Made | 27th June 2001 | ||
Laid before Parliament | 27th June 2001 | ||
Coming into force in accordance with article 1(1) |
1. | Citation, commencement and interpretation |
2. | Partly completed complaints under former schemes |
3. | Complaints made after commencement about acts or omissions before commencement |
4. | Procedure applying to relevant complaints |
5. | Scheme rules applying to relevant complaints |
6. | Determination of relevant existing complaints |
7. | Determination of relevant new complaints |
8. | Complaints determined before commencement: adjudication under the IMRO scheme |
9. | Complaints determined before commencement: appeals under the SFA scheme |
10. | Complaints determined before commencement: appeals under the building societies scheme |
11. | Information |
12. | Funding and fees |
13. | Exemption from liability in damages |
14. | Privilege |
15. | Record-keeping and reporting requirements relating to relevant complaints |
16. | Anticipatory consultation on scheme rules |
17. | Liability of former schemes in respect of pre-commencement acts and omissions |
18. | Transitional complaints against the Authority etc. |
19. | Anticipatory consultation on transitional complaints scheme |
20. | Exemption from liability for damages |
(2) In this Order -
(3) References in this Order to numbered sections, Parts or Schedules are (unless otherwise indicated) references to sections or Parts of, or Schedules to, the Act.
is, after commencement, to be dealt with under the new scheme (and not the former scheme).
(2) For the purposes of paragraph (1)(b), a complaint is to be treated as determined before commencement where it had, before commencement, been rejected, withdrawn, settled or determined by the former ombudsman (whether by a substantive decision, or by closure of the case without a substantive decision).
(3) But a complaint is not to be treated as determined before commencement if, pursuant to the terms of the former scheme, the determination was at commencement subject to (or capable of being subject to) an appeal, a reference to arbitration or other like procedure.
(4) Paragraph (1) applies notwithstanding that the conditions in section 226(2) are not met.
(5) A complaint falling within paragraph (1) is referred to in this Order as a "relevant existing complaint".
Complaints made after commencement about acts or omissions before commencement
3.
- (1) Subject to the provisions of this Order, the compulsory jurisdiction resulting from section 226 applies to a complaint referred to the new scheme after commencement which relates to an act or omission occurring before commencement, if the conditions mentioned in paragraph (2) are satisfied (notwithstanding that the conditions in subsection (2)(b) and (c) of that section are not met).
(2) The conditions are that -
(3) For the purposes of paragraph (2)(c), where the complainant is not eligible in accordance with rules made under section 226(6) and (7) (power to specify in rules the classes of persons who are eligible complainants), an ombudsman may nonetheless, if he considers it appropriate, treat the complainant as eligible if he would have been entitled to refer an equivalent complaint to the former scheme in question immediately before commencement.
(4) Where the former scheme in question is the insurance scheme, a complainant is not to be treated as eligible for the purposes of paragraph (2)(c) unless -
(5) A complaint falling within paragraph (1) is referred to in this Order as a "relevant new complaint".
Procedure applying to relevant complaints
4.
- (1) In paragraph 13(1) of Schedule 17 (time limits for making complaints) -
(2) Paragraph 13(2) of Schedule 17 (discretion for ombudsman to extend time limits) is to be taken to require an ombudsman to extend any time limit applying to a relevant complaint by virtue of paragraph (1) where -
but subject to that, paragraph 13(2) of Schedule 17 applies in relation to relevant complaints as it applies in relation to complaints of the kind mentioned in section 226(1) (compulsory jurisdiction).
(3) In paragraph 13(3) of Schedule 17 (rules requiring complaint to be first communicated to the respondent), the reference to "a complaint" is to be taken to include a relevant complaint.
(4) In paragraph 13(4) of Schedule 17 (rules requiring the maintenance of complaint procedures), the reference to complaints which may be referred to the scheme is to be taken to include -
Scheme rules applying to relevant complaints
5.
- (1) In paragraph 14 of Schedule 17 (the scheme operator's rules), references to "complaints" are to be taken to include relevant complaints.
(2) Paragraph (1) is subject to the following -
Determination of relevant existing complaints
6.
- (1) The following provisions do not apply in relation to a relevant existing complaint -
(2) A relevant existing complaint is to be determined (so far as practicable) by reference to such criteria as would have applied to the determination of the complaint by the former ombudsman under the former scheme in question immediately before commencement (provided that where the former scheme is the FSA scheme, the criteria are those which would have applied to the determination of the complaint by an independent investigator under that scheme at that time).
(3) A determination of a relevant existing complaint may include such remedy as could have been included in a determination (whether described as a determination, award, recommendation or otherwise) made by the former ombudsman under the former scheme in question immediately before commencement.
(4) Where such a determination includes an award against the respondent of compensation payable to the complainant, section 229(8)(b) and paragraph 16 of Schedule 17 apply in relation to such an award as they apply in relation to a money award (as defined in section 229(2)(a)).
(5) Where such a determination includes a requirement for the respondent to take any steps in relation to the complainant, section 229(9) and (10) apply in relation to such a requirement as they apply in relation to a direction under section 229(2)(b).
