Related provisions for DISP 1.6.7
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639This 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.
The Ombudsman can consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by a firm in carrying on one or more of the following activities:(1) regulated activities
;(2) consumer credit activities;(3) lending money secured by a charge on land;(4) lending money (excluding restricted credit where that is not a
consumer credit activity
);(5) paying money by a plastic card (excluding a store card where that is not a
consumer credit activity
);(6)
The Ombudsman can also consider under the Compulsory Jurisdiction:630630(1) as a result of the Ombudsman Transitional Order, a relevant existing complaint or a relevant new complaint that relates to an act or omission by a firm or an unauthorised person which was subject to a former scheme immediately before commencement; or(2) as a result of the Mortgages and General Insurance Complaints Transitional Order, a relevant transitional complaint that relates to an act or omission
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
Where a complaint is determined in favour of the complainant, the Ombudsman's determination may include one or more of the following:17(1) a money award against the respondent; or1717(2) an interest award against the respondent; or1717(3) a costs award against the respondent; or1717(4) a direction to the respondent.17
A money award may be such amount as the Ombudsman considers to be fair compensation for one or more of the following:(1) financial loss (including consequential or prospective loss); or(2) pain and suffering; or(3) damage to reputation; or(4) distress or inconvenience;whether or not a court would award compensation.17
17Where the Ombudsman is determining what amount (if any) constitutes fair compensation as a money award in relation to a relevant new complaint or a relevant transitional complaint, the Ombudsman Transitional Order and the Mortgages and General Insurance Complaints Transitional Order require him to take into account what amount (if any) might have been expected to be awarded by way of compensation in relation to an equivalent complaint dealt with under the former scheme in question
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)
DISP 1.6.2 R does not apply if the complainant has already indicated in writing acceptance of a response by the respondent, provided that the response:28(1) informed the complainant how to pursue his complaint with the respondent if he remains dissatisfied; 28(2) referred to the ultimate availability of the Financial Ombudsman Service if he remains dissatisfied with the respondent's response;28
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
An eligible complainant must be a person that is:127(1) a private individual; (2) a business, which has a group annual turnover of less than ?1 million at the time the complainant refers the complaint to the respondent;(3) a charity which has an annual income of less than £1 million at the time the complainant refers the complaint to the respondent; or(4) a trustee of a trust which has a net asset value of less than £1 million at the time the complainant refers the complaint
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
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) the complainant is (or was) a customer of the respondent;(2) the complainant is (or was) a potential customer of the respondent;(3) the complainant is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;(4) the complainant
127In the Compulsory Jurisdiction, under the Ombudsman Transitional Order and the Mortgages and General Insurance Complaints Transitional Order, where a complainant:(1) wishes to have a relevant new complaint or a relevant transitional complaint dealt with by the Ombudsman; and(2) is not otherwise eligible; but(3) would have been entitled to refer an equivalent complaint to the former scheme in question immediately before the relevant transitional order came into effect;if the
127The following are not eligible complainants:(1) (in all jurisdictions) a firm,
licensee
or VJ participant whose complaint relates in any way to an activity which:(a) the firm itself has permission to carry on; or(ab) (b) the licensee or VJ participant itself conducts;and which is subject to the Compulsory Jurisdiction, the Consumer Credit Jurisdiction or the Voluntary Jurisdiction;(2) (in the Compulsory Jurisdiction) a complainant, other than a trustee of a pension scheme
127In 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) where the former scheme in question is the Insurance Ombudsman Scheme, a complainant is not to be treated as an eligible complainant unless:(a) he is an individual; and(b) the relevant new complaint does not concern aspects of a policy relating to a business
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.
19The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:(1) more than six months after the date on which the respondent sent the complainant its final response; or (2) more than: (a) six years after the event complained of; or (if later)(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;unless the complainant referred the complaint to
19The six-year and the three-year time limits do 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
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.
The Voluntary Jurisdiction covers only complaints about the activities of a VJ participant carried on from an establishment:519(1) in the United Kingdom; or(2) elsewhere in the EEA if the following conditions are met:(a) the activity is directed wholly or partly at the United Kingdom (or part of it);(b) contracts governing the activity are (or, in the case of a potential customer, would have been) made under the law of England and Wales, Scotland or Northern Ireland; and(c) the
15The Ombudsman may:(1) exclude evidence that would otherwise be admissible in a court or include evidence that would not be admissible in a court;(2) accept information in confidence (so that only an edited version, summary or description is disclosed to the other party) where he considers it appropriate;(3) reach a decision on the basis of what has been supplied and take account of the failure by a party to provide information requested; and(4) dismiss a complaint if a complainant
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
The Ombudsman can consider a complaint under the Voluntary Jurisdiction if:427(1) it is not covered by the Compulsory Jurisdiction or the Consumer Credit Jurisdiction; and427(2) it relates to an act or omission by a VJ participant in carrying on one or more of the following activities:(a) an activity carried on after 28 April 1988 which:(i) was not a regulated activity at the time of the act or omission, but(ii) was a regulated activity when the VJ participant joined the Voluntary
DISP 2.5.1R (2)(a)is for those that are subject to the Compulsory Jurisdiction for regulated activities but are not covered by the Ombudsman Transitional Order or the Mortgage and General Insurance Complaints Transitional Order. It enables the Financial OmbudsmanScheme to cover complaints about earlier events relating to those activities before they became regulated activities.4272427
DISP 2.5.1R (2)(b) is for those that were members of one of the former schemes replaced by the Financial Ombudsman Service immediately before commencement. It enables the
Financial Ombudsman Service5
to cover complaints that arise out of acts or omissions occurring after commencement for any activities which are not covered by the Compulsory Jurisdiction but that would have been covered by the relevant former scheme.4275
427The Voluntary Jurisdiction covers an act or omission that occurred before the VJ participant was participating in the Voluntary Jurisdiction, and whether the act or omission occurred before or after commencement, either:(1) if the complaint could have been dealt with under a former scheme; or(2) under the agreement by the VJ participant in the Standard Terms.
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
25Nothing in this appendix relieves firms of the obligation to consider the particular facts and circumstances of each complaint and to consider whether the assessment of loss and compensation should, in the light of those facts and circumstances, be carried out on a different basis. If, however, the facts and circumstances make it appropriate to do so, the FSA's expectation is that firms will apply the approach and standards set out in this appendix, and where they do not, the
17Where the Ombudsman is determining what is fair and reasonable in all the circumstances of a relevant new complaint or a relevant transitional complaint, the Ombudsman Transitional Order and the Mortgage and General Insurance Complaints Transitional Order require him to take into account what determination the former Ombudsman might have been expected to reach in relation to an equivalent complaint dealt with under the former scheme in question immediately before the relevant
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