Dáil Éireann Debate, Tuesday - 22 February 2022
262. Deputy Mairéad Farrell asked the Minister for Finance if the Financial Services and Pensions Ombudsman is taking the position in many cases that the consumer should have been aware of misconduct (details supplied) when they signed a loan offer or when they first went into default on a loan. [9772/22]
View answerAs the Deputy is aware, the Financial Services and Pensions Ombudsman (FSPO) is independent in the performance of her statutory functions and I have no role in the day to day workings of the office or in the decisions which she takes.
The FSPO has informed me that it can investigate complaints made about the conduct of financial service providers and pension providers, only if such complaints are made within the time limits prescribed by the Financial Services and Pensions Ombudsman Act 2017 (‘the Act’).
The Act further requires that where a question arises as to whether the Ombudsman has jurisdiction to investigate a complaint, including in relation to time limits, the question must be determined by the Ombudsman. Any jurisdictional determination, including in relation to time limits, is made by the Ombudsman on the basis of an in-depth assessment of the evidence available regarding the complaint, to ensure that the provisions of the Act are observed. The Ombudsman must at all times act within the limits of the governing legislation.
In July 2017, legislative changes were made to the time limits for making complaints to the FSPO’s predecessor, the Financial Services Ombudsman’s Bureau. This introduced additional time limits for complaints about the conduct of financial service providers, in respect of a “long-term financial service". These expanded time limits were included in the Act, which commenced in January 2018, when the FSPO came into existence.
Section 51 of the Act, governing time limits, prescribes that any complaint about a "long-term financial service", can be made not only within a period of six years of the date of the conduct complained of, but also within a period of three years of a certain "date of knowledge" as prescribed within the Act. In addition, the Ombudsman has a statutory discretion, regarding such complaints, to extend the time where there are reasonable grounds for requiring a longer period and it would be just and equitable in all the circumstances to do so.
Section 2 of the Financial Services and Pensions Ombudsman Act 2017 originally prescribed that a “long-term financial service” essentially constituted:
(a) a product or service with a fixed term of 5 years and 1 month or more, or
(b) life assurance.
The definition of long term financial service was further refined in 2018 to ensure greater protections for consumers, such that the definition now includes the following provision:-
“Notwithstanding the fact that the financial service does not fix its duration to be of a term such as is referred to in paragraph (a) of the definition of ‘long-term financial service’ in subsection (1), a financial service shall be regarded as falling within that definition if it would be reasonable for a consumer to expect its duration to be of at least the length referred to in that paragraph and that reasonable expectation arises by reason of—
(a) the manner in which the financial service operates to provide a financial benefit to the consumer,
(b) the type of assets with which its operation is connected, or
(c) representations made by the financial service provider, as distinct from where such an expectation arises in the case of
(i) a current account with a financial institution, or
(ii) any other financial service of an indefinite duration that is widely available and does not possess specialised characteristics.”
