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  3. Point in time
    2008-04-04

DISP 2.4 Who can refer a complaint to the Financial Ombudsman Service?

DISP 2.4.1R

A complaint may be dealt with under the Financial Ombudsman Service only if it is brought by or on behalf of an eligible complainant.

DISP 2.4.2G

Eligible complainants are those falling within one of the classes of person specified in DISP 2.4.3 R; and

  1. (1)

    having a customer or potential customer relationship with a firm, licensee8 or VJ participant (as specified in DISP 2.4.7 R and DISP 2.4.8 R); or

  2. (2)

    having an indirect relationship with a firm, licensee8 or VJ participant (as specified in DISP 2.4.10 R);

or, in relation to relevant complaints, those specified in the Ombudsman Transitional Order or the Mortgages and General Insurance Transitional Order (see DISP 2.4.14 G, DISP 2.4.15 G, and DISP App 1.3.1 G).2

Classes of person

DISP 2.4.3R
  1. (1)

    Subject to (2), a person is an eligible complainant if he is:

    1. (a)

      a private individual; or

    2. (b)

      a business, which has a group annual turnover of less than £1 million at the time the complainant refers the complaint to the firm, licensee8 or VJ participant; or

    3. (c)

      a charity which has an annual income of less than £1 million at the time the complainant refers the complaint to the firm, licensee8 or VJ participant; or

    4. (d)

      a trustee of a trust which has a net asset value of less than £1 million at the time the complainant refers the complaint to the firm, licensee8 or VJ participant;

    who satisfies the relevant criteria in DISP 2.4.7 R - DISP 2.4.12 R, and is not within (2).

  2. (2)

    The following are not eligible complainants:

    1. (a)

      (in the Compulsory Jurisdiction), 4an individual, business, charity or trustee (of a trust which is not a pension scheme trust falling under (1)(d) above)59, who was a professional client or eligible counterparty59 in relation to the firm in question at the time of the act or omission, and in respect of the activity, which is the subject of the complaint 5 9 ;

      5959
    2. (aa)

      (in the Consumer Credit Jurisdiction), a company , a partnership consisting of more than three persons, a partnership all of whose members are companies or an unincorporated body which consists entirely of companies;8

    3. (b)

      (in the Compulsory Jurisdiction, 4the Consumer Credit Jurisdiction and the Voluntary Jurisdiction),8a firm, licensee8 or VJ participant whose complaint 5 9 relates in any way to an activity which the firm itself has permission to carry on or which the licensee or 8VJ participant itself conducts, and which is subject to the Compulsory Jurisdiction, the Consumer Credit Jurisdiction 8 or the Voluntary Jurisdiction of the Financial Ombudsman Service.

      59
DISP 2.4.4G

For the purposes of DISP 2, a business includes a sole trader, a company, an unincorporated body and a partnership carrying on any trade or profession. But, in the Consumer Credit Jurisdiction, eligible complainant excludes a company, a partnership consisting of more than three persons, a partnership all of whose members are companies and an unincorporated body which consists entirely of companies (see DISP 2.4.3 R (2)(aa)).8

DISP 2.4.5G

If a firm, licensee8 or VJ participant is in any doubt about the eligibility of a business, charity or trust, it should treat the complainant as if it were eligible. If the complaint is referred to the Financial Ombudsman Service, the Ombudsman will determine eligibility by reference to appropriate evidence, such as audited accounts or VAT returns.

DISP 2.4.6G

For the purposes of DISP 2.4.3 R(1)(b), a subsidiary of a corporate group (as defined in section 262(1) of the Companies Act 1985) will be eligible only where the corporate group as a whole meets the turnover test.

Eligible complainants: customers

DISP 2.4.7R

A person is an eligible complainant if:

  1. (1)

    he is or has been a customer of a firm, licensee8 or VJ participant;

  2. (2)

    the complaint arises out of matters relevant to his being or having been a customer of the firm, licensee8 or VJ participant; and

  3. (3)

    he falls into one of the classes of person in DISP 2.4.3 R(1).

Eligible complainants: potential customers

DISP 2.4.8R

A person is an eligible complainant if:

  1. (1)

    the complaint arises out of a firm's, licensee's8 or VJ participant's actions or failure to act for the complainant in his capacity as a potential customer of the firm, licensee8 or VJ participant; and

  2. (2)

    he falls into one of the classes of person in DISP 2.4.3 R(1).

DISP 2.4.9G

DISP 2.4.8 R is intended to enable a potential customer to use the Financial Ombudsman Service where the complaint involves an allegation that he has suffered or may suffer financial loss, material distress or material inconvenience as a result of a firm's, licensee's8 or VJ participant's wrongful act or omission (for example, where, as a result of maladministration or illegal discrimination, a service has not been provided). A complaint about the legitimate exercise of a firm's, licensee's8 or VJ participant's commercial judgment may be dismissed by an Ombudsman without consideration of its merits under DISP 3.3.1 R(11).

Eligible complainants: indirect complaints

DISP 2.4.10R

A person is an eligible complainant if:

  1. (1)

    he is not, and has not been, a customer or potential customer of the firm, licensee8 or VJ participant in relation to the subject matter of the complaint; and

  2. (2)

    he has a complaint against the firm, licensee8 or VJ participant which either:

    1. (a)

      arises out of a relationship which he has with the firm, licensee8 or VJ participant as described in DISP 2.4.11 R or DISP 2.4.12 R (4); or1

    2. (b)

      is derived from another person and which arises from any of the circumstances described in DISP 2.4.12 R; and

  3. (3)

    he falls into one of the classes of persons in DISP 2.4.3 R(1).

