Draft/Proposed Heads of Bill
Financial Services and Pensions Ombudsman Bill
Head
Number
Head Content
Part One
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Short title and commencements
Interpretation generally
Repeals
Power of the Minister to make Regulations
Objects of the Ombudsman
Part Two
Establishment of the Financial Services and Pensions Ombudsman Council
Dissolution of the Financial Services Ombudsman Council
Operation of the Council
Functions and powers of the Council
Council chairperson to appear before Oireachtas committee
Funding of Ombudsman
Council chairperson to provide Minister with reports
Part Three
Office of the Financial Services and Pensions Ombudsman
Dissolution of Financial Services Ombudsman Bureau and Pensions Ombudsman
21
22
Appointment of the Financial Services and Pensions Ombudsman and Deputy Financial Services
and Pensions Ombudsman and provisions in respect of Acting Financial Services and Pensions
Ombudsman
Salary and Superannuation of the Ombudsman and Deputy Ombudsman
Appearance before the Oireachtas
Transfer of staff to Office
Staff of the Office
Immunity/absolute privilege in defamation of Ombudsman and Deputy Ombudsman and officers
of the Office
Consultants and advisors
Transfer of assets, property, rights and liabilities, continuation of leases, licences and permissions
23
24
25
26
27
28
Transfer of responsibility for liabilities arising before transfer
Exchange of information
Confidentiality
Functions and powers of the Ombudsman
Transfer of functions to Office
Provisions consequent upon transfer of functions, assets and liabilities to Office
29
Saving for certain acts
16
17
18
19
20
Part Four
1
30
Ombudsman to arrange for preparation of annual estimate of income and expenditure
31
32
Ombudsman to ensure proper accounts are kept in respect of the Office
Ombudsman to arrange for the preparation of annual statement of accounts and an annual report
of activities
Audit by the Comptroller and Auditor General
Ombudsman to publish certain other reports
Ombudsman to prepare strategic plan
Part Five
Complaints to the Ombudsman
Death or disability of complainant
Investigation by the Ombudsman
Jurisdiction of Ombudsman
Staying of Court proceedings
Internal Dispute Resolution procedures
Declining to Investigate
Conduct of Investigation
Mediation
Obstruction of the Work of the Ombudsman
Adjudication of complaints and redress
Decisions of the Ombudsman
Appeals process
Enforcement of Ombudsman decisions
Ombudsman may refer questions of law to High Court
Part Six
Power of the Court to grant injunctions in certain cases
Office and the Council to co-operate with Regulatory Authorities and others
Reciprocal arrangements with other European Economic Area countries
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
2
PART 1
PRELIMINARY AND GENERAL
Head 1
Short title and commencements
Text for Bill
(1)
This Act may be cited as the Financial Services and Pensions Ombudsman Act 2016.
(2)
This Act shall come into operation on such day or days as the Minister may appoint
by order or orders either generally or with reference to any particular purpose or
provision and different days may be so appointed for different purposes or different
provisions.
3
Head 2
Interpretation generally
Text for Bill
(1)
In this Act –
“act” includes an omission (and, accordingly, any reference to an act done includes an
omission made);
“Act of 2004” means the Public Service Management (Recruitment and Appointments)
Act 2004;
‘actual or potential beneficiary’ means a member, an external member, any person who
has been a member, any surviving dependant of a deceased member, any person
claiming to be a member or a surviving dependant of a deceased member, a contributor
to a PRSA, a personal representative of a deceased member or deceased contributor or
a widow or widower of a deceased member or deceased contributor, or any person who
is contractually entitled to benefit from a long-term financial product;
‘Office’ means the Office of the Financial Services and Pensions Ombudsman;
‘Office staff member’ means a person appointed under Head 18;
‘Bank’ means Central Bank of Ireland;
complaint’ means a complaint made or a dispute referred, as appropriate, by a
complainant about the conduct of a regulated financial service provider or pension
provider;
‘complainant’ means, where appropriate,
(a) a consumer,
(b) an actual or potential beneficiary, or
(c) a person acting on behalf of an actual or potential beneficiary.
‘conduct’ includes alleged conduct;
4
‘civil servant’ has the meaning assigned to it by the Civil Service Regulation Act,
1956 ;
“consumer” means any of the following:
(a) a person or group of persons, but not an incorporated body with an annual turnover
in excess of €3 million in the previous financial year (for the avoidance of doubt a
group of persons includes partnerships and other unincorporated bodies such as
clubs, charities and trusts, not consisting entirely of bodies corporate); or
(b) incorporated bodies having an annual turnover of €3 million or less in the previous
financial year (provided that such body shall not be a member of a group of
companies having a combined turnover greater than the said €3 million);
and includes where appropriate, a potential ‘consumer’;
‘Council’ means the Financial Services and Pensions Ombudsman Council established
by Head 6;
‘Council regulations’ means regulations made by the Council under Head 9 and in
force;
‘dependant’ means a dependant within the meaning of the rules of the scheme in
question;
‘Deputy Ombudsman’ means the Deputy Financial Services and Pensions Ombudsman
appointed under Head 15;
‘regulated financial service provider’ has the same meaning as section 2 of the Central
Bank Act 1942, as amended, includes any other financial service provider of a class
specified in regulations made by the Minister and also includes the following classes of
persons:
(a) credit intermediaries who are required to be authorised by the Director of Consumer
Affairs under Part IX of the Consumer Credit Act 1995 (No. 24 of 1995),
(b) pawnbrokers who are required to be authorised by the Director of Consumer Affairs
under Part XV of the Consumer Credit Act 1995,
5
(c) creditors with respect to the performance of their obligations under the Consumer
Credit Act 1995 and under the contract for the provision of credit to a consumer,
and under any contract of guarantee relating to the provision of that credit,
(d) owners of goods that are subject to a hire-purchase agreement under a hire-purchase
agreement with respect to the performance of their obligations under the Consumer
Credit Act 1995 and under the agreement, and under any contract of guarantee
relating to the agreement or any right to recover the goods from the hirer under the
agreement,
(e) owners of goods that are subject to a consumer-hire agreement with respect to the
performance of their obligations under the Consumer Credit Act 1995 and under
the agreement, and under any contract of guarantee relating to the agreement or any
right to recover the goods from the hirer under the agreement,
(f) mortgage lenders within the meaning of section 2 of the Consumer Credit Act 1995;
(g) the Voluntary Health Insurance Board established under the Voluntary Health
Insurance Act 1957;
‘investigation’ means the consideration by the Ombudsman of any complaint from
entry to Office up to and including formal investigation;
‘long-term financial service’ means a financial service within the meaning of the
Central Bank Act 1942, as amended, the term of which exceeds 6 years and is not
subject to annual renewal, sold to a consumer by a regulated financial service provider;
‘Ombudsman’ means the Financial Services and Pensions Ombudsman appointed
under Head 15;
‘Minister’ means Minister for Finance;
‘party’ means (a) in relation to a complaint against a regulated financial service provider, means the
consumer, the regulated financial service provider against whom the complaint is
made, and any other person who, in the opinion of the Ombudsman, should be
treated as a party to the complaint;
(b) in relation to a complaint or a dispute in relation to a pension provider, , the actual
or potential beneficiary or a person acting on their behalf, the person responsible
for the management of the scheme or PRSA, or other pension produces to which
the complaint relates and any other person who, in the opinion of the Ombudsman,
should be treated as a party to the complaint;
6
‘person responsible for the management of an occupational pension scheme’ includes:
(a) any trustee of the scheme or Trust RAC;
(b) any former trustee of the scheme or Trust RAC;
(c) any employer to whom the scheme relates;
(d) any former employer to whom the scheme relates; or
(e) any registered administrator of a scheme or Trust RAC;
(f) such other person or category of persons as may be prescribed
‘person responsible for the management of a PRSA’ includes:
(a) any provider;
(b) any former provider;
(c) any employer;
(d) any former employer; or
(e) such other person or category of persons as may be prescribed.
