Related provisions for DISP App 3.2.3
1 - 20 of 66 items.
1This section:
(1) applies to the MiFID complaints of a MiFID investment firm and does not apply to complaints that are not MiFID complaints;
(2) also applies to the MiFID complaints of a third country investment firm received from a retail client or an elective professional client but does not apply to complaints that are not MiFID complaints; and
(3) applies certain other provisions in DISP 1 to such complaints.
A MiFID complaint is, amongst other things, a complaint to which article 26 of the MiFID Org Regulation applies, being a complaint about:(1)
the provision of investment services or ancillary services to a client by an investment firm;(2)
the provision of one or more investment services to a client by a CRD credit institution;
(3) selling structured deposits to clients, or advising clients on them, where the sale or advice is provided by an investment firm or a CRD credit institution;(4)
In contrast to the other provisions in DISP 1 which generally apply to complaints from eligible complainants, subject to DISP 1.1A.6R:
(1) the obligations in this section that apply to the MiFID complaints of MiFID investment firms, apply to complaints from “clients” as defined in MiFID (which includes retail clients, professional clients and (in relation to eligible counterparty business) eligible counterparties; and(2)
the obligations in this section that apply to the MiFID
(1) Only the provisions in this section marked “EU” and DISP 1.1A.39R apply to a MiFID complaint received from a retail client, professional client or an eligible counterparty that is not an eligible complainant.(2)
But where the retail client, professional client or eligible counterparty is also an eligible complainant, all of the provisions in this section apply.
The table below sets out how DISP 1.1A applies to MiFID complaints relating to:
- (1)
the activities of a MiFID investment firm carried on from an establishment in the United Kingdom;
- (2)
the equivalent business of a third country investment firm where the complaint is received from a retail client or an elective professional client;
- (3)
activities carried on from a branch of a UK firm in another EEA State; and
- (4)
activities carried on from a branch of an EEA firm in the United Kingdom.
Table: Application of DISP 1.1A to the MiFID business of firms in the UK, and the equivalent business of third country investment firms, branches of UK firms and UK branches of EEA firms
(1) Provision |
(2) Provision applies to the MiFID business of a firm carried on from an establishment in the UK? |
(3) Provision applies to the equivalent third country business of a third country investment firm where the complaint is received from a retail client or an elective professional client? |
(4) Provision applies to a branch of a UK firm in another EEA State? |
(5) Provision applies to a branch of an EEA firm in the UK? |
1.1A.10EU |
Yes |
Yes |
Yes |
Yes |
1.1A.11R |
Yes |
Yes |
No |
Yes |
1.1A.12EU |
Yes |
Yes |
Yes |
Yes |
1.1A.13EU |
Yes |
Yes |
Yes |
Yes |
1.1A.14G |
Yes |
Yes |
Yes |
No |
1.1A.15G |
Yes |
Yes |
Yes |
No |
1.1A.16EU |
Yes |
Yes |
Yes |
Yes |
1.1A.17EU |
Yes |
Yes |
Yes |
Yes |
1.1A.18EU |
Yes |
Yes |
Yes |
Yes |
1.1A.19G |
Yes |
Yes |
Yes |
No |
1.1A.20R |
Yes |
Yes |
No |
Yes |
1.1A.21G |
Yes |
Yes |
No |
Yes |
1.1A.22R |
Yes |
Yes |
No |
No |
1.1A.23R |
Yes |
Yes |
No |
Yes |
1.1A.24EU |
Yes |
Yes |
Yes |
Yes |
1.1A.25EU |
Yes |
Yes |
Yes |
Yes |
1.1A.26R |
Yes |
Yes |
No |
Yes |
1.1A.27G |
Yes |
Yes |
No |
Yes |
1.1A.28R |
Yes |
Yes |
No |
Yes |
1.1A.29EU |
Yes |
Yes |
Yes |
Yes |
1.1A.30EU |
Yes |
Yes |
Yes |
Yes |
1.1A.31R |
Yes |
Yes |
No |
Yes |
1.1A.32G |
Yes |
Yes |
No |
Yes |
1.1A.33G |
Yes |
Yes |
No |
Yes |
1.1A.34G |
Yes |
Yes |
No |
Yes |
1.1A.35R |
Yes |
Yes |
No |
Yes |
1.1A.36R |
Yes |
Yes |
No |
Yes |
1.1A.37EU |
Yes |
Yes |
Yes |
Yes |
1.1A.38EU |
Yes |
Yes |
Yes |
Yes |
1.1A.39R |
Yes |
Yes |
No |
Yes |
1.1A.40R |
Yes |
Yes |
No |
No |
1.1A.41G |
Yes |
Yes |
No |
No |
1.1A.42R |
No |
No |
Yes |
No |
Notes |
||||
(1) The provisions marked “EU” in the table are ‘directly applicable’ which means they apply to all MiFID investment firms in relation to MiFID complaints by virtue of the MiFID Org Regulation. |
||||
(2) This table should be read in conjunction with the rules and guidance in DISP 1.1A.1R to DISP 1.1A.6R. |
||||
References in column (1) to a word or phrase used in those provisions marked “EU” have the meaning indicated in column (2) of the table below:
(1) |
(2) |
“complaint” |
|
“investment firm” and “firm” |
[Note: for the definition of “client” see recital (103) and article 4(1)(9) of MiFID]
Investment firms shall publish the details of the process to be followed when handling a complaint. Such details shall include information about the complaints management policy and the contact details of the complaints management function. This information shall be provided to clients or potential clients, on request, or when acknowledging a complaint.
