COAF (see COAF 1.2 (Application) and COAF 1.4 (Coverage and scope of the scheme)), the FSA will write to the complainant explaining why this is the case and informing him of his right to ask the Complaints Commissioner to review the decision. The FSA will do this within four weeks of receiving the complaint or, where COAF 1.5.1G G (1) applies, within four weeks of the complainant notifying the FSA that he is dissatisfied with the way his complaint has been handled.

1. (1)

   1A complaint made orally by a consumer will be investigated by the FSA. However, if the FSA requires clarification from the complainant as to the nature or scope of the complaint, the FSA may either invite the complainant to confirm or clarify the details of the complaint, or it may communicate its understanding of the nature or scope of the complaint to the consumer, in a durable medium.

2. (2)

   Other persons complaining orally will be asked to confirm their complaint in a durable medium.

3. (3)

   The FSA may ask the complainant to explain what remedy he is seeking or to provide any factual information that supports his complaint in a durable medium.

4. (4)

   The FSA may not be able to progress its investigation of a complaint until it has received the information described in (1) to (3), as it needs to understand from the complainant what the complaint is about if it is to investigate it properly.

1. (1)

   1The FSA will use a 'fast track' procedure for investigating a complaint where it believes the complaint:

   1. (a)

      is of low impact from the perspective of both the complainant and the FSA (for example, it is about a minor administrative mistake); and

   2. (b)

      can be dealt with within five business days of the FSA first receiving communication of the complaint, in a way that the FSA believes remedies any adverse effect on the complainant.

2. (2)

   If, after initiating the 'fast track' complaints handling procedure for a particular complaint, the FSA then considers that the complaint does not meet the criteria in (1), it will then deal with it as described at COAF 1.5.1H G.

1The 'fast track' procedure will involve the complaint being dealt with under the complaints scheme by the area of the FSA most closely concerned with the matter complained of.

1For all complaints dealt with under the 'fast track' procedure, the FSA will advise the complainant of his right to refer his complaint to the FSA's Corporate Services Division4if he believes the complaint has not been resolved or is otherwise dissatisfied with the way it has been dealt with.

1. (1)

   1If the complainant refers his complaint to the FSA's Corporate Services Division4, the FSA will acknowledge this complaint within five business days of receiving this referral.

   4
2. (2)

   The FSA will review the complaint, at this point, to make sure that it falls within the scope of the complaints scheme. If the FSA considers that the complaint is outside the complaints scheme, it will follow the procedures in COAF 1.5.1B G. Otherwise, it will handle the complaint in accordance with COAF 1.5.2 G.

1Where a complaint is not suitable for the 'fast track' complaints handling procedure, the FSA will acknowledge it within five business days of receipt and will deal with it in accordance with COAF 1.5.2 G.

The FSA will arrange for an initial investigation by its own staff of any complaint which is a complaint under the terms of the complaints scheme and which does not come within the provisions of COAF 1.4.1 G to COAF 1.4.6 G. That investigation will be carried out by a suitably senior member of staff who has not previously been involved in the matter complained of, with a view to resolving the matter to the complainant's satisfaction.1

2In carrying out the investigation, the suitably senior member of staff will undertake a paper-based review of the complaint, by considering any documents supplied initially by the complainant, and any relevant FSA documents, or following communications from the FSA under COAF 1.5.1C G. The investigation will not involve an interview of the complainant.

The FSA will seek to resolve the complaint as quickly as possible. The FSA will either complete the investigation of a complaint within four weeks, or it will write to the complainant within this time setting out a reasonable timescale within which it plans to deal with the complaint. If the FSA has not already confirmed whether or not the complaint will be admitted to the complaints scheme, the FSA will include this information.1

If the FSA concludes that a complaint is well founded, it will tell the complainant what it proposes to do to remedy the matters complained of.1

Remedying a well founded complaint may include offering the complainant an apology, taking steps to rectify an error or, if appropriate, the offer of a compensatory payment on an ex-gratia basis. If the FSA decides not to uphold a complaint, it will give its reasons for doing so to the complainant, and will inform the complainant of his right to ask the Complaints Commissioner to review the FSA's decision.1

Complainants who are dissatisfied with the outcome of an investigation, or who are dissatisfied with the FSA's progress in investigating a complaint, may refer the matter to the Complaints Commissioner, who will consider whether or not to carry out his own investigation.1

1. (1)

   2When the FSA writes to a complainant with its final report of its investigation, or explaining that it will not investigate a complaint under the complaints scheme under COAF 1.5.1B G, the FSA will inform the complainant that, if he is dissatisfied, he must refer the FSA's decision to the Complaints Commissioner within three months of the date of that letter.

2. (2)

   If the Complaints Commissioner receives a referral of a matter outside the three months time limit, it will be for the Complaints Commissioner to decide whether there is a good reason why the matter should be considered out of time.

When the FSA has told a complainant in writing that it will not investigate his complaint, as provided for by COAF 1.5.1A G, it will also notify the Complaints Commissioner of this fact. The Complaints Commissioner will not review the FSA's decision unless the complainant requests this. Where the complainant does request this, the Complaints Commissioner will, after considering any representations from the complainant and the FSA, then decide whether the complaint falls within the scope of the complaints scheme and, if so, whether to conduct an investigation.1

1. (1)

   If a complaint is referred or notified to the Complaints Commissioner before the FSA has had the opportunity to conduct or complete an investigation, the Complaints Commissioner will consider whether it would be desirable to allow the FSA that opportunity before conducting his own investigation.1

2. (2)

   Paragraph (1) also applies to a complaint received by the Complaints Commissioner when he is conducting a Stage 2 investigation into another complaint from the same complainant.1

The Complaints Commissioner will not investigate any complaint which is outside the scope of the complaints scheme, but the final decision on whether a particular case is so excluded rests with the Complaints Commissioner.