‘pension provider’ in relation to a scheme, means any employer who adheres or had
previously adhered to the scheme; any person or undertaking which provides or had
previously provided services to the scheme as a trustee, administrator, Registered
Administrator for the purposes of Part VI A of the Pensions Act 1990, consultant or
advisor, investment manager, custodian, paying agent, insurer or actuary; and any
person to whom the implementation or interpretation of the rules of the scheme has or
had been entrusted.
‘superannuation benefit’ means a pension, gratuity or other allowance payable on
resignation, retirement or death;
‘Occupational pensions scheme and PRSA’ means an occupational pension scheme, a
PRSA, a Trust RAC, or Group Personal Pensions Retirement Annuity Contract.
(2)
A word or expression that is used in this Act and is also used in the Central Bank Act
1942, as amended, or, as appropriate, the Pensions Act 1990, as amended, has the same
meaning in this Act that it has in in the Central Bank Act 1942, as amended, or, as
appropriate, the Pensions Act 1990, as amended.
7
(3)
In this Act “turnover” of the person or group of persons referred to in subhead (1)
shall be determined by calculating the income received from the person’s or group of
persons’ sales and services falling within the person’s or group of persons’ ordinary
activities after deduction of sales rebates and shall be calculated in respect of the
financial year prior to the year in which the complaint is made to the Ombudsman and
not the year or years in which the conduct complained of occurred.
8
Head 3
Head Title: Repeals
Text for Bill
(1)
The Acts of the Oireachtas specified in Part 1 of the Schedule are repealed to the
extent specified in the third column of that Part.
(2)
The statutory instruments specified in Part 2 of Schedule are revoked to the extent
specified in the third column of that Part.
9
Head No. 4
Head Title: Power of the Minister to make Regulations
Text for Bill
(1)
(2)
The Minister may make regulations at the request of the Ombudsman and shall consult
with the Council as appropriate for or with respect to matters that are,
(a)
required or permitted to be prescribed by this Act, or
(b)
necessary or convenient to be prescribed for the purpose of enabling the
Ombudsman to perform the functions imposed, and to exercise the powers
conferred, on the Ombudsman by this Act.
In particular, a regulation under subhead (1) may do any of the following:
(a)
prescribe who may be a complainant,
(b)
specify any other class of persons deemed to be regulated financial service
providers for the purpose of this Act,
(c)
prescribe matters that the Ombudsman must take into account when
investigating or adjudicating a complaint,
(d)
prescribe procedures to be followed in processing a complaint,
(e)
specify circumstances in which the Ombudsman can dismiss a complaint, or
(f)
set the maximum amount of compensation that the Ombudsman may award to
a complainant.
(3)
As soon as practicable after the Minister has made regulations in accordance with
subhead (1), the Minister shall arrange to lay them before each House of the Oireachtas.
(4)
A House of the Oireachtas may pass a resolution annulling regulations laid before the
House in accordance with subhead (3), but only within 21 sitting days after they are
laid.
(5)
The Minister may request an independent review of the activities of the Office, to
include a strategic and operational examination of the organisation as he sees fit
and, as soon as possible after the review is conducted, it should be published on the
Ombudsman’s office website.
10
(6)
The Minister may require the Ombudsman, by direction in writing, to prepare and
submit to him or her a report in relation to any particular matter relating to the activities
of the Ombudsman, or any issue relating to financial services providers or pension
providers as the Minister considers appropriate.
11
Head 5
Head Title: Objects of the Ombudsman
Text for Bill
The Ombudsman shall (a) be an independent officer,
(b) resolve complaints made in accordance with this Act concerning the conduct of
regulated financial service providers or pension providers involving the provision of a
service they provide, an offer to provide such a service or a failure or refusal to
provide such a service, in a manner that is appropriate and proportionate to the nature
of the complaint, by way of mediation, investigation or adjudication,
(c) ensure that the Ombudsman is accessible to the public and that complaints about the
conduct of regulated financial services providers or pension providers are dealt in an
informal manner efficiently, effectively and fairly,
(d) improve public understanding of the role and functions of the Ombudsman,
(e) improve public understanding of issues related to complaints against regulated
financial service providers, pension providers and related consumer protection matters
by publishing decisions, information and guidance notes on procedures and processes,
(f) ensure that the Ombudsman engages with regulated financial services providers and
pension providers to improve engagement with their consumers in internal dispute
resolution practices, and
(g) exercise such other jurisdiction as is conferred on the Ombudsman by this Act or any
other enactment.
12
PART 2
ESTABLISHMENT OF THE COUNCIL
Head No. 6
Head Title: Establishment of the Financial Services and Pensions Ombudsman Council
Text for Bill
(1)
There is established by this Head a council to be known as the ‘Financial Services and
Pensions Ombudsman Council’ (hereinafter referred to as ‘the Council’) to perform
the functions conferred on it by this Act.
