Dáil Éireann Debate, Tuesday - 13 February 2018
121. Deputy Pearse Doherty asked the Minister for Finance if the Financial Services and Pensions Ombudsman Act 2017 allows the Financial Services Ombudsman to investigate a complaint regarding conduct that took place post 2002 even if the product itself was sold before 2002 assuming all other conditions are met; and if he will make a statement on the matter. [6692/18]
View answerAs the Deputy will be aware the Financial Services and Pensions Ombudsman Act 2017 which commenced on 01 January 2018 established the Financial Services and Pensions Ombudsman (FSPO).
Firstly, I must point out that the Ombudsman is independent in the performance of his statutory functions. I have no role in the day to day workings of the office. I would consider that the Ombudsman could investigate a complaint in the general circumstances described.
I have been informed by the Ombudsman that he considers that the jurisdiction of the FSPO to investigate a complaint regarding conduct, is dependent upon whether that conduct relates to a pension provider or a regulated financial service provider.
Conduct complained of against a financial service provider must have occurred during or after 2002. Although the sale of the product prior to 2002 is not a bar in itself to the investigation by the FSPO of conduct which occurred after 2002, it is important to note that the legislative provisions governing the power of the FSPO to investigate such complaints are complex.
Section 51 of the Act prescribes a period of 6 years for the making of a complaint to the FSPO that does not relate to a “long-term financial service”.
Complaints about long-term financial services can be made to the FSPO within whichever of the following periods is the last to expire:
1. 6 years from the date of the conduct giving rise to the complaint;
2. 3 years from the earlier of the date on which the person making the complaint became aware, or ought reasonably to have become aware, of the conduct giving rise to the complaint;
3. such longer period as the Ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period.
It should be noted that the long-term financial service should not have expired or otherwise been terminated more than 6 years before the date the complaint is made.
The FSPO is precluded by Section 50 of the Act from investigating complaints where:
(a) the internal dispute resolution procedures required under Section 54 have not been complied with,
(b) there are or have been proceedings (other than where the proceedings have been stayed under Section 49) before any court in respect of the matter that is the subject of the investigation,
(c) the complaint relates to a matter that is within the jurisdiction of the Workplace Relations Commission or Pensions Authority or an alternative suitable forum or tribunal, or
(d) the complaint, or any matter arising in connection with the complaint, is excluded from the jurisdiction of the Ombudsman by regulations made under Section 4.
The Ombudsman must also be cognisant of the provisions of Section 52 of the Act which prescribe that he may decline to investigate a complaint where, in his opinion:
(a) the complaint is frivolous or vexatious or was not made in good faith,
(b) the subject matter of the complaint is trivial,
(c) the conduct complained of occurred at too remote a time to justify investigation,
(d) there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of,
(e) the complainant has no interest or an insufficient interest in the conduct complained of, or
(f) the subject matter of the complaint is of such a degree of complexity that the courts are a more appropriate forum.
Each complaint is dealt with on its own merits and there may be any number of aspects to a complaint which require consideration, in order to determine whether the Ombudsman can investigate a complaint about conduct which has occurred after 2002.