The Complaints Commissioner may conduct an investigation in whatever manner he thinks appropriate including obtaining, at the FSA's expense, such external resources as may be reasonable. In considering what is appropriate, the Complaints Commissioner will take into account the need to ensure that complaints are dealt with fairly, quickly and cost effectively.1

1In performing his functions in accordance with the complaints scheme, the Complaints Commissioner must at all times act independently of the FSA.

The Complaints Commissioner may appoint a person to conduct the whole or any part of an investigation on his behalf but subject to his direction. That person must not be an officer or employee of the FSA.

The FSA will afford the Complaints Commissioner all reasonable co-operation, including giving access to its staff and information. The FSA may, in affording the Complaints Commissioner access to information, have regard to the need to maintain the confidentiality of certain kinds of information. This would include, for example, taking appropriate steps to ensure that the identity of an informant is not disclosed, or maintaining the confidentiality of information given to the FSA under international arrangements. In any case where the FSA decides that it should withhold information, it will inform the Commissioner of the nature of that information and its reasons for withholding it.

The FSA is not, because of any investigation being conducted by the Complaints Commissioner, prevented from continuing to take such action, or such further action, as it considers appropriate in relation to any matter which is related to a complaint or a complainant.

The Complaints Commissioner will ensure that, before he concludes an investigation and makes a report, any person who may be the subject of criticism in it is given notice of, and the opportunity to respond to, that criticism.

In the investigation of a complaint by either the FSA or the Complaints Commissioner, any finding of fact of:

1. (1)

   a court of competent jurisdiction (whether in the United Kingdom or elsewhere); or

2. (2)

   the Tribunal; or

3. (3)

   any other tribunal established by legislative authority (whether in the United Kingdom or elsewhere); or

4. (4)

   any independent tribunal charged with responsibility for hearing a final appeal from the regulatory decisions of PIA, IMRO or SFA;

which has not been set aside on appeal or otherwise, shall be conclusive evidence of the facts so found, and any decision of that court or tribunal shall be conclusive.

Any findings of fact or decisions of courts or tribunals not covered by COAF 1.5.15 G will carry such weight as the FSA or the Complaints Commissioner considers appropriate in the circumstances.

In deciding whether a complaint is well founded and, if so, in deciding what steps he should recommend the FSA to take, the Complaints Commissioner will have regard to the FSA's statutory objectives and the considerations set out in sections 2(3) or 73(1) of the Act.

The Complaints Commissioner may, if he thinks it appropriate, recommend that the FSA remedy the matters complained of, as described in COAF 1.5.5 G.1

3The Complaints Commissioner expects his communications with complainants and the FSA during the course of an investigation to remain strictly confidential. Where a complainant breaches this requirement the Complaints Commissioner may, after having considered all the circumstances including any explanation from the complainant, decide to bring the investigation to an end without having to report under COAF 1.5.19 G. Where the FSA breaches this requirement, the Complaints Commissioner will take account of this when formulating his conclusions and the breach will be recorded in the Complaints Commissioner's final report.

The Complaints Commissioner must report to the FSA and to the complainant on the results of his investigation, giving reasons for any recommendations he makes.

1. (1)

   2The Complaints Commissioner will send a preliminary report, with a time limit within which the FSA and the complainant may indicate in writing any disagreement with or comments on the preliminary report.

2. (2)

   At the end of this time limit, the Complaints Commissioner will produce a final report after taking into account, at his discretion, any disagreements or comments notified to him. The final report will be the conclusion of the investigation procedure set out in COAF 1.5 and the complaint will then be regarded as closed by the Complaints Commissioner and the FSA.

The Complaints Commissioner will ensure that his report, apart from identifying the FSA, does not mention the name of any other person or contain particulars which are likely to identify any other person unless:

1. (1)

   in the opinion of the Complaints Commissioner the omission of such particulars would be likely to impair the effectiveness of the report; or

2. (2)

   after taking into account the public interest, as well as the interests of the complainant and the interests of other persons, the Complaints Commissioner considers it necessary to mention the name of that person or to include in the report those particulars (see also COAF 1.5.14 G).

The Complaints Commissioner may publish his report (or any part of it) if he considers that the report (or any part of it) ought to be brought to the attention of the public.

The FSA must, in any case where the Complaints Commissioner has reported that a complaint is well founded, or where he has criticised the FSA in his report, inform the Complaints Commissioner and the complainant of the steps which it proposes to take by way of response.

The FSA must, if required by the Complaints Commissioner to do so, publish the whole or a specified part of its response.

In deciding how it should respond to a report from the Complaints Commissioner, the FSA will, as well as having regard to its statutory objectives and the considerations set out in section 2(3) or 73(1) of the Act, normally take into account the following:

1. (1)

   the gravity of the misconduct which the Complaints Commissioner has identified and its consequences for the complainant;

2. (2)

   the nature of the FSA's relationship with the complainant and the extent to which the complainant has been adversely affected in the course of his direct dealings with the FSA;

3. (3)

   whether what has gone wrong is at the operational or administrative level;1

4. (4)

   the impact of the cost of compensatory payments on firms, issuers of listed securities and, indirectly, consumers.