(2)
The Council is to consist of a maximum of 7 persons, one of whom is the
Chairperson. At least two members must have knowledge or experience of consumer
protection and other consumer issues relating to the provision of financial services; at
least one member must have knowledge or experience of the financial services
industry; and at least one member must have knowledge or experience in relation to
the pensions industry.
(3)
The Minister shall appoint the members of the Council following a public competition
appointment process. One member of the Council shall be nominated by the Minister
for Social Protection following a public competition, and shall be appointed by the
Minister.
(4)
A member of the Council holds office for such period, not exceeding 5 years, as is
specified in the member's document of appointment, unless the member ceases to hold
office under subhead (6).
(5)
Such a member is eligible for reappointment for additional terms as the Minister sees
fit, with the exception of the member nominated by the Minister for Social Protection,
who must be re-nominated by the Minister for Social Protection before reappointment
by that Minister.
(6)
A person ceases to be a member if the person –
(a)
dies,
(b)
completes a term of office and is not reappointed,
(c)
resigns the office by notice in writing addressed to the Minister,
13
(d)
has, without the permission of the other members, been absent from meetings
of the Council for a consecutive period of 6 months,
(e)
is, with the person’s consent, nominated as a candidate for election as a member
of either House of the Oireachtas,
(f)
is, with the person’s consent, nominated as a candidate for election as a member
of the European Parliament or to fill a vacancy in the membership of that
Parliament,
(g)
is, with the person’s consent, nominated as a candidate for election as a member
of a local authority,
(h)
is adjudged bankrupt (either in the State or elsewhere) or enters into a
composition with the person’s creditors ,
(i)
becomes physically or mentally incapable of performing the duties of a member,
(j)
is convicted of an offence (either in the State or elsewhere) and sentenced to
serve a term of imprisonment for the offence, or
(k)
is removed from office by the Minister:
(i) for proven misconduct or incompetence, or
(ii) in order to enable the Council to function effectively.
(7)
If the office of a member becomes vacant, the Minister for Finance is required to
arrange for a suitably qualified person to be appointed to fill the vacancy in
accordance with this Act as soon as possible after the date on which the vacancy
occurred.
(8)
Subhead (6) does not apply if the term of office of the member concerned was due to
expire within 60 days after the vacancy occurred.
(9)
The Minister shall by order, appoint a day to be the establishment day for the purposes
of this Act.
14
Head No. 7
Head Title: Dissolution of the Financial Services Ombudsman Council
Text for Bill
(1)
The Financial Services Ombudsman Council is dissolved.
(2)
This Head shall come into operation on the establishment day.
15
Head No. 8
Head Title: Operation of the Council
Text for Bill
(1)
The Minister shall appoint a Chairperson from among the members of the Council.
(2)
The Ombudsman shall, at the request of the Chairperson, designate a member of the
Office staff to be Secretary to the Council.
(3)
Members of the Council are entitled to be paid such fees and travelling and
subsistence allowances as set by the Minister for Finance, in consultation with the
Minister for Public Expenditure and Reform, to be paid out of the funds of the Office.
(4)
The procedure for convening meetings of the Council and for the conduct of business
at those meetings is, subject to this Head, to be as determined by the Council. The
Council may determine that procedure by means of rules or standing orders or by any
other means.
(5)
The quorum for a meeting of the Council is a majority of the members of the Council.
(6)
A meeting of the Council is to be presided over by—
(a)
the Chairperson, or
(b)
in the absence of the Chairperson, a member elected by the members of the
Council present at the meeting.
(7)
A decision supported by a majority of the votes cast at a meeting of the Council at
which a quorum is present is the decision of the Council.
(8)
If the votes are equal on a motion put at a meeting of the Council, the person who is
presiding at the meeting has a casting as well as a deliberative vote.
(9)
The Council may, if it thinks fit, transact any of its business by the circulation of
papers among all its existing members. A resolution approved in writing by a majority
of those members is taken to be a decision of the Council.
16
(10)
The Council may, if it thinks fit, transact any of its business at a meeting at which its
members (or some of its members) participate through any means appropriate (e.g.
tele-conferencing, video-conferencing), but only if any member who speaks on a
matter being considered by the meeting can be heard by the other members. For the
purposes of:
(a)
the approval of a resolution under subparagraph (1), or
(b)
a meeting held in accordance with subparagraph (2),
the members have the same voting rights as they have at an ordinary meeting of the
Commission.
(11)
Papers may be circulated among Council members for the purposes of subhead 13 by
the electronic transmission of the information in the papers concerned
17
Head No. 9
Head Title: Functions and powers of the Council
Text for Bill
(1)
The Council has such powers as are necessary to enable it to perform its functions.
(2)
The functions of the Council are—
(a) to prescribe by regulation levies or fees to be paid by specified classes of financial
services providers, subject to the consent of the Minister,
(b) to keep under review the efficiency and effectiveness of the Office and to advise
the Minister, either at the Minister's request or on its own initiative, on any matter
relevant to the operation of the Office, and
(c) to advise the Ombudsman on any matter on which the Ombudsman seeks advice,
(d) to approve draft statement of accounts prepared by the Ombudsman before it is
submitted to Minister for final approval,
(e) to carry out such other activities as are prescribed by this Act.
(3)
The Council has no role with respect to how the Ombudsman deals with a particular
complaint.
(4)
Whenever the Chairperson requests, the Ombudsman shall, as far as it is possible to do
so, arrange for the Council to be provided with such administrative services (including
technical and legal advice) as the Council requires to enable it to perform its functions.
18
Head No. 10
Head Title: Council chairperson to appear before Oireachtas committee
Text for Bill
(1)
The Chairperson of the Council is required to attend any meeting of any Committee of
the Houses of the Oireachtas whenever asked to do so by the committee and to
provide such information (including documents) as the committee specifies and as is
in the possession of, or is available to, that chairperson.
(2)
Such a committee is not entitled to request the chairperson of the Council to provide
information relating to a specific complaint that was or is under investigation by the
Ombudsman or any complaint that is then being investigated, mediated or
adjudicated by the Ombudsman and the chairperson must refuse to comply with a
request from the committee to provide it with any such information.
(3)
Where the Chairperson is of the opinion that a matter in respect of which he or she is
requested to give an account before a Committee is a matter to which subhead (2)
applies, he or she shall inform the Committee of that opinion and the reasons for the
opinion and, unless the information is conveyed to the Committee at a time when the
he is before it, the information shall be so conveyed in writing.