(6) Where the former scheme in question, as it had effect immediately before commencement, included provision for the award of costs, an ombudsman may, on determining the relevant existing complaint, award costs in accordance with that provision (irrespective of whether those costs were incurred, or relate to anything done, before or after commencement); and subsections (6) and (7) of section 230, and paragraph 16 of Schedule 17, apply in relation to such an award of costs as they apply in relation to an award under that section.
(7) Where, in relation to a relevant existing complaint, the former scheme in question was the FSA scheme -
and subsections (4)(c) and (5) to (7) of section 228 (determination of complaints) do not apply in relation to the complaint.
(8) Where, in relation to a relevant existing complaint, the former scheme in question was the SFA scheme -
and subsections (4)(c) and (5) to (7) of section 228 do not apply in relation to the complaint.
(9) Where, in relation to a relevant existing complaint -
the extent to which the determination of the complaint under the new scheme is binding and final depends on the terms of the arbitration (which are not affected by this Order); and subsections (4)(c) and (5) to (7) of section 228 do not apply in relation to the complaint.
(10) Where, in relation to a relevant existing complaint -
the determination of the complaint under the new scheme is (notwithstanding section 228(5)) not binding on the respondent if he complies with equivalent conditions.
(11) But subject to paragraphs (1) to (10), section 228 applies in relation to a relevant existing complaint as it applies in relation to a complaint of the kind mentioned in section 226(1) (compulsory jurisdiction).
Determination of relevant new complaints
7.
- (1) Sections 228 to 230 apply in relation to a relevant new complaint as they apply in relation to a complaint of the kind mentioned in section 226(1) (compulsory jurisdiction), subject as follows.
(2) In determining, in relation to a relevant new complaint -
an ombudsman is to take into account what determination the former ombudsman might have been expected to reach, and 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 immediately before commencement.
Complaints determined before commencement: adjudication under the IMRO scheme
8.
- (1) This article applies where, before commencement -
(2) If the matter was subject to adjudication at commencement, this Order does not affect that adjudication and the relevant provisions of the IMRO scheme are to continue to apply so far as practicable, provided that references to the Investment Ombudsman or "the Ombudsman" are to be read as references to the scheme operator or an ombudsman appointed under paragraph 4 of Schedule 17, as appropriate.
(3) If the matter had not been referred to adjudication before commencement, if the complainant accepts adjudication, the scheme operator must appoint an adjudicator to determine the matter; and if the complainant agrees to the appointment of the adjudicator, the respondent must concur in the reference to adjudication.
(4) For the purposes of paragraph (3), the relevant provisions of the IMRO scheme are to apply, so far as practicable, as they would have applied to adjudication under that scheme, references to the Investment Ombudsman or "the Ombudsman" being read as references to the scheme operator or an ombudsman appointed under paragraph 4 of Schedule 17, as appropriate.
Complaints determined before commencement: appeals under the SFA scheme
9.
- (1) This article applies where a complaint had been determined before commencement by a person appointed as an arbitrator under the SFA scheme.
(2) Where, at commencement, the determination was the subject of an appeal, or an application for leave to appeal, under that scheme which had not been determined or withdrawn, this Order does not affect that appeal or that application for leave (and any ensuing appeal), and (subject to paragraph (4)) the relevant provisions of that scheme are to continue to apply to that appeal or application (and any ensuing appeal) so far as practicable.
(3) Where, at commencement, an application for leave to appeal against the determination was capable of being entertained under that scheme, the relevant provisions of that scheme are (subject to paragraph (4)) to apply, so far as practicable, to the making of any such application for leave and any ensuing appeal, as they would have applied to an application for leave or an appeal before commencement.
(4) The scheme operator may appoint such persons, on such terms and for such duration, as it thinks fit to hear any appeal or application for leave to appeal made after commencement pursuant to paragraph (2) or (3); and for the purposes of those paragraphs, references in the relevant provisions of the SFA scheme to the Securities and Futures Authority Limited or its Arbitration Secretariat are to be read as references to the scheme operator.
Complaints determined before commencement: appeals under the building societies scheme
10.
- (1) This article applies where a complaint had been determined before commencement under the building societies scheme.
(2) Where, at commencement -
notwithstanding any repeal of those subsections they continue to apply as if they provided for the Court to direct that the complaint be dealt with under the new scheme as a relevant existing complaint.
Information
11.
- (1) Any information held by any person responsible for the operation of a former scheme ("the former holder") in connection with the operation of a former scheme may be disclosed by that person to the scheme operator or to an ombudsman ("the new holder").
(2) Any such disclosure is not to be treated as contravening any restriction on disclosure of the information (imposed by statute or otherwise) to which the former holder is subject.
(3) When information has been disclosed in accordance with this article, the new holder is to be treated as subject to any such restriction on disclosure as would have applied to the former holder (subject to any exceptions which would have so applied).
(4) But paragraph (3) does not prevent the application of section 31(4A) of the Data Protection Act 1998[12] (which was inserted by section 233 of the Act, and provides for an exemption in respect of the processing of personal data for the purpose of discharging functions under Part XVI of the Act) to information which has been disclosed in accordance with this article.
