References in this chapter to "firms" are to be construed, where relevant, as including:

1. (1)

   in accordance with the Ombudsman Transitional Order, unauthorised persons subject to the Compulsory Jurisdiction in relation to relevant complaints; and

2. (2)

   as a result of section 226 of the Act, unauthorised persons who were formerly firms in respect of complaints about acts or omissions which occurred at the time when they were firms, provided that the Compulsory Jurisdiction rules were in force in relation to the activity in question.

The purpose of this appendix is to describe how FOS Ltd must handle relevant existing complaints (that is, the partly completed complaints which it inherits from the former schemes at commencement under the Ombudsman Transitional Order). Complaints which firms (as opposed to the former schemes) have partly completed at commencement will be handled as described in DISP 1 (Complaint handling procedures for firms) (see, in particular, DISP 1.4.6 R).

Relevant existing complaints will be referred by the former schemes to FOS Ltd for completion at commencement. Article 2 of the Ombudsman Transitional Order provides that FOS Ltd will complete the handling of these cases, but requires that, in a significant number of respects, it must do this in accordance with the requirements of the relevant former scheme.

This appendix describes the ways in which FOS Ltd is required to treat these complaints differently from the other complaints which are subject to DISP 1 to DISP 5. Apart from these exceptions, the rules in DISP 2 to DISP 5 and the statutory provisions in sections 225-234 of the Act apply as they do to other complaints.

1. (1)

   Article 2 of the Ombudsman Transitional Order requires that, irrespective of whether the conditions set out in section 226(2) of the Act are met (see DISP 2.2.1 G), a complaint which:

   1. (a)

      was referred to a former scheme (other than the Personal Insurance Arbitration Service) at any time before commencement, by a person who was at that time entitled, under the terms of the former scheme, to refer such a complaint (whether described in that scheme as the making of a complaint, the referral of a dispute, the submission of a claim, or otherwise), and

   2. (b)

      has not, before commencement, been rejected, withdrawn, settled or determined, by the former Ombudsman (whether by a substantive decision, or by closure of the case without a substantive decision);

is to be dealt with under the Financial Ombudsman Service (and not the former scheme).

1. (2)

   These complaints are described as relevant existing complaints.

Article 2 of the Ombudsman Transitional Order provides that a complaint is not to be treated as determined before commencement if the determination was, at commencement, subject to (or capable of being subject to) an appeal, a reference to arbitration or similar procedure.

The definition of a relevant existing complaint excludes complaints referred to the Personal Insurance Arbitration Service before commencement, which will be completed by the Personal Insurance Arbitration Service, not FOS Ltd. It also excludes complaints about pre-commencement investment business conducted by firms which were formerly authorised by a recognised professional body. These will be handled by the relevant professional body.

Under article 2(1)(a) of the Ombudsman Transitional Order, a person will be treated under the Financial Ombudsman Service as an eligible complainant in respect of a relevant existing complaint, if he was entitled, under the terms of the former scheme, to refer such a complaint at the time when the complaint was referred to that scheme.

Article 4(2) of the Ombudsman Transitional Order requires an Ombudsman to extend the time limits set under DISP 2.3.1 R(1)(b) and (c) in respect of a relevant existing complaint where the effect of that extension is that the time limit applying to the complaint is the same as that which would have applied under the former scheme in question as it had effect immediately before commencement.

Article 5(2)(a) provides that FOS Ltd's power to specify in its scheme rules the matters to be taken into account in making determinations does not apply to relevant existing complaints (see DISP 3.8.1 R).

Article 5(2)(c) requires the Ombudsman, in deciding whether a relevant complaint (including a relevant existing complaint) is to be dismissed without consideration of its merits under the scheme rules, to take into account whether an equivalent complaint would have been so dismissed under the former scheme in question, as it had effect immediately before commencement.

Article 6(1) disapplies, in respect of relevant existing complaints, the provisions in the Act relating to the criteria for determining complaints in section 228(2) and those relating to awards in section 229 (with the exception of those in section 229(8)(b) and paragraph 16 of Schedule 17 relating to the enforceability of money awards and those in section 229(9) and (10) relating to the enforceability of directions made by the Ombudsman). It also disapplies the provisions relating to costs awards in section 230, except to the extent referred to in DISP App 1.11.1 G.

Apart from this, section 228 of the Act applies in relation to relevant existing complaints as it applies to other complaints which are subject to the Compulsory Jurisdiction.