(4)
Where the Chairperson has informed a Committee of his or her opinion in accordance
with subhead (3) and the Committee does not withdraw the request in so far as it relates
to a matter the subject of that opinion:
(a)
the Chairperson may, not later than 42 days after being informed by the
Committee of its decision not to do so, apply to the High Court in a summary
manner for determination of the question whether the matter is one to which
subhead (3) applies, or
(b)
the Chairperson of the Committee may, on behalf of the Committee, make such
an application, and the High Court shall determine the matter.
(5)
Pending the determination of an application under subhead (4), the Chairperson shall
not attend before the Committee to give account for the matter the subject of the
application.
(6)
If the High Court determines that the matter concerned is one to which subhead (3)
applies, the Committee shall withdraw the request referred to in subhead (2), but if the
High Court determines that subhead (3) does not apply, the Chairperson shall attend
before the Committee to give account for the matter.
19
Head No.11
Head Title: Funding of Ombudsman
Text for Bill
(1)
The purpose of this Head is to enable the Ombudsman to have sufficient funds to
enable that Ombudsman to perform the functions imposed, and to exercise the powers
conferred, on that Ombudsman by this or any other Act.
(2)
The Ombudsman will be funded by both the Exchequer and by a levies or fees on
financial services industry to be prepared in accordance with the statement of account
to be produced under Head 29.
(3)
In relation to the financial services industry levy, Council regulations may propose
the levies and charges to be raised for the part funding from industry of the services
provided by the Ombudsman for agreement by the Minister and prescribe said levies
or fees to be paid by specified classes of financial service providers.
(4)
Without limiting subhead (2), regulations made by the Council may provide for any of
the following matters:
(a) the persons, or classes of persons, who are required to pay specified kinds of
levies or fees;
(b) the amounts of those levies or fees;
(c) the periods in respect of which, or the dates by which, specified levies or fees
are to be paid to the Ombudsman;
(d) penalties that are payable by a person who fails to pay a levy on time or pay a
required fee;
(e) the keeping of records, and the making of returns to the Ombudsman, by
persons who are liable to pay a specified levy or a specified fee;
(f) the collection and recovery of levies and fees.
(5)
The Ombudsman may, by proceedings brought in a court of competent jurisdiction,
recover as a debt an amount of levy or fee payable under Council regulations made
for the purpose of this Head.
(6)
The Exchequer contribution to the operation of the Office may be sanctioned by the
Minister and paid out of moneys provided by the Oireachtas.
20
Head No. 12
Head Title: Council chairperson to provide Minister with reports
Text for Bill
The Council’s Chairperson must prepare an annual report and submit it to the Minister to
cover a range of and governance issues which are encompassed within the powers of the
Council set out in Head 9.
21
PART 3
ESTABLISHMENT OF OFFICE AND DISSOLUTION OF BODIES
Head 13
Head Title: Office of the Financial Services and Pensions Ombudsman
Text for Bill
(1)
There is established by this Head, a body, to be known as the ‘Office of the Financial
Services and Pensions Ombudsman’ (hereinafter referred to as ‘the Office’), to
perform the functions conferred on it by this Act.
(2)
The Office consists of the Financial Services and Pensions Ombudsman, the Deputy
Financial Services and Pensions Ombudsman and the staff members holding office
under Head 19.
(3)
The Minister shall, by order, appoint a day to be the establishment day for the
purposes of this Act.
22
Head 14
Head Title: Dissolution of Financial Services Ombudsman Bureau and Pensions
Ombudsman
Text for Bill
(1)
The Financial Services Ombudsman Bureau and the Pensions Ombudsman (each of
which is, in this Act, referred to as a “dissolved body”) are dissolved.
(2)
This Head shall come into operation on the establishment day.
23
Head 15
Head Title: Appointment of the Financial Services and Pensions Ombudsman and
Deputy Financial Services and Pensions Ombudsman
Text for Bill
(1)
The Financial Services and Pensions Ombudsman (hereinafter referred to as
Ombudsman) and the Deputy Financial Services and Pensions Ombudsman
(hereinafter referred to as Deputy Ombudsman) shall be appointed by the Minister, in
consultation with the Minister for Social Protection, from among persons in respect of
whom a recommendation for the purposes of this Head has been made by the Public
Appointments Service consequent upon the holding of a competition in accordance
with the Act of 2004.
(2)
A person who has been appointed as Ombudsman or Deputy Ombudsman before the
commencement of this Head is taken to have been appointed under their existing terms
and conditions.
(3)
The Public Appointments Service shall, in relation to a competition referred to in
subhead (1), not make a recommendation for the purposes of that subhead in respect
of more than 3 persons, in respect of each post advertised
(4)
The Ombudsman or Deputy Ombudsman shall hold office for such period not
exceeding 5 years as is specified in the document of appointment.
(5)
Such a person is eligible for reappointment at the end of a period of office.
(6)
A person is not eligible for appointment as the Ombudsman or Deputy Ombudsman if
the person(a)
is a member of either House of the Oireachtas or is, with the person’s consent,
nominated as a candidate for election as such a member, or
(b)
is a member of the European Parliament or is, with the person’s consent,
nominated as a candidate for election as such a member or to fill a vacancy in
the membership of that Parliament, or
(c)
is a member of a local authority or is, with the person’s consent, nominated as
a candidate for election as such a member.
(7)
The Ombudsman or Deputy Ombudsman shall hold office upon and subject to such
terms and conditions (including terms and conditions relating to remuneration,
allowances and superannuation) as may be determined by the Minister, with the consent
of the Minister for Public Expenditure and Reform.
(8)
Neither the Ombudsman nor Deputy Ombudsman shall hold any other office or
employment or carry on any business without the consent of the Minister.
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(9)
Within the scope of the authority conferred by the Ombudsman, the Deputy
Ombudsman may perform any of the functions, or exercise any of the powers, of the
Ombudsman imposed or conferred on the Ombudsman by this or any other Act.
(10)
Any act done or omitted to be done in accordance with subhead (9) is taken to have
been done or omitted to have been done by the Ombudsman.
(11)
The Deputy Ombudsman is entitled to perform the functions and exercise the powers
under subhead (9) free from interference by any other person, except that they shall(a)
comply with directions given by the Ombudsman, and
(b)
keep the Ombudsman informed about the progress made with respect to dealing
with complaints and activities that are assigned to the Deputy Ombudsman.
