Related provisions for DISP 3.5.11
1 - 20 of 79 items.
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
A respondent must pay to the FOS Ltd the standard case fee specified in FEES 5 Annex 3R Part 1 in respect of each chargeable case relating to that respondent which is closed by the Financial Ombudsman Service , unless the respondent is identified as part of a charging group as defined in FEES 5 Annex 3R Part 3.
The exclusion of respondents that are identified as part of a charging group as defined in FEES 5 Annex 3R Part 3 applies only from 1 April 2013. Those respondents continue to be liable for the standard case fee under FEES 5.5B.12 R in respect of chargeable cases closed by the Financial Ombudsman Service before 1 April 2013.
A respondent must pay to the FOS Ltd the supplementary case fee specified in FEES 5 Annex 3R Part 2 in respect of each chargeable case (PPI) relating to that respondent which is referred to the Financial Ombudsman Service, as well as any standard case fee under FEES 5.5B.12 R, unless the respondent is identified as part of a charging group as defined in FEES 5 Annex 3R Part 3.
The exclusion of respondents that are identified as part of a charging group as defined in FEES 5 Annex 3R Part 3 applies only from 1 April 2013. Those respondents continue to be liable for the supplementary case fee under FEES 5.5B.17 R in respect of chargeable cases (PPI) referred to the Financial Ombudsman Service before 1 April 2013.
If a respondent does not pay a case fee payable under FEES 5.5B in full to the FOS Ltd before the end of the date on which it is due, that respondent must pay to the FOS Ltd in addition:(1) an administrative fee of £250; plus(2) interest on any unpaid amount at the rate of 5% per annum above the Official Bank Rate from time to time, accruing on a daily basis from the date on which the amount concerned became due.
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).
If the Ombudsman decides that an investigation is necessary, he will then:(1) ensure both parties have been given an opportunity of making representations;(2) send both parties a provisional assessment, setting out his reasons and a time limit within which either party must respond; and(3) if either party indicates disagreement with the provisional assessment within that time limit, proceed to determination.15
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
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
Section 234 of the Act (Industry Funding) enables the FCA to require the payment to it or to FOS Ltd, by firms or any class of firm, of specified amounts (or amounts calculated in a specified way) to cover the costs of: (1) the establishment of 1the Financial Ombudsman Service; and (2) its operation in relation to the Compulsory Jurisdiction.
This chapter sets out the framework for the funding arrangements of the Financial Ombudsman Service, including, where relevant,25 the method by which fees will be calculated. Details of the actual fees payable will vary from year to year, depending on the annual budget of the Financial Ombudsman Service. These details will be set out in annexes 25to this chapter. New annexes25 will be prepared and consulted on for each financial year.2525
The following rules and guidance apply to VJ participants as part of the standard terms, except where the context requires otherwise:(1) DISP 1 (Treating complainants4fairly), except:4(a) DISP 1.94(Complaints record rule);4(b) DISP 1.104(Complaints reporting rules);84(ba) DISP 1.10A (Complaints data publication rules); 98(bb) DISP 1.10B (Payment services and electronic money complaints reporting); and9(c) DISP 1.114(Lloyd's);4(d) DISP 1.1A (Complaints handling requirements for
The following rules in FEES apply to VJ participants as part of the standard terms, but substituting 'VJ participant' for 'firm':(1) FEES 2.2.1 R (late payment) but substituting 'FOS Ltd' for 'the FCA';2121(2) FEES 2.3.1 R and 2.3.2 R (remission of fees);(3) [deleted]24(4) FEES 5.3.6 R (general levy) but substituting:(a) 'Voluntary Jurisdiction' for 'Compulsory Jurisdiction' ; and(b) 'FOS Ltd' for 'the FCA';2121(5) FEES 5.3.8 R (calculation of general levy) but substituting:24(a)
A VJ participant may not withdraw from the Voluntary Jurisdiction unless:(1) the VJ participant has submitted to FOS Ltd a written plan for:(a) notifying its existing customers of its intention to withdraw; and(b) handling complaints against it before its withdrawal;(2) the VJ participant has paid the general levy for the year in which it withdraws and any other fees payable; and(3) FOS Ltd has approved in writing both the VJ Participant's plan and the date of withdrawal (which
None of the following is to be liable in damages for anything done or omitted to be done in the discharge (or purported discharge) of any functions in connection with the Voluntary Jurisdiction:318(1) FOS Ltd;(2) any member of its governing body;(3) any member of its staff;(4) any person acting as an Ombudsman for the purposes of the Financial Ombudsman Service;except where:(5) the act or omission is shown to have been in bad faith; or(6) it would prevent an award of damages being
(1) A notification claiming exemption under DISP 1.1.12 R from the complaints reporting rules and the rules relating to the funding of the Financial Ombudsman Service must be given to the
FCA
by the Society on behalf of any member eligible for an exemption. (2) The Society must notify the
FCA
if the conditions relating to such an exemption no longer apply to a member who is exempt.