Article 6(2) provides that a relevant existing complaint is to be determined (so far as practicable) by reference to such criteria as would have applied to the determination of the complaint by the former ombudsman under the former scheme in question immediately before commencement (provided that where the former scheme in question is the FSA scheme, the criteria are those which would have applied to the determination of the complaint by an independent investigator under that scheme at that time).

An exception is, however, made in respect of relevant existing complaints about former IMRO members inherited from the Investment Ombudsman under the IMRO scheme in order to reflect the way in which those complaints have been determined in practice under that scheme. The effect of article 6(2) and 6(11) taken together is that, as with all new complaints received after commencement, these will be determined according to what is, in the opinion of the Ombudsman, fair and reasonable in all the circumstances of the case and will be binding on both parties subject to the complainant's agreement.

The remedy that the Ombudsman can impose in determining a relevant existing complaint is limited by article 6(3) to such remedy as could have been included in a determination (whether described as a determination, award, recommendation or otherwise) made by the former Ombudsman under the former scheme in question immediately before commencement.

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. (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. (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).

Under article 8, where, before commencement, a relevant existing complaint has been determined by a former ombudsman under the IMRO scheme and that former ombudsman has offered adjudication:

1. (1)

   if the matter is already subject to adjudication at commencement, the relevant provisions of the former scheme will continue to apply so far as practicable, with references to the Investment Ombudsman or "the Ombudsman" being read as references to FOS Ltd or an Ombudsman, as appropriate; or

2. (2)

   if the matter has not been referred to adjudication before commencement, but the complainant accepts adjudication, FOS Ltd must appoint an adjudicator to determine the matter, and if the complainant agrees to the appointment of the adjudicator, the firm must concur in the reference to adjudication.

The relevant provisions of the IMRO scheme will apply, so far as practicable, as they would have applied to adjudication under that scheme, with references to the Investment Ombudsman or "the Ombudsman" being read as references to FOS Ltd or an Ombudsman, as appropriate.

Under article 9, where a relevant existing complaint has been determined before commencement by a person appointed as an arbitrator under the SFAscheme:

1. (1)

   if, at commencement, that determination is the subject of an appeal, or an application for leave to appeal, under that scheme which has not been determined or withdrawn, the relevant provisions of that scheme will continue to apply to that appeal or application (and any ensuing appeal) so far as practicable;

2. (2)

   if, at commencement, an application for leave to appeal against the determination was capable of being entertained under that scheme, the relevant provisions of that scheme will apply, so far as practicable, to the making of any such application for leave and any ensuing appeal, as they would have applied to an application for leave or an appeal before commencement.

FOS Ltd may appoint such persons, on such terms and for such duration, as it thinks fit to hear any appeal or application for leave to appeal made after commencement and references in the relevant provisions of the SFA scheme to the SFA or its Arbitration Secretariat will be read as references to FOS Ltd.

Under article 10, where a complaint has been determined before commencement under the Building Societies Ombudsman Scheme, and, at commencement, a case either has been stated with respect to that determination for the opinion of the High Court or Court of Session under section 84(5) to (7) of the Building Societies Act 1986 and no decision has been reached on the case or could be stated under those provisions, those subsections continue to apply as if they provided for the Court to direct that the complaint be dealt with under the Financial Ombudsman Service as a relevant existing complaint.

Where the Ombudsman makes a determination which includes an award against a firm of compensation payable to the complainant, it is enforceable (under article 6(4)) in the same way as a money award made under the Compulsory Jurisdiction.

Where the Ombudsman makes a determination which includes a requirement for the firm to take any steps in relation to the complainant, it is enforceable (under article 6(5)) in the same way as a direction made under the Compulsory Jurisdiction.

Where the former scheme in question, as it had effect immediately before commencement, included provision for the award of costs, the Ombudsman may, under article 6(6), on determining the relevant existing complaint, award costs in accordance with that provision (irrespective of whether those costs were incurred, or relate to anything done, before or after commencement) and section 230(6) and (7) and paragraph 16 of Schedule 17 to the Act apply in relation to the enforcement of such an award of costs in the same way as they apply to awards of costs made under the Financial Ombudsman Service procedures.

Under DISP 5, firms will be subject to case fees in respect of relevant complaints. If FOS Ltd deals with a relevant existing complaint against a person who is not authorised by the FSA, a special case fee will be charged (see DISP 5 (Financial Ombudsman Service Funding Rules)) and this will be recoverable as a debt to FOS Ltd in the same way as case fees relating to complaints about firms.

The time limits, record keeping and reporting requirements in DISP 1.4 (Time limits for dealing with a complaint) and DISP 1.5 (Record keeping and reporting) do not apply to firms in respect of relevant existing complaints since these, by definition, will already have been referred to a former scheme.