[Note: article 26(2) of the MiFID Org Regulation]
The complaints management policy should be set out in a written document e.g. as part of a general fair treatment policy. It should be made available to all relevant staff of the firm through appropriate internal channels.
[Note: guideline 1(b) and (c) of the complaints handling guidelines for the securities (ESMA) and banking (EBA) sectors. See https://www.eba.europa.eu/documents/10180/732334/JC+2014+43+-+Joint+Committee+-+Final+report+complaints-handling+guidelines.pdf/312b
The firm’s senior management should be responsible for the implementation of the complaints management policy and for monitoring compliance with it.
[Note: guideline 1(b) and (c) of the complaints handling guidelines for the securities (ESMA) and banking (EBA) sectors. See https://www.eba.europa.eu/documents/10180/732334/JC+2014+43+-+Joint+Committee+-+Final+report+complaints-handling+guidelines.pdf/312b02a6-3346-4dff-a3c4-41c987484e75 ]
Once a MiFID complaint has been received by a MiFID investment firm, the firm must:(1) investigate the complaint competently, diligently and impartially, obtaining additional information as necessary;
(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; and(d)
if appropriate, whether it has reasonable grounds to be satisfied that another
Factors that may be relevant in the assessment of a MiFID complaint under DISP 1.1A.20R(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 FCA, other relevant regulators, the Financial Ombudsman Service or former schemes; and
(4) appropriate analysis of decisions by the Financial Ombudsman Service concerning similar
Where a MiFID complaint against a MiFID investment firm is referred to the Financial Ombudsman Service, the MiFID investment firm must cooperate fully with the Financial Ombudsman Service and comply promptly with any settlements or awards made by it.
[Note: subject to a few minor changes reflecting its amended application, this provision replicates DISP 1.4.4R.]
Investment firms shall communicate the firm’s position on the complaint to clients or potential clients and inform the clients or potential clients about their options, including that they may be able to refer the complaint to an alternative dispute resolution entity, as defined in Article 4(h) of Directive 2013/11/EU of the European Parliament and Council on consumer ADR or that the client may be able to take civil action.
[Note: article 26(5) of the MiFID Org Regulation. See
The explanation given by MiFID investment firms to clients or potential clients in accordance with DISP 1.1A.25EU must also:
(1) refer to the fact that the complainant has made a MiFID complaint and inform the complainant that the MiFID investment firm now considers the MiFID complaint to have been resolved;(2)
inform the complainant that if, still dissatisfied with the resolution of the MiFID complaint, the complainant may be able to refer it to the Financial Ombudsman Service;
(3)
On receipt of a MiFID complaint, a MiFID investment firm must:(1) send the complainant a prompt written acknowledgement providing early reassurance that it has received the MiFID 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 MiFID complaint’s resolution.
[Note: subject to a few minor changes reflecting its amended application, this provision replicates DISP 1.6.1R.]
The explanation given by MiFID investment firms to clients or potential clients in accordance with DISP 1.1A.30EU must also:(1) enclose a copy of the Financial Ombudsman Service's standard explanatory leaflet;
(2) provide the website address of the Financial Ombudsman Service;(3)
inform the complainant that if, still dissatisfied with the respondent's response, the complaint may now be referred to the Financial Ombudsman Service; and
(4) indicate whether or not the respondent
When assessing a MiFID investment firm’s response to a MiFID complaint, the FCA may have regard to a number of factors, including, the quality of response, as against the above rules, as well as the speed with which it was made.