25
Head 16
Head Title: Salary and Superannuation of the Ombudsman and Deputy Ombudsman
Text for Bill
(1)
The Ombudsman and the Deputy Ombudsman are entitled to be paid such remuneration
and allowances (including travel and subsistence allowances) as the Minister, in
consultation with the Minister for Public Expenditure and Reform, determines.
(2)
The Minister shall, with the consent of the Minister for Public Expenditure and
Reform, make and carry out such scheme or schemes for the granting of
superannuation benefits to or in respect of the Ombudsman, and Deputy Ombudsman
as he may think fit.
(3)
The Minister may at any time, with the consent of the Minister for Public Expenditure
and Reform, make and carry out a scheme or schemes amending or revoking a
scheme under this Head.
(4)
A scheme under this Head shall be laid before each House of the Oireachtas as soon
as may be after it is made and if a resolution annulling the scheme is passed by either
such House within the next twenty-one days on which that House has sat after the
scheme is laid before it, the scheme shall be annulled accordingly, but without
prejudice to the validity of anything previously done thereunder.
(7)
If any dispute arises as to the claim of any person to, or the amount of, any
superannuation benefit payable in pursuance of a scheme or schemes under this
Head, such dispute shall be submitted to the Minister who shall refer it to the
Minister for Public Expenditure and Reform, whose decision shall be final.
26
Head 17
Head Title: Appearance before the Oireachtas
Text for Bill
(1)
In this Head “Committee” means a Committee appointed by either House of the
Oireachtas or jointly by both Houses of the Oireachtas, other than—
(a)
the Committee of Dáil Éireann established under the Standing Orders of Dáil
Éireann to examine and report to Dáil Éireann on the appropriation accounts
and reports of the Comptroller and Auditor General,
(b)
the Committee on Members’ Interests of Dáil Éireann or the Committee on
Members’ Interests of Seanad Éireann, or
(c)
a subcommittee of a committee referred to in paragraph (a) or (b).
(2)
Subject to subhead (3), the Ombudsman shall, at
the request in writing of a
Committee, attend before it to give account for the general administration of the
Office.
(3)
The Ombudsman shall not be required to give account before a Committee for any
matter relating to a specific complaint that was or is under investigation/submitted to
the Ombudsman
(4)
Where the Ombudsman is of the opinion that a matter in respect of which he or she is
requested to give an account before a Committee is a matter to which subhead (3)
applies, he or she shall inform the Committee of that opinion and the reasons for the
opinion and, unless the information is conveyed to the Committee at a time when the
Ombudsman is before it, the information shall be so conveyed in writing.
(5)
Where the Ombudsman has informed a Committee of his or her opinion in accordance
with subhead (4) and the Committee does not withdraw the request referred to in
subhead (2) in so far as it relates to a matter the subject of that opinion—
(a) the Ombudsman may, not later than 42 days after being informed by the
Committee of its decision not to do so, apply to the High Court in a summary
manner for determination of the question whether the matter is one to which
subhead (3) applies, or
(b) the Chairperson of the Committee may, on behalf of the Committee, make
such an application, and the High Court shall determine the matter.
(6)
Pending the determination of an application under subhead (5), the Ombudsman shall
not attend before the Committee to give account for the matter the subject of the
application.
(7)
If the High Court determines that the matter concerned is one to which subhead (3)
applies, the Committee shall withdraw the request referred to in subhead (2), but if
27
the High Court determines that subhead (3) does not apply, the Ombudsman shall
attend before the Committee to give account for the matter.
(8)
In the performance of his or her duties under this Head, the Ombudsman shall not
question or express an opinion on the merits of any policy of the Government or a
Minister of the Government or on the merits of the objectives of such a policy
28
Head 18
Head Title: Transfer of staff to Office
Text for Bill
(1)
The Office shall accept into its employment on the establishment day each person who
immediately before that day was a member of the staff of a dissolved body on such
terms and conditions of service relating to remuneration and superannuation as are not
less favourable than the terms and conditions of service relating to remuneration and
superannuation to which the person was subject immediately before that day.
(2)
The terms and conditions to which a person is subject upon his or her becoming a
member of the staff of the Office in accordance with subhead (1) shall be deemed to
have been determined by the Office in accordance with Head 19(3).
(3)
In relation to a person transferred to the staff of the Office under subhead (1),
previous service with a dissolved body shall be reckonable for the purpose of, but
subject to any exceptions or exclusions in, the following enactments:
(a) the Redundancy Payments Acts 1967 to 2012 ;
(b) the Protection of Employees (Part-Time Work) Act 2001 ;
(c) the Protection of Employees (Fixed-Term Work) Act 2003 ;
(d) the Minimum Notice and Terms of Employment Acts 1973 to 2005 ;
(e) the Unfair Dismissals Acts 1977 to 2007 ;
(f) the Terms of Employment (Information) Acts 1994 to 2012 ;
(g) the Organisation of Working Time Act 1997;
(h) the Parental Leave Acts 1998 and 2006 ;
(i) the Carer’s Leave Act 2001 ;
(j) the Maternity Protection Acts 1994 and 2004 ;
(k) the Adoptive Leave Acts 1995 and 2005.
29
Head 19
Head Title: Staff of the Office
Text for Bill
(1)
Subject to this Head, the Ombudsman is responsible for appointing and employing
persons necessary for the proper functioning of the Office.
(2)
Persons may be appointed under subhead (1) on a permanent, temporary or parttime basis, as consultants or on a contract for services basis.
(3)
The terms and conditions of service of a member of the staff of the Office shall be
such as may be determined from time to time by the Minister with the approval of the
Minister for Public Expenditure and Reform.
(4)
There shall be paid by the Office to the members of its staff such remuneration and
allowances as, from time to time, the Office, with the consent of the Minister, with the
consent of the Minister for Public Expenditure and Reform, determines.
(5)
Appointments under this Head shall be subject to the Act of 2004 and the Civil
Service Regulation Acts 1956 to 2005.
(6)
The members of the staff of the Office shall perform their functions under the
direction and control of the Ombudsman.
(7)
Any act done or omitted to be done in accordance with subhead (6) is taken to have
been done or omitted to have been done by the Ombudsman.
(8)
Any member of the staff of the Office is entitled to perform the functions and exercise
the powers authorised under subhead (6) free from interference from any other
person, except that the staff member shall(a) comply with directions given by the Ombudsman or the Deputy Ombudsman,
and
(b) keep the Ombudsman, or the Deputy Ombudsman, informed about the
progress made with respect to dealing with complaints and activities that are
assigned to the staff member.