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
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
(1) 19If a complaint relates to the sale of an endowment policy for the purpose of achieving capital repayment of a mortgage and the complainant receives a letter from a firm or a VJ participant warning that there is a high risk that the policy will not, at maturity, produce a sum large enough to repay the target amount then, subject to (2), (3), (4) and (5):(a) time for referring a complaint to the Financial Ombudsman Service starts to run from the date the complainant receives
(1) 713In addition to DISP 2.8.1R and DISP 2.8.2R, unless one or more of the conditions in (2) below is met, the Ombudsman cannot consider a complaint which:(a) relates to the sale of a payment protection contract that took place on or before 29 August 2017; and(b) expresses dissatisfaction about the sale, or matters related to the sale, including where there is a rejection of claims on the grounds of ineligibility or exclusion (but not matters unrelated to the sale, such as delays
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
8As a result of section 404B of the Act, if the subject matter of a complaint falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, the Ombudsman will determine the complaint by reference to what, in the opinion of the Ombudsman, the redress determination under the consumer redress scheme should be or should have been, unless the complainant and the respondent agree that the complaint should not be dealt with in accordance with the consumer
17When the
Ombudsman9
has determined a complaint:9(1) the Ombudsman will give both parties a signed written statement of the determination, giving the reasons for it;(2) the statement will require the complainant to notify the Ombudsman ,9 before the date specified in the statement, whether he accepts or rejects the determination;(3) if the complainant notifies the Ombudsman that he accepts the determination within that time limit, it is final and binding on both parties;(4)
(1) 9An Ombudsman may correct any clerical mistake in the written statement of an Ombudsman's determination, whether or not the determination has already been accepted or rejected.(2) Any failure to comply with any provisions of the procedural rules made by the FOS Ltd does not of itself render an Ombudsman's determination void.
(1) 9The FOS Ltd will publish a report of any Ombudsman's determination, save that if the Ombudsman who made the determination informs the FOS Ltd that, in the Ombudsman's opinion, it is inappropriate to publish a report of that determination (or any part of it), the FOS Ltd will not publish a report of that determination (or that part, as appropriate).(2) Unless the complainant agrees, a report will not include the name of the complainant, or particulars which (in the opinion
A MiFID investment firm must provide information to eligible complainants, in a clear, comprehensible and easily accessible way, about the Financial Ombudsman Service (including the Financial Ombudsman Service’s website address):
(1) on its website, where one exists; and(2)
if applicable, in the general conditions of its contracts with eligible complainants.[Note: subject to a few minor changes reflecting its amended application, this provision replicates DISP 1.2.1R(4)]
[Note:
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.]
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)
The information regarding the Financial Ombudsman Service required to be provided in a communication sent under DISP 1.1A.25EU and referred to in DISP 1.1A.26R should be set out clearly, comprehensibly, in an easily accessible way and prominently within the text of those responses.
[Note: article 13 of the ADR Directive]
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
The information regarding the Financial Ombudsman Service required to be provided in a final response sent under DISP 1.1A.30EU and referred to in DISP 1.1A.31R should be set out clearly, comprehensibly, in an easily accessible way and prominently within the text of those responses.
