Related provisions for DISP 1.7.3
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This chapter applies to every firm in respect of activities carried on from an establishment maintained by the firm (or its appointed representative) in the United Kingdom, except:(1) (a) a firm that is exempt under DISP 1.1.7 R; (b) a UCITS qualifier;(c) an authorised professional firm in so far as its non-mainstream regulated activities are concerned; and(d) 1a credit union; or(2) in relation to the Society of Lloyd's, members of the Society and managing agents, DISP 1 applies
(1) A firm which does not conduct business with eligible complainants and has no reasonable likelihood of doing so is exempt from DISP 1.2 - DISP 1.7, if:(a) it has notified the FSA in writing that those conditions apply ; and(b) the conditions in fact continue to apply.(2) The exemption takes effect from the date on which the notice was received by the FSA.(3) In (1), conducting business means carrying on any of the activities to which the rules in DISP 2.6 apply with or for
The purpose of this chapter is to set out the rules relating to the internal handling of complaints by firms, including the procedures which a firm must put in place; the time limits within which a firm must deal with a complaint; the records of a complaint which a firm must make and retain; and the requirements on a firm to report information about complaints to the FSA. This is to ensure that complaints are handled fairly, effectively and promptly, and resolved at the earliest
(1) Only an Ombudsman may determine a complaint or decide the circumstances in which information may be disclosed under DISP 3.10.1 R (3).(2) The Ombudsman may designate members of the staff of FOS Ltd to exercise any of the other powers of the Ombudsman relating to the reference, investigation or consideration of a complaint.(3) Where any person is so designated, DISP 2 - DISP 4 apply as if any reference to "the Ombudsman" included a reference to that person.
(1) The Ombudsman cannot consider a complaint (except as described in (2)) if the complainant refers it to the Financial Ombudsman Service:(a) less than eight weeks after receipt of the complaint by the firm or VJ participant, unless the firm or VJ participant has already sent the complainant its final response; or(b) more than six months after the date on which the firm or VJ participant sends the complainant its final response advising him that he may refer his complaint to
1If the complaint relates to the sale of an endowment policy for the purpose of achieving capital repayment of a mortgage, the receipt by the complainant of a letter which states that there is a risk (rather than a high risk) that the policy would not, at maturity, produce a sum large enough to repay the target amount is not, itself, sufficient to cause the three year time period in DISP 2.3.1 R (1)(c) to start to run.
In relation to DISP 2.3.1 R (1)(b) and (c), article 4(2) of the Ombudsman Transitional Order requires an Ombudsman to extend the time limit in respect of a relevant new complaint referred to the Financial Ombudsman Service not later than twelve months after commencement, so 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.
For the purposes of DISP 2.3.1 R (2), an example of an exceptional circumstance might be where the complainant has been or is incapacitated or where the firm or VJ participant has failed, in its final response, to inform the complainant that he may refer his complaint to the Financial Ombudsman Service or that he must do so within six months.
Under
DISP 5.6.1 R
a firm or VJ participant is liable to pay a case fee in respect of chargeable cases. However, in some circumstances, the Ombudsman may conclude that a firm or VJ participant should have more time to resolve a complaint before a case fee is incurred (for example, where there has been delay in obtaining information from third parties or where the Ombudsman considers that the complainant has not fully cooperated with the firm or VJ participant in the investigation
DISP 2.3.1 R (1)(c) does not apply where:(1) the time limit has been extended under a scheme for review of past business approved by the Treasury under section 404 of the Act (Schemes for reviewing past business); or(2) the complaint concerns a contract or policy which is the subject of a review directly or indirectly under:(a) the terms of the Statement of Policy on 'Pension transfers and Opt-outs' issued by the FSA on 25 October 1994; or(b) the terms of the policy statement
The territorial scope of the jurisdiction of the Voluntary Jurisdiction of the Financial Ombudsman Service also covers complaints about activities specified in DISP 2.6.9 R (1) to DISP 2.6.9 R (6) or activities ancillary to them carried on from an establishment elsewhere in the EEA if the following conditions are met:(1) the activity is directed wholly or partly at the United Kingdom (or part of it);(2) contracts governing the activity are, or (in the case of a potential customer)
The Voluntary Jurisdiction:(1) covers VJ participants operating from an establishment in the United Kingdom;(2) also covers complaints that concern business conducted by VJ participants operating elsewhere in the EEA, but only in relation to the activities specified in DISP 2.6.9 R (1) to DISP 2.6.9 R (6) subject to the conditions in DISP 2.7.2 R (1) to DISP 2.7.2 R (3).
Recognised bodies may receive complaints from time to time from their members and other people, both about the conduct of members and about the recognised body itself. A UK recognised body will need to have satisfactory arrangements to investigate these complaints in order to satisfy the relevant recognition requirements (see REC 2.15 and REC 2.16).
The Act does not provide a mechanism for appeals to the FSA from decisions by recognised bodies in relation to complaints. However, the FSA is required by section 299 of the Act (Complaints about recognised bodies) to have arrangements to investigate complaints (called relevant complaints in the Act) which it considers relevant to the question of whether a recognised body should remain recognised as such. This section describes aspects of the FSA's arrangements for investigating
Where the FSA receives a complaint about a recognised body, it will, in the first instance, seek to establish whether the complainant has approached the recognised body. Where this is not the case, the FSA will ask the complainant to complain to the recognised body. Where the complainant is dissatisfied with the handling of the complaint, but has not exhausted the recognised body's own internal complaints procedures (in the case of a complaint against a UK recognised body, including
When it is considering a relevant complaint, the FSA will make its own enquiries as appropriate with the recognised body, the complainant and other persons. It will usually ask the recognised body and the complainant to comment upon any preliminary or draft conclusions of its review and to confirm any matters of fact at that stage.