[Note: subject to a few minor changes reflecting its amended application, this provision replicates DISP 1.6.8G]
If a MiFID investment firm receives a MiFID complaint which is outside the time limits for referral to the Financial Ombudsman Service (see DISP 2.8) it may reject the MiFID complaint without considering the merits, but must explain this to the complainant in a final response.
[Note: subject to a few minor changes reflecting its amended application, this provision replicates DISP 1.8]
The complaints reporting rules also apply to the MiFID complaints of a firm, except that the relevant parts of the report which the firm must provide to the FCA under DISP 1.10.1R must, in relation to MiFID complaints, include information about such complaints received from retail clients, professional clients, and (where relevant) eligible counterparties rather than eligible complainants.
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,11 by certain branches of firms in the EEA or by certain EEA firms carrying out activities in the United Kingdom under the freedom to provide cross border services.11 It is also relevant to those who may wish to make a complaint or refer it to the Financial Ombudsman Service.
(1) Subject to DISP 1.1.5 R, this15 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.15(2) For the MiFID complaints of a MiFID investment firm:23(a) DISP 1.1A applies; and23(b) the other provisions of this chapter apply only as set out in DISP 1.1A.23(c) [deleted]23(2A) For the MiFID complaints of a third country investment
24The complaints reporting directions apply to a firm that provides payment services or issues electronic money in respect of:(1) complaints from payment service users; and(2) complaints from electronic money holders that are eligible complainantsconcerning activities carried on from an establishment maintained by the firm in the United Kingdom.
This chapter does not apply to:(1) [deleted]739739(2) [deleted]1414(3) an authorised professional firm in respect of expressions of dissatisfaction about its non-mainstream regulated activities;
1516(4) complaints in respect of auction regulation bidding;1615(5) a full-scope UK AIFM, small authorised UK AIFM or an incoming EEA AIFM, for complaints concerning AIFM management functions carried on for an AIF that is a body corporate unless it is a collective investment scheme21;
10The scope of this sourcebook does not include:(1) a complaint about pre-commencement investment business which was regulated by a recognised professional body (those complaints will be handled under the arrangements of that professional body); or(2) a complaint about the administration of an occupational pension scheme, because this is not a regulated activity (firms should refer complainants to the Pensions Ombudsman25 rather than to the Financial Ombudsman Service and should
8This chapter (except 24 the complaints reporting rules and the complaints data publication rules9) applies to payment service providers that are not firms24 in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by that payment service provider24 or its agent in the United Kingdom.99
1340This chapter (except 24the complaints reporting rules, and the complaints data publication rules) applies to an electronic money issuer that is not a firm24 in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by that electronic money issuer24 or its agent in the United Kingdom.
11For complaints related to collective portfolio management services of a UK UCITS management company for a UCITS scheme or an EEA UCITS scheme, DISP 1.1.3R (1) applies, except where modified as follows:(1) the consumer awareness rules, complaints handling rules and complaints record rule apply in respect of complaints from Unitholders rather than from eligible complainants; and(2) the consumer awareness rules, the complaints handling rules and the complaints record rule, as modified
For complaints related to collective portfolio management services of an EEA UCITS management company for a UCITS scheme, DISP 1.1.3R (1) applies, except where modified as follows:(1) where the services are provided from a branch in the United Kingdom, the consumer awareness rules, complaints handling rules and complaints record rule apply in respect of complaints from Unitholders rather than from eligible complainants; and(2) this chapter, except the consumer awareness rules,
20This chapter (except the complaints record rule, the complaints reporting rules and the complaints data publication rules) applies to a designated credit reference agency in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by it or its agent in the United Kingdom.
22This chapter (except the complaints record rule, the complaints reporting rules, and the complaints data publication rules) applies to a designated finance platform in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by it or its agent in the United Kingdom.
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,9 the complaints reporting rules and the complaints data publication rules9 will apply only if the complaint is about the outcome of the review.9
(1) A firm, payment service provider20, electronic money issuer, 22designated credit reference agency20 or designated finance platform22 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
FCA
, claim exemption from the rules relating to the funding of the Financial Ombudsman Service, and from the remainder of this chapter.134081340(2) Notwithstanding
(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.
