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DISP 2.7 Is the complainant eligible?

DISP 2.7.1 R RP

A complaint may only be dealt with under the Financial Ombudsman Service if it is brought by or on behalf of an eligible complainant.127

1 27
DISP 2.7.2 R RP

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. It is immaterial whether the person authorised to act on behalf of an eligible complainant is himself an eligible complainant.127

Eligible complainants

DISP 2.7.3 R RP

An eligible complainant must be a person that is:127

  1. (1)

    a consumer3; or19

    3
  2. (2)

    a micro-enterprise3 ;

    3
    1. (a)

      3in relation to a complaint relating wholly or partly to payment services, either at the time of the conclusion of the payment service contract or at the time the complainant refers the complaint to the respondent; or

    2. (b)

      otherwise, at the time the complainant refers the complaint to the respondent; or19

  3. (3)

    a charity which has an annual income of less than £6.519 million at the time the complainant refers the complaint to the respondent; or19

    10
  4. (4)

    a trustee of a trust which has a net asset value of less than £519 million at the time the complainant refers the complaint to the respondent; or10

    10
  5. (5)

    (in relation to CBTL business) a CBTL consumer; or19

    10
  6. (6)

    a small business at the time the complainant refers the complaint to the respondent; or19

  7. (7)

    a guarantor.19

DISP 2.7.4 G RP
1 27

In determining whether an enterprise19 meets the tests for being a micro-enterprise or a small business19, account should be taken of the enterprise’s 'partner enterprises' or 'linked enterprises' (as those terms are defined in the Micro-enterprise Recommendation). For example, where a parent company holds a majority shareholding in a complainant, if the parent company does not meet the tests for being a micro-enterprise or a small business19 then neither will the complainant.

[Note: articles19 1 and 3 to 619 of the Annex to the Micro-enterprise Recommendation].127

3
DISP 2.7.5 G RP

If a respondent is in 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.127

DISP 2.7.5A R

19A guarantor shall be an eligible complainant only to the extent that their complaint arises from matters relevant to the relationship with the respondent referred to in DISP 2.7.6R(10).

DISP 2.7.6 R RP

To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent:127

  1. (1)

    the complainant is (or was) a customer,629payment service user3 or electronic money holder629 of the respondent;

  2. (2)

    the complainant is (or was) a potential customer,629payment service user3 or electronic money holder629 of the respondent;

  3. (2A)

    the complainant is (or was) a payer in a payment transaction in relation to which the respondent is (or was) the payee’spayment service provider, provided the complaint relates to the respondent’s obligations under regulation 90(3) of the Payment Services Regulations;18

  4. (2B)

    the complainant is a person that has transferred funds as a result of an alleged authorised push payment fraud and both:18

    1. (a)

      the respondent is (or was) involved in the transfer of the funds; and18

    2. (b)

      the complaint is not a PSD complaint;18

  5. (3)

    the complainant is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is:731

    731
    1. (a)

      the operator of a scheme;731 or12

    2. (b)

      the depositary of an authorised fund; or731

    3. (c)

      the depositary of a charity AIF;731 or12

    4. (d)

      the depositary of an LTIF20;

      12
  6. (3A)

    the complainant is the holder, or the beneficial owner, of units or shares in an AIF that is not a collective investment scheme12 where the respondent is:731

    1. (a)

      the AIFM of an unauthorised AIF (other than a body corporate);731 or12

    2. (b)

      the AIFM or depositary of a LTIF20 (other than a body corporate)12; or731

    3. (c)

      the AIFM or depositary of a charity AIF (other than a body corporate)12;731

  7. (4)

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

  8. (5)

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

  9. (6)

    the complainant is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

  10. (7)

    the complainant relied in the course of his business on a cheque guarantee card issued by the respondent;

  11. (8)

    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 respondent for someone else's account;

  12. (9)

    the complainant is the recipient of a banker's reference given by the respondent;

  13. (10)

    the complainant gave the respondent a guarantee or security for:

    1. (a)

      a mortgage;

    2. (b)

      a loan;

    3. (c)

      an actual or prospective regulated credit agreement;832

      832
    4. (d)

      an actual or prospective regulated consumer hire agreement; or

    5. (e)

      any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

  14. (11)

    the complainant is a person about whom information relevant to his financial standing is or was held by the respondent in providing credit references;832

    832
  15. (11A)

    the complainant is a person about whom information relevant to his financial standing is or was held by the respondent in providing credit information; 11

  16. (11B)

    13the complainant is a person about whom specified information was provided to a person in relation to a finance application;