(5) Sections 231 and 232 (ombudsman's power to require information, and powers of court where information required) apply in relation to relevant complaints as they apply in relation to complaints relating to acts or omissions occurring after commencement.
Funding and fees
12.
- (1) In section 234(1) (industry funding), the reference to the operation of the new scheme in relation to the compulsory jurisdiction is to be taken to include the operation of the scheme in relation to relevant complaints by virtue of this Order.
(2) In paragraph 15 of Schedule 17 (fees), the references to "a complaint" are to be taken to include a relevant complaint.
(3) Any fee which, by virtue of paragraph (2), is owed to the scheme operator under paragraph 15 of Schedule 17 by a respondent who is not an authorised person, may be recovered as a debt due to the scheme operator.
Exemption from liability in damages
13.
In paragraph 10(1) of Schedule 17 (exemption from liability in damages), the reference to functions under the Act in relation to the compulsory jurisdiction is to be taken to include functions exercisable by virtue of this Order.
Privilege
14.
In paragraph 11 of Schedule 17 (privilege), the reference to "a complaint which is subject to the compulsory jurisdiction" is to be taken to include a relevant complaint.
Record-keeping and reporting requirements relating to relevant complaints
15.
The Authority may make rules applying to authorised persons with respect to the keeping of records and the making of reports in relation to relevant complaints.
Anticipatory consultation on scheme rules
16.
If, before 19th July 2001, any consultation was undertaken -
those requirements are to that extent to be taken to have been satisfied.
Liability of former schemes in respect of pre-commencement acts and omissions
17.
- (1) Any liability incurred by a former ombudsman or other person responsible for the operation of a former scheme as a result of an act or omission occurring before commencement in dealing with (or failing to deal with) a complaint referred to that scheme is, after commencement, a liability of the scheme operator.
(2) For the purposes of paragraph (1), it is immaterial whether the complaint is a relevant existing complaint.
(b) appoint one or more independent persons ("transitional investigators") to be responsible for the conduct of investigations in accordance with the transitional complaints scheme.
(2) If the Authority exercises the power in paragraph (1) -
(b) the Authority may provide in the transitional complaints scheme for such provisions of paragraph 8 of that Schedule as it considers appropriate to apply in relation to that scheme;
(c) the investigator mentioned in paragraph 7(1)(b) of that Schedule may be (but need not be) appointed also as a transitional investigator; and
(d) the reference, in Part 1 of Schedule 1 to the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001[13], to the investigator appointed by the Authority in accordance with paragraph 7 of Schedule 1 to the Act includes a person appointed as a transitional investigator in accordance with this article.
(3) The reference in paragraph 7(1)(a) of Schedule 1 to functions of the Authority does not include the functions conferred by this article.
Anticipatory consultation on transitional complaints scheme
19. If
-
those requirements are to that extent to be taken to have been satisfied.
Exemption from liability for damages
20.
Neither a transitional investigator nor a person appointed to conduct an investigation on his behalf under a provision of a transitional complaints scheme is to be liable in damages for anything done or omitted in the discharge, or purported discharge, of his functions in relation to the investigation of a complaint.
Tony McNulty
Nick Ainger
Two of the Lords Commissioners of Her Majesty's Treasury
27th June 2001
[2] The scheme is comprised in terms of reference published by the Office of the Banking Ombudsman in May 1995.back
[3] The scheme was published by the Office of the Building Societies Ombudsman in a document called "The Building Societies Ombudsman Scheme" in August 1998.back
[4] 1986 c. 60. Paragraph 4 of Schedule 7 was modified by S.I. 1992/3218, Sch. 9, para 46; and by S.I. 1995/3275, Sch. 7, para. 44.back
[5] Particulars of the arrangements may be obtained from the Authority at the address given in the Explanatory Note to this Order.back
[6] The scheme is comprised in terms of reference contained in the Annual Report for 1999 published by the Insurance Ombudsman Bureau in March 2000.back
[7] The terms of reference of the scheme are comprised in "The Ombudsman Memorandum" which forms Annex B to Chapter IV of the rules of the Investment Management Regulatory Organisation Limited (IMRO). These are contained in a separate document called "The Investment Ombudsman", published by IMRO in May 1999.back
[8] The scheme is contained in a document called "The Rules of the Personal Insurance Arbitration Service", published by the Chartered Institute of Arbitrators on 31 January 1997.back
[9] The scheme is contained in a document called "The Ombudsman's Terms of Reference", published by the Personal Investment Authority Ombudsman Bureau Limited on 14 November 2000 and reissued as a separate document in February 2001.back
[10] The scheme is contained in (i) a document called "The Complaints Bureau of the Securities and Futures Authority (SFA) - A Service for Investors", published by the Financial Ombudsman Service on behalf of the SFA in February 2001; and (ii) the SFA Consumer Arbitration Scheme Rules, contained in an Information Pack issued by the SFA Arbitration Secretariat on 1 February 1999.back
[11] 1986 c. 53. Subsection (5) was amended by the Building Societies Act 1997 (c. 32), Sch. 7, para 36.back