[Note: article 13 of the ADR Directive]
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 Ombudsman Transitional Order requires the Financial Ombudsman Service to complete the handling of relevant existing complaints, in a significant number of respects, in accordance with the requirements of the relevant former scheme rather than in accordance with the requirements of this chapter.49
The purpose of this chapter is to set out the requirements on firms to pay annual fees (through a general levy invoiced and collected by the FCA on behalf of FOS Ltd) and case fees (invoiced and collected directly by FOS Ltd) in order to fund the operation of the Financial Ombudsman Service.This Chapter4 also provides for unauthorised persons to pay case fees to FOS Ltd in respect of any relevant complaints which it handles.44
Under the Ombudsman Transitional Order and the Mortgage and General Insurance Complaints Transitional Order, where the Ombudsman is dealing with a relevant complaint, he must take into account whether an equivalent complaint would have been dismissed without consideration of its merits under the former scheme in question, as it had effect immediately before the relevant transitional order came into effect.2929
The Ombudsman may dismiss a complaint413referred to the Financial Ombudsman Service before 9 July 2015 413without considering its merits if 413the Ombudsman413considers that:5(1) the complainant has not suffered (or is unlikely to suffer) financial loss, material distress or material inconvenience; or(2) the complaint is frivolous or vexatious; or(3) the complaint clearly does not have any reasonable prospect of success; or(4) the respondent has already made an offer of compensation
413The Ombudsman may dismiss a complaint referred to the Financial Ombudsman Service on or after 9 July 2015 without considering its merits if the Ombudsman considers that:(1) the complaint is frivolous or vexatious; or(2) the subject matter of the complaint has been dealt with, or is being dealt with, by a comparable ADR entity; or(3) the subject matter of the complaint has been the subject of court proceedings where there has been a decision on the merits; or(4) the subject
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.
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
20Although designated credit reference agencies are not required to comply with the complaints record rule, they must retain records in accordance with regulation 24 of the Small and Medium Sized Business (Credit Information) Regulations and these can be used to assist the Financial Ombudsman Service should this be necessary.
22Although designated finance platforms are not required to comply with the complaints record rule, they must retain records in accordance with regulation 21 of the Small and Medium Sized Business (Finance Platforms) Regulations and these can be used to assist the Financial Ombudsman Service should this be necessary.
(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
The FOS ADR levy is
calculated as follows:(1) Determine the number of hours, or part of an
hour, taken by the FCA, in performing functions
under the ADR Regulations.(2) Using the table at FEES 3 Annex 9R(11),
determine the relevant pay grades of those employed by the
FCA to perform the functions under the
ADR Regulations.(3) Next, multiply the applicable rate in the table
at FEES 3 Annex 9R(11) by the number of hours or part hours obtained under
(1).(4) Then add any fees and disbursements
If a person does not pay the total amount of a periodic fee3, FOS levy, or share of the FSCS levy,18CFEB levy or SFGB levy18, before2 the end of the2 date on which it is due, under the relevant provision in FEES 4, 5, 6, 7 or 7A18, that person must pay an additional amount as follows: 34297236266(1) if the fee was not paid in full before the end of the due date, an administrative fee of £250; plus(2) interest on any unpaid part of the fee at the rate of 5% per annum above the
The FCA22, (for FCA and PRA22periodic fees, FOS and FSCS levies, CFEB levies and SFGB levies18), expects11 to issue invoices at least 30 days before the date on which the relevant amounts fall due. Accordingly it will generally be the case that a person will have at least 30 days from the issue of the invoice before an administrative fee becomes payable.226723117232
(1) Paragraph15 23(8) of Schedule 1ZA of the Act permits the FCA to recover fees (including fees relating to payment services, the issuance of electronic money, 17CBTL firms, data reporting services providers,17designated credit reference agencies, designated finance platforms16 and, where relevant, FOS levies, CFEB levies and SFGB levies18).14(2) Section 213(6) of the Act permits the FSCS to recover shares of the FSCS levy payable, as a debt owed to the FCA and FSCS respectively.
In addition, the FCA13may be entitled to take regulatory action in relation to the non-payment of fees,6FOS levies, CFEB levies and SFGB levies18. The FCA136 may also take regulatory action in relation to the non-payment of FOS case fees or 723 a723 share of the FSCS levy, after reference of the matter to the6FCA13 by the6FSCS. What action (if any) that is taken by the FCA13will be decided upon in the light of the particular circumstances of the case.666723723
The FCA will determine, following consultation, the amount to be raised from each industry block. This will be based on the budgeted costs and numbers of Financial Ombudsman Service staff required to deal with the volume of complaints which the Financial Ombudsman Service expects to receive about the firms in each industry block. Modified arrangements have been made for certain types of small firms (see FEES 5.5.3 R to FEES 5.5.5 G).
Under the standard terms, VJ participants will be required to pay to FOS Ltd an amount calculated on a similar basis towards the costs of operating the Voluntary Jurisdiction of the Financial Ombudsman Service, see FEES 5 Annex 2R210. FOS Ltd will be responsible for invoicing and collecting this amount.
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