  17. (12)

    the complainant is a person:282

    282
    1. (a)

      from whom the respondent has sought to recover payment under acredit agreement or consumer hire agreement832 (whether or not the respondent is a party to the agreement); or305282

      832305
    2. (b)

      in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under acredit agreement or consumer hire agreement832 in carrying on debt administration;832282

      832832
  18. (13)

    the complainant is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;4

  19. (14)

    (where the respondent is a dormant account fund operator) the complainant is (or was) a customer629 of a bank or building society which transferred any balance from a dormant account to the respondent; 4

    629
  20. (15)

    the complainant is either a borrower or a lender under a P2P agreement and the respondent is the operator of an electronic system in relation to lending.832

  21. (16)

    15the complainant is a client (where the respondent is an ISPV).

  22. (17)

    the complainant is a customer of the respondent in relation to regulated claims management activity.17

DISP 2.7.7 G RP
1 27
  1. (1)

    12718DISP 2.7.6R (5)and DISP 2.7.6R (6) 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.

  2. (2)

    DISP 2.7.6R(2B) includes any complaint that the respondent did not do enough to prevent, or respond to, an alleged authorised push payment fraud. 18

DISP 2.7.7A R

16In addition, an individual is an eligible complainant if:

  1. (1)

    they have been identified by the respondent as a politically exposed person, a family member of a politically exposed person, or a known close associate of a politically exposed person; and

  2. (2)

    their complaint:

    1. (a)

      is that such identification is incorrect; or

    2. (b)

      relates to an act or omission by the respondent in consequence of such identification.

DISP 2.7.8 G RP

1 27In the Compulsory Jurisdiction, under the Ombudsman Transitional Order, the Mortgages and General Insurance Complaints Transitional Order and Claims Management Order17, where a complainant:

  1. (1)

    wishes to have a relevant new complaint, a relevant transitional complaint or a relevant new claims management complaint17 dealt with by the Ombudsman; and

  2. (2)

    is not otherwise eligible; but

  3. (3)

    would have been entitled to refer an equivalent complaint to the former scheme in question immediately before the relevant17 order came into effect;

if the Ombudsman considers it appropriate, he may treat the complainant as an eligible complainant.

Exceptions

DISP 2.7.9 R RP

1 27The following are not eligible complainants:

  1. (1)

    (in all jurisdictions) a firm, payment service provider,3electronic money issuer, 629CBTL firm, designated credit reference agency, designated finance platform13 or VJ participant whose complaint relates in any way to an activity which:

    8321110
    1. (a)

      the firm itself has permission to carry on; or

    2. (ab)

      3the firm,629payment service provider, 10electronic money issuer,11CBTL firm,13designated credit reference agency11 or designated finance platform13 itself is entitled to carry on under the Payment Services Regulations,11 the Electronic Money Regulations,11 the MCD Order,13 the Small and Medium Sized Business (Credit Information) Regulations11or the Small and Medium Sized Business (Finance Platforms) Regulations13; or629

      62910629101010
    3. (b)

      the VJ participant itself conducts;

      832

and which is subject to the Compulsory Jurisdiction or the Voluntary Jurisdiction;

8 32
  1. (2)

    (in the Compulsory Jurisdiction) a complainant, other than a trustee of a pension scheme trust, who was:

    1. (a)

      a professional client; or

    2. (b)

      an eligible counterparty;

    in relation to the firm and activity in question at the time of the act or omission which is the subject of the complaint.14

  2. (3)

    [deleted]832

DISP 2.7.9A R RP

9 33 DISP 2.7.9 R (1) and DISP 2.7.9 R (2) do not apply to a complainant who is a consumer in relation to the activity to which the complaint relates.

DISP 2.7.10 G RP

1 27In the Compulsory Jurisdiction, in relation to relevant new complaints under the Ombudsman Transitional Order and relevant transitional complaints under the Mortgages and General Insurance Complaints Transitional Order:

  1. (1)

    where the former scheme in question is the Insurance Ombudsman Scheme, a complainant is not to be treated as an eligible complainant unless:

    1. (a)

      he is an individual; and

    2. (b)

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

  2. (2)

    where the former scheme in question is the GISC facility, a complainant is not to be treated as an eligible complainant unless:

    1. (a)

      he is an individual; and

    2. (b)

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

  3. (3)

    where the former scheme in question is the MCAS scheme, a complainant is not to be treated as an eligible complainant if:

    1. (a)

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

    2. (b)

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

    3. (c)

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