30
(9)
Any member of the staff of the Office who on the commencement of this Act is
engaged in duties in the Ombudsman shall become an officer of the Office, but will
retain their terms and conditions of service.
(10)
Any member of the staff of the Office that was previously employed by the Office of
the Pensions Ombudsman may, within two years of the date of commencement of this
Act, be designated by order of the Minister for Social Protection and shall, on
being so designated, be transferred to and become a civil servant in the Department
of Social Protection.
31
Head 20
Head title: Immunity/absolute privilege in defamation of Ombudsman
and Deputy Ombudsman and staff of the Office
Text for Bill
(1)
A staff member of the Office is not liable, whether on the ground of want of jurisdiction
or on any other ground, to any civil or criminal proceedings in respect of any act done,
or omitted to be done, in the course of performing a function imposed, or exercising a
power conferred, on the member by or under this or any other Act unless it is proved
that the act was done, or omitted to be done, in bad faith.
(2)
Civil or criminal proceedings in respect of any act or omission referred to in
subhead (1) may be brought against a staff member of the Office only with the
leave of the High Court.
(3)
The High Court may grant leave under subhead (2) only if satisfied that there is
substantial evidence that the person to be proceeded against has acted, or omitted to
act, in bad faith.
(4)
For the purposes of this Head, ‘staff member of the Office’ includes the Ombudsman,
the Deputy Ombudsman and each of the members of the Council.
32
Head 21
Head title: Consultants and advisors
Text for Bill
The Ombudsman may from time to time engage such consultants or advisers as it may consider
necessary for the performance of its functions, and any fees due to a consultant or adviser
engaged under this Head shall be paid by the Office out of moneys at its disposal.
33
Head 22
Head title: Transfer of assets, property, rights and liabilities, continuation of leases,
licences and permissions
Text for Bill
(1)
All rights and liabilities of a dissolved body arising by virtue of any contract or
commitment (expressed or implied) entered into by it before the establishment day
shall on that day stand transferred to the Office.
(2)
Every right and liability transferred by subhead (1) to the Office may, on and
after the establishment day, be sued on, recovered or enforced by or against the
Office in its own name, and it shall not be necessary for the Office, or a dissolved
body, to give notice to the person whose right or liability is transferred by that
subhead of such transfer.
(3)
Every lease, licence, wayleave or permission granted by a dissolved body in relation
to land or other property vested in the Office by or under this Act, and in force
immediately before the establishment day, shall continue in force as if granted by the
Office.
34
Head 23
Head title: Transfer of responsibility for liabilities arising before transfer
Text for Bill
(1)
A claim in respect of any loss or injury alleged to have been suffered by any person
arising out of the performance before the establishment day of any of the functions of
a dissolved body shall on and after that day, lie against the Office and not against the
dissolved body.
(2)
Any legal proceedings pending immediately before the establishment day to which a
dissolved body is a party, shall be continued, with the substitution in the proceedings
of the Office in so far as they so relate, for the dissolved body.
(3)
Where, before the establishment day, agreement has been reached between the parties
concerned in settlement of a claim to which subhead (1) relates, the terms of which
have not been implemented, or judgment in such a claim has been given in favour of a
person but has not been enforced, the terms of the agreement or judgment, as the case
may be, shall, in so far as they are enforceable against a dissolved body, be
enforceable against the Office and not the dissolved body.
(4)
Any claim made or proper to be made by a dissolved body in respect of any loss or
injury arising from the act or default of any person before the establishment day shall
be regarded as having been made by or proper to be made by the Office and may be
pursued and sued for by the Office as if the loss or injury had been suffered by the
Office.
35
Head 24
Head title: Exchange of information
Text for Bill
(1)
Notwithstanding anything contained in any enactment, information held by the
Ombudsman may be transferred by the Ombudsman to the Pensions Authority or the
Bank, as appropriate, with a view to ensuring that the provisions of this Head operate
in a way that contributes to promoting the best interests of consumers and actual or
potential beneficiaries of regulated financial services and pensions services and to
the efficient and effective handling of complaints.
(2)
The Ombudsman may provide the Pensions Authority or the Bank, as appropriate, with
records or copies of records, or information, dealing with specified matters, or matters
of a specified kind, relevant to the performance of the Bank’s or Pension Authority
functions as appropriate.
(3)
The Ombudsman may make recommendations to the Bank, the Registrar of
Credit Unions or the Pensions Authority with respect to measures that these bodies
might take so as(a)
to effectively deal with persistent patterns of complaints made against
specified regulated financial service providers, a specified class of
those financial service providers or a specified pension provider.
(b)
to improve the way in which regulated financial service providers or pension
providers deal with complaints that are made against them, or
(c)
to effectively deal with any other matter relating to promoting the interests of
consumers and actual or potential beneficiaries of financial services or pensions.
(4)
A person who discloses information under or for the purpose of this Head does not incur
liability for defamation or other civil liability only because of the disclosure.
(5)
Nothing in this Head affects an obligation or power to provide information in any other
enactment.
36
Head 25
Head title: Confidentiality
Text for Bill
(1)
A person shall not, without the consent of the Ombudsman, disclose any information
obtained by him while performing (or as a result of having performed) duties as a
member, or member of the staff of, or an adviser or consultant to, the Ombudsman
(2)
A person who contravenes subhead (1) shall be guilty of an offence and shall be
liable on summary conviction to a Class A fine.
(3)
Nothing in subhead (1) shall prevent the disclosure of information in a report made
to the Ombudsman or by or on behalf of the Ombudsman to the Minister.
37
Head 26
Head Title: Functions and powers of the Ombudsman
Text for Bill
(1)
The Ombudsman shall be independent in the performance of its functions.
(2)
The principal function of the Ombudsman is to deal with complaints:
(a) informally,
(b) by way of mediation,
(c) formal investigation,
(d) through the conduct of an oral hearing, or
(e) by a combination of the various means,
as he considers appropriate and proportionate to the nature of the complaint.
(3)
The Ombudsman shall establish and maintain efficient and effective systems and
procedures so as to secure the processing, investigation and adjudication of complaints
in a timely and effective manner.
