Related provisions for DISP 1.6.7
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638This chapter contains rules and guidance on how respondents should deal promptly and fairly with complaints in respect of business carried on from establishments in the United Kingdom or by certain branches of firms in the EEA. It is also relevant to those who may wish to make a complaint or refer it to the Financial Ombudsman Service.
(1) This chapter applies to a firm in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by it or its appointed representative in the United Kingdom.(2) For complaints relating to the MiFID business of a firm, the complaints handling rules and the complaints record rule:(a) apply to complaints from retail clients and do not apply to complaints from eligible complainants who are not retail clients; (b) also apply in
Where the subject matter of a complaint is subject to a review directly or indirectly under the terms of the policy statement for the review of specific categories of FSAVC business issued by the FSA on 28 February 2000, the complaints resolution rules, the complaints time limit rules, the complaints record rule and the complaints reporting rules will apply only if the complaint is about the outcome of the review.
(1) A firm falling within the Compulsory Jurisdiction which does not conduct business with eligible complainants and has no reasonable likelihood of doing so, can, by written notification to the
FSA
, claim exemption from the rules relating to the funding of the Financial Ombudsman Service, and from the remainder of this chapter.(2) Notwithstanding (1), the complaints handling rules and complaints record rule will continue to apply in respect of complaints concerning MiFID business.(3)
(1) This chapter does not prevent:(a) the use by a respondent of a third party administrator to handle or resolve complaints (or both); or(b) two or more respondents arranging a one-stop shop for handling or resolving complaints (or both) under a service level agreement.(2) These arrangements do not affect respondents' obligations as set out in DISP or the provisions relating to outsourcing by a firm set out in SYSC 8 and SYSC 13.
Members will individually comply with this chapter if and only if all complaints by policyholders against members are dealt with under the Lloyd's complaints procedures. Accordingly, certain of the obligations under this chapter, for example the obligation to report on complaints received and the obligation to pay fees under the rules relating to the funding of the Financial Ombudsman Service (FEES 5), must be complied with by the Society on behalf of members. Managing agents
(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.
On receipt of a complaint, a respondent must:(1) send the complainant a prompt written acknowledgement providing early reassurance that it has received the complaint and is dealing with it; and(2) ensure the complainant is kept informed thereafter of the progress of the measures being taken for the complaint's resolution.
The respondent must, by the end of eight weeks after its receipt of the complaint, send the complainant:(1) a final response; or(2) a written response which:(a) explains why it is not in a position to make a final response and indicates when it expects to be able to provide one;(b) informs the complainant that he may now refer the complaint to the Financial Ombudsman Service; (c)
(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, licensee29 or VJ participant, unless the firm, licensee29 or VJ participant has already sent the complainant its final response; or(b) more than six months after the date on which the firm, licensee29 or VJ participant sends the complainant its final response advising him
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, licensee29 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
FEES 5.5.1 R528
a firm, licensee29 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, licensee29 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, licensee29
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).
The following rules do not apply to a complaint that is resolved by a respondent by close of business on the business day following its receipt:(1) the complaints time limit rules; (2) the complaints forwarding rules; (3) the complaints reporting rules; and(4) the complaints record rule, if the complaint does not relate to MiFID business.
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 or licensee4 of his decision.
DISP 1 Annex 1 requires (for the relevant reporting period) information about:(1) the total number of complaints received by the firm, broken down according to the categories and generic product types described in DISP 1 Annex 1 which are relevant to the firm;(2) the total number of complaints closed by the firm:(a) within four weeks or less of receipt;(b) within four to eight weeks of receipt; and(c) more than eight weeks after receipt;(3) the total number of complaints:(a) upheld
For the purpose of DISP 1.10.2 R, when completing the return, the firm should take into account the following matters.(1) If a complaint could fall into more than one category, the complaint should be recorded in the category which the firm considers to form the main part of the complaint.(2) Under DISP 1.10.2R (3)(a), a firm should report any complaint to which it has given a
final response
which upholds the complaint, even if any redress offered is disputed by the complainant.
A closed complaint is a complaint where:(1) the firm has sent a final response; or(2) the complainant has indicated in writing acceptance of the firm's earlier response under DISP 1.6.4 R; or(3) for a firm which operates a two-stage complaints procedure, the complainant has not indicated that he remains dissatisfied within eight weeks of the response sent by the firm under DISP 1.6.5 R.
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.
(1) 2With effect from commencement, Part XVI of the Act (The Ombudsman Scheme), and in particular section 226 (Compulsory jurisdiction), applies to the carrying on of insurance business by members.(2) For the purposes of (1) 'insurance business' means the regulated activities of effecting or carrying out contracts of insurance written at Lloyd's.
Once a complaint has been received by a respondent, it must:(1) investigate the complaint competently, diligently and impartially;(2) assess fairly, consistently and promptly:(a) the subject matter of the complaint;(b) whether the complaint should be upheld;(c) what remedial action or redress (or both) may be appropriate;(d) if appropriate, whether it has reasonable grounds to be satisfied that another respondent may be solely or jointly responsible for the matter alleged in the
Factors that may be relevant in the assessment of a complaint under DISP 1.4.1R (2), include the following:(1) all the evidence available and the particular circumstances of the complaint;(2) similarities with other complaints received by the respondent;(3) relevant guidance published by the
FSA
, other relevant regulators, the Financial Ombudsman Service or former schemes; and(4) appropriate analysis of decisions by the Financial Ombudsman Service concerning similar complaints
A respondent that has reasonable grounds to be satisfied that another respondent may be solely or jointly responsible for the matter alleged in a complaint may forward the complaint, or the relevant part of it, in writing to that other respondent, provided it: (1) does so promptly; (2) informs the complainant promptly in a final response of why the complaint has been forwarded by it to the other respondent, and of the other respondent's contact details; and(3) where jointly responsible
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.
To aid consumer awareness of the protections offered by the provisions in this chapter, respondents must:(1) publish appropriate summary details of their internal process for dealing with complaints promptly and fairly; (2) refer eligible complainants in writingto the availability of these summary details
at, or immediately after, the point of sale; and(3) provide such summary details in writing to eligible complainants:(a) on request; and(b) when acknowledging a complaint
Schedule to the Recognition Requirements Regulations, Paragraph 9
2(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]. |
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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)
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