1The deadlines for publication of the Society's complaints data summaries are:(1) 28 February for the summary of its report relating to the reporting period ending on 31 December of the previous year; and(2) 31 August for the summary of its report relating to the reporting period ending on 30 June of the same year.
1The Society may choose how it publishes the complaints data summary. However, the complaints data summary should be readily available. For this reason, the
FCA
recommends that the Society publishes the summary on its website. The Society may publish further information with the complaints data summary to aid understanding.
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
7The 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
(other than auction regulation bidding and administering a benchmark20 );10(1A) payment services;7(1B) [deleted]1312(1C) CBTL business;14(2) [deleted]11321132(3) lending money secured by a charge on land;(4) lending money (excluding restricted credit where that is not a
credit-related
17The Ombudsman can also consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by:
(1) an investment firm authorised under MiFID when providing investment services or ancillary services;(2)
a CRD credit institution when providing one or more investment services;(3)
an investment firm authorised under MiFID or a CRD credit institution when selling structured deposits to clients, or advising clients on them;(4)
a collective portfolio management
17For the purposes of DISP 2.3.1AR, the Ombudsman can consider a complaint about an act carried out by a MiFID investment firm that is preparatory to the provision of an investment service or ancillary service which is an integral part of such a service. This includes, for example, generic advice given by a MiFID investment firm to a client prior to, or in the course of, the provision of investment advice or another investment service or ancillary service.
[Note: recitals 15 and
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
1132In accordance with article 11 of the Regulated Activities Amendment Order, the Ombudsman can also consider under the Compulsory Jurisdiction:(1) a relevant existing credit-related complaint referred to the Financial Ombudsman Service before 1 April 2014 which was formerly being dealt with under the Consumer Credit Jurisdiction; and(2) a relevant new credit-related complaint referred to the Financial Ombudsman Service on or after 1 April 2014 which relates to an act or omission
7The Ombudsman can consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by a payment service provider in carrying on:(1) payment services; or(2) credit-related regulated activities;11321132or any ancillary activities, including advice, carried on by the payment service provider in connection with them.
931The Ombudsman can consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by an electronic money issuer in carrying on:(1) issuance of electronic money; or(2) credit-related regulated activities;11321132or any ancillary activities, including advice, carried on by the electronic money issuer in connection with them.
8As a result of section 404B(11) of the Act, the Ombudsman can also consider under the Compulsory Jurisdiction a complaint from a complainant who:(1) is not satisfied with a redress determination made by a respondent under a consumer redress scheme; or(2) considers that a respondent has failed to make a redress determination in accordance with a consumer redress scheme.
15The Ombudsman can consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by a designated credit reference agency in carrying on: (1) the activity of providing credit information under the Small and Medium Sized Business (Credit Information) Regulations; or (2) any ancillary activities, including advice, carried on by the designated credit reference agency in connection with the activity in (1).
16The Ombudsman can consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by a designated finance platform in carrying on: (1) the activity of providing specified information under the Small and Medium Sized Business (Finance Platforms) Regulations; or (2) any ancillary activities, including advice, carried on by the designated finance platform in connection with the activity in (1).
Complaints about acts or omissions include those7 in respect of activities for which the firm,931payment service provider7, 14electronic money issuer,15CBTL firm,16designated credit reference agency15 or designated finance platform16 is responsible (including business of any appointed representative or agent7 for which the firm,931payment institution,15electronic money institution,16designated credit reference agency15 or designated finance platform16 has accepted responsibi
7The Compulsory Jurisdiction includes complaints about the UK end of 'one leg' payment services transactions, i.e. services provided from UK establishments that also involve a payment service provider located outside the EEA. The Compulsory Jurisdiction also includes complaints about payment services irrespective of the currency of the transaction.
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.