(4)
The Ombudsman shall adopt rules of procedure with respect to the following:
(a)
the making of complaints and the reference of disputes by complainants,
(b)
the dealing with complaints by informal means,
(c)
the dealing with complaints by formal investigation,
(d)
the dealing with complaints by mediation, and
(e)
the dealing with complaints by oral hearing
and shall publish in a manner easily accessible by the public any rules so adopted.
(5)
The Ombudsman shall have such powers as are necessary or incidental to the
performance of the function referred to in subhead (2).
(6)
Without prejudice to the generality of subhead (2), in performing its functions under
this Act, the Ombudsman may —
(a)
prepare and publish rules in accordance with Head 43(1),
(b)
advise, and shall when requested by the Minister, as appropriate,
make recommendations to the Government, the Minister, any other Minister of
the Government or any Minister of State, in relation to any proposals for
legislative change, or any other policy matters, concerning financial services
or pensions within the jurisdiction of the Ombudsman, or
(c)
submit to the Minister, and shall when requested by the Minister, and after
consultation with such persons as it considers appropriate having
regard to the proposals to be submitted, any other Minister of the Government
or any Minister of State any proposals it considers appropriate for amendment
of any enactment, or for new enactments, concerning financial services
or pensions within the jurisdiction of the Ombudsman.
38
(7)
The Ombudsman may authorise the Deputy Ombudsman or any other Office staff
member, by name, office or appointment, to perform any of the functions, or exercise
any of the powers, imposed or conferred on the Ombudsman by this or any other Act.
(8)
The Ombudsman is entitled to perform the functions imposed, and exercise the
powers conferred, by this Act free from interference by any other person and, when
dealing with a particular complaint, is required to act in an informal manner and
according to equity, good conscience and the substantial merits of the complaint
without undue regard to technicality or legal form.
39
Head 27
Head Title: Transfer of functions to Office
Text for Bill
(1)
All functions that, immediately before the establishment day, were vested in the
dissolved bodies are transferred to the Office.
(2)
References in any Act of the Oireachtas passed before the establishment day or in any
instrument made before that day under an Act of the Oireachtas to—
(a) the Financial Services Ombudsman Bureau, or
(b) the Pensions Ombudsman
shall, on and after that day, be construed as references to the Office.
(3)
References in any Act of the Oireachtas passed before the establishment day or in any
instrument made before that day under an Act of the Oireachtas to the Financial
Services Ombudsman Council shall, on and after that day, be construed as references
to the Council.
(4)
A reference in any Act of the Oireachtas passed before the establishment day or in
any instrument made before that day under an Act of the Oireachtas to the Financial
Services Ombudsman or the Pensions Ombudsman shall, on and after that day, be
construed as a reference to the Ombudsman.
(5)
This Head shall come into operation on the establishment day.
40
Head 28
Head Title: Provisions consequent upon transfer of functions, assets and liabilities to
Office
Text for Bill
(1)
Anything commenced and not completed before the establishment day by or under the
authority of a dissolved body may be carried on or completed on or after the
establishment day by the Office.
(2)
Every instrument made under an enactment and every document (including any
certificate) granted or made by a dissolved body shall, if and in so far as it was
operative immediately before the establishment day, have effect on and after that day
as if it had been granted or made by the Office.
(3)
References to a dissolved body in the memorandum or articles of associations of any
company shall, on and after the establishment day, be construed as references to the
Office.
(4)
Any property rights or liabilities transferred by [Head and Head] that
immediately before the establishment day were standing in the name of a dissolved
body shall, on the request of the Office, be transferred into its name.
(5)
A certificate signed by the Minister that any property, right or liability has or, as the
case may be, has not vested in the Ombudsman under [Head and Head ] shall be
sufficient evidence, unless the contrary is shown, of the fact so certified for all purposes.
41
Head 29
Saving for certain acts
Text for Bill
Nothing in this Act affects the validity of any act done before the establishment day by or under
the authority of a dissolved body and every such act shall, if and in so far as it was operative
immediately before that day, have effect on or after that day as if it had been done by or on
behalf of the Office.
42
PART 4
ACCOUNTS AND REPORTS
Head No. 30
Head Title: Ombudsman to arrange for preparation of annual estimate of income and
expenditure
Text for Bill
(1)
The Ombudsman shall, not later than 3 months before the end of the financial year, or
within such extended period as the Council may allow, arrange for—
(a)
(b)
(2)
the preparation of a statement setting out estimates of the income and
expenditure relating to the Office for that coming year, and
the statement is to be submitted to the Council for approval.
The statement must—
(a)
specify the amounts expected to be collected and recovered during the financial
year concerned from the imposition of the financial services industry levy under
Head 11,
(b)
set out the proposed levy on industry for collection, to be agreed by the Minister,
(c)
set out the proposed Exchequer contribution to the operation of the Office as
may be sanctioned by the Minister and paid out of moneys provided by the
Oireachtas, and
(d)
any other sources from which funds are expected to be obtained during that year
to finance the Office’s activities and the amounts expected to be raised from
those sources.
(3)
Before submitting the statement to the Council for approval, the Ombudsman shall
provide it with particulars of the estimates referred to in subhead (2). As soon as
practicable after being provided with those particulars, the Council shall give the
Ombudsman its views on those estimates.
(4)
The Ombudsman shall keep in such form as may be approved in consultation with the
Minister all proper and usual accounts of all moneys received or expended by the
Office, including an income and expenditure account and balance sheet and, in
particular, shall keep all such special accounts as the Minister may from time to time
direct.
43
Head No. 31
Head Title: Ombudsman to ensure proper accounts are kept in respect of the Office
Text for Bill
(1)
The Ombudsman shall ensure that accounting records are kept that properly record
and explain the financial transactions of or relating to the Office.
(2)
The Ombudsman shall ensure that the accounting records relating to the Office are
kept for 6 years after the transactions to which they relate are completed. The
Ombudsman may, at the end of that period direct that those records be retained or
arrange for them to be disposed of in such manner as that Ombudsman considers
appropriate. This subhead has effect despite any other enactment to the contrary.
(3)
The Ombudsman is required to make the accounting records available at all
reasonable times for inspection by the Minister or any member of the Council who
requests to see them.
44
Head No. 32
Head Title: Ombudsman to arrange for the preparation of annual statement of
accounts and an annual report of activities
Text for Bill
(1)
Within 4 months after the end of each financial year, the Ombudsman shall arrange for
the preparation and transmission to the Comptroller and Auditor General of a statement
of accounts for the year in a form approved by the Council acting in consultation with
the Minister.