DISP 2.4.11R

The relationships with the firm, licensee8 or VJ participant relevant for DISP 2.4.10 R(2)(a) are:

  1. (1)

    the complainant has given the firm, licensee8 or VJ participant a guarantee or security for a mortgage ,4 loan, actual or prospective regulated consumer credit agreement or actual or prospective regulated consumer hire agreement, or any linked transaction as defined in the Consumer Credit Act 1974 (as amended)8; or

    4
  2. (2)

    the complainant has relied in the course of his business on a cheque guarantee card issued by the firm or VJ participant; or

  3. (3)

    the complainant is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the firm or VJ participant for someone elses account; or1

  4. (4)

    the complainant is the recipient of a banker's reference given by the firm or VJ participant; or

  5. (5)

    the complainant is the holder of units in a collective investment scheme and the firm or VJ participant is the operator or depositary of the scheme; or84

    8
  6. (6)

    the complainant is a person about whom information relevant to his financial standing is or was held by the firm4, licensee or VJ participant in operating a credit reference agency as defined by section 145(8) of the Consumer Credit Act 1974 (as amended); or8

  7. (7)

    the complainant is a person from whom the firm4, licensee or VJ participant has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145 (7) of the Consumer Credit Act (1974) (as amended).8

DISP 2.4.12R

The circumstances relevant for DISP 2.4.10 R(2)(b) are:

  1. (1)

    that the complainant is a beneficiary under a trust or estate of which the firm or VJ participant is trustee or personal representative; or

  2. (2)

    that the complainant is a person for whose benefit a contract of insurance was taken out or was intended to be taken out; or

  3. (3)

    that the complainant is a person on whom the legal right to benefit from a claim under a contract of insurance has been devolved by contract, statute or subrogation or;1

  4. (4)

    that the complainant is the beneficial owner of units in a collective investment scheme, and the firm or the VJ participant is the operator or depositary of the scheme; or31

    3
  5. (5)

    that the complainant is a beneficiary of, or has a beneficial interest in, a personal pension scheme or stakeholder pension scheme.3

DISP 2.4.12AR

In respect of a complaint under the Voluntary Jurisdiction relating to National Savings and Investments' business under DISP 2.6.9 R (9), where the complainant is not otherwise eligible in accordance with DISP 2.4, the Ombudsman may, nonetheless, if he considers it appropriate, treat the complainant as an eligible complainant, if he or she should have been entitled to refer an equivalent complainant to the Adjudicator for National Savings or, as the case may be, the Parliamentary Commissioner for Administration immediately before the Voluntary Jurisdiction began to cover National Savings and Investments' business, provided that the complainant wishes to have the complaint dealt with under the Financial Ombudsman Service.

DISP 2.4.13G

DISP 2.4.12 R(2) and(3) include, for example, employees covered by a group permanent health policy taken out by an employer, which provides in the insurance contract that the policy was taken out for the benefit of the employee. They do not include, for example, complaints about the actions of the insurer of the other driver in a car accident,1

DISP 2.4.14G

In respect of a relevant new complaint or a relevant transitional complaint, where the complainant is not eligible in accordance with DISP 2.4, article 3(3) of the Ombudsman Transitional Order and article 2(3) of the Mortgages and General Insurance Complaints Transitional Order provides that the Ombudsman may, nonetheless, if he considers it appropriate, treat the complainant as an eligible complainant if he or she would have been entitled to refer an equivalent complaint to the former scheme in question immediately before commencement, provided that the complainant wishes to have the complaint dealt with under the new scheme.2

DISP 2.4.15G

Article 3(4) of the Ombudsman Transitional Order provides that, in the case of a relevant new complaint, where the former scheme in question is the Insurance Ombudsman Scheme, a complainant is not to be treated as an eligible complainant unless:

  1. (1)

    he is an individual; and

  2. (2)

    the complaint does not concern aspects of a policy relating to a business or trade carried on by him.

DISP 2.4.15AG

2Article 2(4) of the Mortgages and General Insurance Transitional Order provides that, in the case of a relevant transitional complaint, where the former scheme in question is the GISC facility, a complainant is not to be treated as an eligible complainant unless:

  1. (1)

    he is an individual; and

  2. (2)

    he is acting otherwise than solely for the purposes of his business.

DISP 2.4.15BG

2Article 2(5) of the Mortgages and General Insurance Transitional Order provides that, in the case of a relevant transitional complaint, where the former scheme in question is the MCAS scheme, a complainant is not to be treated as an eligible complainant if:

  1. (1)

    the complaint does not relate to a breach of the Mortgage Code published by the Council of Mortgage Lenders;

  2. (2)

    the complaint concerns physical injury, illness, nervous shock or their consequences; or

  3. (3)

    the complainant is claiming a sum of money that exceeds £100,000.

Representatives of eligible complainants

DISP 2.4.16R

A complaint may be brought on behalf of an eligible complainant, or a deceased person who would have been an eligible complainant, by a person authorised by the eligible complainant or authorised by law.

DISP 2.4.17R

It is immaterial whether the person authorised to act on behalf of an eligible complainant under DISP 2.4.16 R:

  1. (1)

    can satisfy any of the criteria applicable to the person under DISP 2.4.3 R(1); or

  2. (2)

    has a claim of his own, or is acting for another person against the firm, licensee8 or VJ participant; or

  3. (3)

    is or was a customer or potential customer of the firm, licensee8 or VJ participant.