Subject to DISP 1.6.2AR, the5respondent must, by the end of eight weeks after its receipt of the complaint, send the complainant:(1) a 'final response', being a written response from the respondent which:3939(a) accepts the complaint and, where appropriate, offers redress or remedial action; or(b) offers redress or remedial action without accepting the complaint; or(c) rejects the complaint and gives reasons for doing so;and which:(d) encloses a copy of the Financial Ombudsman
5Where a complaint is an EMD complaint or a PSD complaint, the respondent must:(1) send a final response to the complainant by the end of 15 business days after the day on which it received the complaint; or(2) in exceptional circumstances, if a final response cannot be given in accordance with paragraph (1) for reasons beyond the control of the respondent:(a) send a holding response to the complainant by the end of 15 business days after the day on which it received the complaint,
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; 28410(2) referred to the ultimate availability of the Financial Ombudsman Service if he remains dissatisfied with the respondent's response;28(3) enclosed a copy of the Financial Ombudsman Service standard explanatory leaflet;410(4)
28The information regarding the Financial Ombudsman Service,5 required to be provided in responses sent under the complaints time limit rules (DISP 1.6.2 R, DISP 1.6.2AR and DISP 1.6.4 R),5 should be set out clearly, comprehensibly, in an easily accessible way and 410prominently within the text of those responses.3939[Note: article 13 of the ADR Directive]410
Unless the respondent has already had eight weeks to consider the complaint (or for EMD complaints and PSD complaints the time specified by DISP 2.8.1R(2A))3 or issued a final response or summary resolution communication, 9the Ombudsman will refer the complaint to the respondent (except where DISP 2.8.1R(4) applies).8268
7If the subject matter of a complaint falls to be dealt with by the respondent under a consumer redress scheme, and the time limits specified under the scheme for doing so have not yet expired, the Ombudsman will refer it to the respondent to be dealt with under the scheme (except where DISP 2.8.1R(4) applies).88
(1) Where the firm's relevant reporting period (as defined in DISP 1.10.4 R or DISP 1.10.4A R as the case may be27) ends between 1 January and 30 June, the firm must publish the complaints data summary no later than 31 August of the same year.(2) Where the firm's relevant reporting period (as defined in DISP 1.10.4 R or DISP 1.10.4A R as the case may be27) ends between 1 July and 31 December, the firm must publish the complaints data summary no later than 28 February of the following
A firm must immediately confirm to the
FCA
, in an email submitted to
complaintsdatasummary@fca.org.uk ,
that the complaints data summary or total number of complaints (as appropriate)27 accurately reflects the report submitted to the
FCA
, that the summary or total number of complaints (as appropriate)27 has been published and where it has been published.
A firm will be taken to have complied with DISP 1.10A.1R (1), DISP 1.10A.1R (1A)27(2)
, DISP 1.10A.1R (3) or DISP 1.10A.1R (4)27 if within the relevant time limit set out in DISP 1.10A.3 R the firm:27(1) ensures that another person publishes the complaints data summary or total number of complaints (as appropriate)27 on its behalf; and(2) publishes details of where this summary or total number of complaints (as appropriate)27 is published.
Firms may choose how they publish the complaints data summary or total number of complaints (as appropriate)27. However, the summary or total number of complaints (as appropriate)27 should be readily available. For this reason, the
FCA
recommends that firms should publish the summary or total number of complaints (as appropriate)27 on their websites.
(1) 4To improve consumer awareness and to help firms compare their performance against their peers, the FCA publishes:(a) complaints data about the financial services industry as a whole; and(b) firm-level complaints data for those firms that are required to publish a complaints data summary or the total number of complaints (as appropriate) under DISP 1.10A.1R.(2) The FCA also publishes firm-level information giving context to the complaints data reported to it for those firms
4For firms reporting 500 or more complaints under DISP 1.10.1R(1) or 1000 or more complaints under DISP 1.10.1R(2) in the relevant reporting period, the FCA will publish the firm-level complaints data and information providing context to the complaints data reported to it either:(1) after the firm provides the appropriate consent in the complaints data report and confirms that the reported data accurately reflects the data which it will publish under DISP1.10A.1R; or(2) after
4For firms with only a limited permission that report complaints to the FCA under the reporting requirements in SUP 16.12, the FCA will publish the firm-level complaints data reported to it after the FCA receives an email from the firm under DISP 1.10A.4R. That email should confirm that the total number of complaints accurately reflects the report submitted to the FCA under SUP 16.12, that the total number of complaints has been published and where the information has been pu
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
Except in relation to a “relevant complaint” within the meaning of section 404B(3) of the Act10, a9 money award may be such amount as the Ombudsman considers to be fair compensation for one or more of the following:9(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
17If the Ombudsman considers that fair compensation requires payment of a larger amount, he may recommend that the respondent pays the complainant the balance. The effect of section 404B(6) of the Act is that this is also the case in relation to a “relevant complaint” within the meaning of section 404B(3) of the Act.109
17
Except in relation to a “relevant complaint” within the meaning of section 404B(3) of the Act10, a9 direction may require the
respondent9
to take such steps in relation to the complainant as the Ombudsman considers just and appropriate (whether or not a court could order those steps to be taken).99