On receipt of a complaint (and subsequently if necessary) the Ombudsman must have regard to the following matters:(1) whether or not the complaint meets the criteria in DISP 2.2 (Which complaints can be dealt with under the Financial Ombudsman Service?);(2) whether or not the complaint is within the time limits in DISP 2.3 (Time limits for referral of complaints to the Financial Ombudsman Service);(3) whether or not the complainant is an eligible complainant; and(4) whether or
In the case of relevant new complaints, the Ombudsman will take account of the relevant criteria under the Ombudsman Transitional Order, referred to in DISP 2.2.2 G, and will extend the time limits in DISP 2.3, as required under article 4(2) of the Ombudsman Transitional Order and described in DISP 2.3.2 G.
Where the Ombudsman considers that the complaint or the complainant may be ineligible under the jurisdiction rules (see DISP 2 (Jurisdiction of the Financial Ombudsman Service)) he must give the complainant an opportunity to make representations before he reaches his decision and he must give reasons to the complainant for that decision and inform the firm of his decision.
Members of the Society of Lloyd's are treated as firms for the purposes of the Compulsory Jurisdiction (including the rules in DISP 1 relating to firms' complaints procedures) and are subject to DISP 1 as a result of the insurance market direction given in LLD 6.2.1 D, under section 316 of the Act (Direction by Authority). However, as set out in DISP 1.7, members will individually comply with DISP 1 if and only if all complaints by policyholders against members are dealt with
The records required by DISP 1.5.1 R are for the purposes of monitoring by the FSA and also to ensure that the firm is able to cooperate, as necessary, with the Financial Ombudsman Service. They should include:(1) the name of the complainant;(2) the substance of the complaint; and(3) any correspondence between the firm and the complainant, including details of any redress offered by the firm.
For the purpose of DISP 1.5.4 R (2), a closed complaint is a complaint:(1) where the firm has sent a final response; or(2) where the complainant has indicated in writing acceptance of the firm's earlier response; or(3) where DISP 1.4.9 R applies, provided that the complainant has not responded to the firm within eight weeks of the written response referred to in that rule.
The Ombudsman can consider a complaint under the Compulsory Jurisdiction only if it relates to an act or omission by a firm in the carrying on of one or more of the following activities (unless the provision described in DISP 2.6.3 R applies):(1) regulated activities;(2) lending money secured by a charge on land;(3) lending money (other than restricted credit);(4) paying money by a plastic card (other than a store card);(5) the provision of ancillary banking services (see DISP
The carrying on of an activity in DISP 2.6.1 R includes offering, providing or failing to provide and administering or failing to administer a service in relation to the activities covered by that rule. This includes the manner in which a firm has administered its business, provided that the business is an activity subject to the jurisdiction of the Financial Ombudsman Service.
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.
Schedule to the Recognition Requirements Regulations, Paragraph 9
(1) |
The [UK RIE] must have effective arrangements for the investigation and resolution of complaints arising in connection with the performance of, or failure to perform, any of itsregulatory functions. |
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(2) |
But sub-paragraph (1) does not extend to - |
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(a) |
complaints about the content of rules made by the [UK RIE], or |
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(b) |
complaints about a decision against which the complainant has the right to appeal under procedures of the kind mentioned in paragraph 8(2)(b). |
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(3) |
The arrangements must include arrangements for a complaint to be fairly and impartially investigated by apersonindependent of the [UK RIE], and for him to report on the result of his investigation to the [UK RIE] and to the complainant. |
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(4) |
The arrangements must confer on thepersonmentioned in sub-paragraph (3) the power to recommend, if he thinks appropriate, that the [UK RIE] - |
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(a) |
makes a compensatory payment to the complainant, |
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(b) |
remedies the matter complained of, |
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or takes both of those steps. |
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(5) |
Sub-paragraph (3) is not to be taken as preventing the [UK RIE] from making arrangements for the initial investigation of a complaint to be conducted by the [UK RIE].1 |
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In determining whether a UK recognised body has effective arrangements for the investigation and resolution of complaints arising in connection with the performance of, or failure to perform, any of its regulatory functions, the FSA may have regard to the extent to which the UK recognised body's resources and procedures enable it to:(1) acknowledge complaints promptly;(2) make an objective, prompt and thorough initial investigation of complaints;(3) provide a timely reply to the
In determining whether a UK recognised body's arrangements for the investigation of complaints include appropriate arrangements for the complaint to be fairly and impartially investigated by an independent person (a "complaints investigator"), the FSA may have regard to:(1) the arrangements made for appointing (and removing) a complaints investigator, including the terms and conditions of such an appointment and the provision for remuneration of a complaints investigator; (2)
A firm must, within four weeks of receiving a complaint, (unless DISP 1.4.3A R1 or DISP 1.4.9 R applies) send the complainant either:(1) a final response; or(2) a holding response, which explains why it is not yet in a position to resolve the complaint and indicates when the firm will make further contact (which must be within eight weeks of receipt of the complaint).
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