DISP App 1.8 Extent to which awards are binding
Under article 6, except in the circumstances set out in DISP App 1.8.2 G to DISP App 1.8.6 G, the Ombudsman will, in respect of relevant existing complaints, provide the firm and the complainant with a written statement of his determination (including reasons) in accordance with section 228(3)-(9) of the Act (see DISP 3.8.3 R) and if the complainant notifies the Ombudsman, within the time period specified, that he accepts the determination, it is binding on both parties and final.
Under article 6(7), where the former scheme in question was the FSA scheme and the relevant existing complaint was, at commencement, subject to arbitration in accordance with that scheme, the extent to which the determination of the complaint under the new scheme is binding and final depends on the terms of the arbitration. Where a complaint under the FSA scheme was not subject to arbitration at commencement, the determination of the case under the new scheme is not binding on the firm or the complainant. The requirements in section 228 (4)(c) and (5) to (7) of the Act do not apply in relation to the complaint.
Under article 6(8), where the former scheme in question was the SFAscheme:
- (1)
if the relevant existing complaint has not been submitted to arbitration under that scheme, and would not have been eligible to be so submitted under that scheme as it had effect immediately before commencement (disregarding any requirement for certification by the SFA Complaints Bureau that the complaint had not been resolved by conciliation), the determination of the complaint under the Financial Ombudsman Service is not binding on the firm or the complainant;
- (2)
if the relevant existing complaint has been submitted to arbitration under the SFA scheme, or would have been eligible to be so submitted under that scheme as it had effect immediately before commencement (disregarding any such requirement), the determination of the complaint under the Financial Ombudsman Service is binding on the firm and the complainant and final, but if the complaint has been submitted to arbitration, the terms of arbitration are otherwise unaffected;
and the requirements in section 228(4)(c) and (5) to (7) of the Act do not apply in relation to the complaint.
Under article 6(9), where the former scheme in question was the Building Societies Ombudsman Scheme and the relevant existing complaint was, at commencement, subject to arbitration in accordance with that scheme, the extent to which the determination of the complaint under the Financial Ombudsman Service is binding and final depends on the terms of the arbitration (which remain unaffected), and the requirements in section 228(4)(c) and (5) to (7) of the Act do not apply in relation to the complaint.
Under article 6(10), where the former scheme in question was the Building Societies Ombudsman Scheme and the firm would have been relieved of its obligation to comply with a determination under that scheme if it had complied with conditions as to the giving of notice of its non-fulfilment of the obligations imposed by the determination, the determination of the complaint under the Financial Ombudsman Service is (notwithstanding section 228(5) of the Act) not binding on the firm if it complies with equivalent conditions. (This preserves the "publicity option" under the Building Societies Ombudsman Act 1986 in respect of relevant existing complaints.)
The effect of article 6(2) and 6(11) taken together is that, where the former scheme in question was the IMRO scheme, the determination will be binding on both parties subject to the complainant's agreement, unless, before commencement, the complaint has been determined by a former ombudsman under that scheme and the former ombudsman has offered the complainant adjudication (see DISP App 1.9.1 G-DISP App 1.9.2 G).