(1) In contrast to the other provisions in DISP 1 which generally apply only to complaints from eligible complainants, the complaints reporting directions apply in addition to complaints from payment service users that are not eligible complainants.(2) Payment service providers are reminded that regulation 101 of the Payment Services Regulations contains requirements relating to complaints resolution procedures applicable to complaints from payment service users that are not eligible
DISP 1 Annex 1AD requires, for the relevant reporting period and in respect of particular categories of products:(1) in Table 1, information about the total number of complaints received by the respondent and the cause of the complaint;(2) in Table 2, information about the number of complaints that were:(a) closed or upheld within different periods of time; and(b) the total amount of redress paid by the respondent in relation to complaints upheld and not upheld in the relevant
When completing the return, the respondent 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 respondent considers to form the main part of the complaint.(2) Under DISP 1.10B.7D(2)(a), a respondent should report information relating to all complaints which are closed and upheld within the relevant reporting period, including those resolved under DISP 1.5 (Complaints
(1) To improve consumer awareness and to help respondents compare their performance against their peers, the FCA may publish: (a) complaints data about the payment services and electronic money sector as a whole; and(b) respondent level complaints data and information giving context to the complaints data for those respondents that provide appropriate consent in the electronic money and payment services complaints return form at DISP 1 Annex 1AD. (2) Although the complaints data
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 consumer3; 3(2) a
micro-enterprise3
;3(a) 3in relation to a complaint relating wholly or partly to payment services, either at the time of the conclusion of the payment service contract or at the time the complainant refers the complaint to the respondent; or(b) otherwise, 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
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,629payment service user3
or electronic money holder629 of the respondent;(2) the complainant is (or was) a potential customer,629payment service user3
or electronic money holder629 of the respondent;(3) the complainant is the holder, or the beneficial owner, of units
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, payment service provider,3electronic money issuer, 629CBTL firm, designated credit reference agency, designated finance platform13 or VJ participant whose complaint relates in any way to an activity which:8321110(a) the firm itself has permission to carry on; or(ab) 3the firm,629payment service provider, 10electronic money issuer,11CBTL firm,13designated credit reference agency11 or designated finance
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
Where a complaint is made, the firm should assess the complaint fairly, giving appropriate weight and balanced consideration to all available evidence, including what the complainant says and other information about the sale that the firm identifies. The firm is not expected automatically to assume that there has been a breach or failing.
The firm should recognise that oral evidence may be sufficient evidence and not dismiss evidence from the complainant solely because it is not supported by documentary proof. The firm should take account of a complainant's limited ability fully to articulate his complaint or to explain his actions or decisions made at the time of the sale.
Where the complainant's account of events conflicts with the firm's own records or leaves doubt, the firm should assess the reliability of the complainant's account fairly and in good faith. The firm should make all reasonable efforts (including by contact with the complainant where necessary) to clarify ambiguous issues or conflicts of evidence before making any finding against the complainant.
In determining a particular complaint, the firm should (unless there are reasons not to because of the quality and plausibility of the respective evidence) give more weight to any specific evidence of what happened during the sale (including any relevant documentation and oral testimony) than to general evidence of selling practices at the time (such as training, instructions or sales scripts or relevant audit or compliance reports on those practices).
The firm should not assume that because it was not authorised to give advice (or because it intended to sell without making a recommendation) it did not in fact give advice in a particular sale. The firm should consider the available evidence and assess whether or not it gave advice or made a recommendation (explicitly or implicitly) to the complainant.
19The Ombudsman can only consider a complaint if:(1) the respondent has already sent the complainant its final response or summary resolution communication; or51212(2) in relation to a complaint that is not an EMD complaint or a PSD complaint,8 eight weeks have elapsed since the respondent received the complaint; or3(2A) in relation to a complaint that is an EMD complaint or a PSD complaint:8(a) 15 business days have elapsed since the respondent received the complaint and the
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, 512redress determination or summary resolution communication512; or3(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
19The six-month time limit is only triggered by a response which is a final response, redress determination or summary resolution communication512. The response 411must tell the complainant about the six-month time limit that the complainant has to refer a complaint to the Financial Ombudsman Service.411512411
19The six-year and the three-year time limits do not apply where:(1) [deleted]33(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 for the review of specific categories of FSAVC business issued by the FSA on 28 February 2000.
A credit union must provide the FCA, once a year, with a report in the format set out in CREDS 9 Annex 1 R (Credit Union complaints return) which contains (for the relevant reporting period) information about:(1) the total number of complaints received by the credit union;(2) (for the product/service groupings within section 5)3 the number of complaints closed by the credit union:(a) within eight weeks of receipt; and(b) more than eight weeks after receipt;(2A) (for other lending
For the purposes of CREDS 9.2.4 R:(1) a complaint received on any day other than a business day, or after close of business on a business day, may be treated as received on the next business day; and(2) a complaint is resolved where the complainant has indicated acceptance of a response from the credit union, with neither the response nor acceptance having to be in writing.
For the purpose of CREDS 9.2.1 R, and upon completing the return, the credit union should note that:(1) where a complaint could fall into more than one category, the complaint should be recorded against the category that the credit union considers to form the main part of the complaint;(2) where a complaint has been upheld under CREDS 9.2.1R (3)(a), a credit union should report any complaints to which it has given a final response which accepts the complaint and, where appropriate,
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) or RAP recognition requirements (see REC 2A.3.2 G).1
The Act does not provide a mechanism for appeals to the FCA2 from decisions by recognised bodies in relation to complaints. However, the FCA2 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 FCA's2 arrangements for investigating
Where the FCA2 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 FCA2 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 FCA2 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.2
The firm should seek to establish the true substance of the complaint, rather than taking a narrow interpretation of the issues raised, and should not focus solely on the specific expression of the complaint. This is likely to require an approach to complaint handling that seeks to clarify the nature of the complaint.
Where a complaint raises (expressly or otherwise) issues that may relate to the original sale or a subsequently rejected claim then, irrespective of the main focus of the complaint, the firm should pro-actively consider whether the issues relate to both the sale and the claim, and assess the complaint and determine redress accordingly.
The Ombudsman can consider a complaint under the Voluntary Jurisdiction if:427(1) it is not covered by the Compulsory Jurisdiction;831 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 (other than administering a benchmark)35 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
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
6DISP 2.5.1R (2)(l) includes complaints about the EEA end of 'one leg' payment services transactions, i.e. services provided from EEA establishments that are subject to the territorial jurisdiction of the Voluntary Jurisdiction (see DISP 2.6.4R (2)) that also involve a payment service provider located outside the EEA. It also includes complaints about payment services irrespective of the currency of the transaction.
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.
(1) Where a firm receives less than 500 complaints in a reporting period, Part A-1 of DISP 1 Annex 1 requires, for the relevant reporting period and in respect of particular categories of products:10(a) in Table 1, information about the total number of complaints received by the firm and the cause of the complaint;10(b) in Table 2, information about the number of complaints that were:10(i) closed or upheld within different periods of time; and10(ii) the total amount of redress
Part B of DISP 1 Annex 1R requires (for the relevant reporting period) information about:10618(1) the total number of complaints received by the firm;10(2) the total number of complaints closed by the firm;10(3) the total number of complaints:10(a) upheld by the firm in the reporting period; and10(b) outstanding at the beginning of the reporting period; and10(4) the total amount of redress paid in respect of complaints during the reporting period.10
For the purposes of DISP 1.10.2R, DISP 1.10.2-AR and DISP 1.10.2AR, when completing the return, the firm should take into account the following matters.106184(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.10(2) Under DISP 1.10.2R(1)(b), DISP 1.10.2R(2)(b) or DISP 1.10.2-AR, a firm should report information relating to all complaints which are closed and
Once a complaint has been received by a respondent, it must:(1) investigate the complaint competently, diligently and impartially, obtaining additional information as necessary;59(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
Factors that may be relevant in the assessment of a complaint under DISP 1.4.1R (2) include the following:59(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
FCA
, 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 following rules do not apply to a complaint that is resolved by a respondent by close of business on the third 811business day following the day on which it is received811:(1) the complaints time limit rules; and98811(2) the complaints forwarding rules.811(3) [deleted]8116(4) [deleted]81176(5) [deleted]8116
811In addition to sending a complainant a summary resolution communication, a respondent may also use other methods to communicate the information referred to in DISP 1.5.4R(1) to (5) where–(1) the respondent considers that doing so may better meet the complainant’s needs; or(2) the complainant and respondent have already been using another method to communicate about the complaint.
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) treat the complaint as withdrawn