(2)
The form of statement approved under subhead (1) shall remain in force until
superseded by another form of statement so approved.
(3)
The Ombudsman shall, not later than 6 months after the end of a financial year—
(a) prepare an annual report specifying the activities of the office during that year, and
(b) submit the report to the Council.
(4)
An annual report must be in such form and deal with such matters as prescribed by this
Act and must include or be accompanied by the audited statement of accounts prepared
for the financial year concerned, pursuant to Head 32(2).
(5)
As soon as practicable after receiving an annual report, the Council shall deliver the
report to the Minister for Finance, and Minister for Social Protection
(6)
As soon as practicable after receiving an annual report, the Minister shall arrange for a
copy of the report to be laid before both Houses of the Oireachtas.
(7)
On becoming aware that subhead (6) has been complied with, the Ombudsman shall
arrange for the publication of the annual report.
45
Head No. 33
Head Title: Audit by the Comptroller and Auditor General
Text for Bill
(1)
Pursuant to [Head 32(1)], the Comptroller and Auditor General shall audit and report
on the statement of accounts and, as soon as practicable after completing the report,
give the report and the statement to the Ombudsman and to the Council.
(2)
A copy of the Comptroller and Auditor General’s report on the accounts shall be
presented to the Minister as soon as may be possible after the completion of the said
audit. The Minister shall lay the audited statement of accounts prepared for the financial
year before each House of the Oireachtas, when laying the annual reports as pursuant
to Head 32(5).
(3)
The Ombudsman shall, whenever he is required to do so by a Committee of Dáil
Éireann established under the Standing Orders of Dáil Éireann to examine and report
to Dáil Éireann on the appropriation accounts and reports of the Comptroller and
Auditor General, give evidence to that Committee on the following:
(a)
the regularity and propriety of the transactions recorded or required to be
recorded in any book or other record of account subject to audit by the
Comptroller and Auditor General that the Ombudsman is required to prepare
under this Act,
(b)
the economy and efficiency of the Ombudsman in the use of resources
(c)
the systems, procedures and practices employed by the Ombudsman for the
purpose of evaluating the effectiveness of operations of the Office, and
(d)
any matter affecting the Ombudsman referred to in a special report of the
Comptroller and Auditor General under section 11(2) of the Comptroller and
Auditor General (Amendment) Act 1993 or in any other report of the
Comptroller and Auditor General (in so far as it relates to a matter specified in
paragraph (a), (b) or (c)) that is laid before Dáil Éireann.
46
Head No. 34
Head Title: Ombudsman to publish certain other reports
Text for Bill
(1)
Within 3 months after the end of each financial year, the Ombudsman shall publish a
report containing
(a)
a summary of all complaints made to the Ombudsman during the preceding
financial year,
(b)
a review of trends and patterns in the making of complaints to the Ombudsman,
(c)
the breakdown of the manner in which all complaints submitted were dealt with,
(d)
the outcome of all investigations concluded or terminated, including details on
those complaints that were settled.
(2)
The Ombudsman may publish reports on other matters if that Ombudsman thinks it
would be in the public interest to do so.
(3)
If the thinks that it would be in the public interest to do so, a report under subhead (1)
may include in respect of every regulated financial service provider falling within
subhead (4) the information specified in subhead (4).
(4)
A regulated financial service provider falls within this subhead if, in the preceding
financial year, at least 3 complaints relating to the regulated financial service provider
which have been made to the Ombudsman have been found by that Ombudsman to be
substantiated or partly substantiated.
(5)
The information referred to in subhead (4) is—
(a) the name of the regulated financial service provider, including any trading name (if
different),
(b) where applicable, the identity of any group of which the regulated financial service
provider is a member, and
(c) the number of complaints found to be substantiated or partly substantiated in respect
of the regulated financial service provider in the preceding financial year.
(6)
For the purposes of the law of defamation the publication of the information referred to
in subhead (3) in a report under subhead (1) shall be absolutely privileged.
(7)
A report under subhead (1) shall not divulge the identity of any complainant nor shall
anything be published in the report which may lead to the identification of any
complainant unless the complainant consents in writing.
(8)
For the purposes of this Head if the regulated financial service provider or pension
provider has appealed against the Ombudsman’s finding that a complaint has been
found to be substantiated or partly substantiated the complaint is to be taken to have
been so found only when—
47
(a) the finding is affirmed (with or without modification) on appeal, or
(b) the appeal is withdrawn, struck out by the High Court or abandoned.
(9)
For the purposes of subhead (5)(b) a person is a member of a group if it is an
undertaking dealt with in group accounts (within the meaning of section 150 (1) of the
Companies Act 1963).
(10)
The Ombudsman may, from time to time, prepare and submit to the Minister such other
reports in relation to their activities as the Ombudsman considers appropriate.
48
Head No. 35
Head Title: Ombudsman to prepare strategic plan
Text for Bill
(1)
The Ombudsman shall prepare a biennial strategic plan and submit the plan to the
Council for its approval
(2)
A strategic plan must specify—
(a)
the objectives of the activities of the Office for the period concerned,
(b)
the nature and scope of the activities to be undertaken, and
(c)
the strategies and policies for achieving those objectives, and
(d)
targets and criteria for assessing the performance of the Office, and
(e)
the uses for which it is proposed to apply the Office’s resources.
(3)
If the Council has in writing notified the Ombudsman of any requirements with respect
to the form in which the strategic plan is to be prepared, the plan must comply with
those requirements.
(4)
As soon as practicable after approving a strategic plan, the Council shall deliver the
plan to the Minister.
(5)
As soon as practicable after receiving the Ombudsman’s strategic plan, the Minister
shall arrange for a copy of the plan to be laid before both Houses of the Oireachtas.
(6)
On becoming aware that subhead (5) has been complied with, the Ombudsman shall—
(a)
arrange for the publication of the strategic plan, and
(b)
take all reasonably practical steps to implement it.
49
PART 5
COMPLAINTS PROCEDURE
Head No. 36
Head Title: Complaints to the Ombudsman
Text for Bill
(1)
A complainant may make the following complaints or refer the following disputes to
the Ombudsman concerning:
(a)
(b)
(c)
(d)
(e)
(2)
the conduct of a regulated financial service provider involving the provision of
a financial service by the financial service provider;
the conduct of a regulated financial service provider involving an offer by the
financial service provider to provide such a service;
the conduct of a regulated financial service provider involving a failure by the
financial service provider to provide a particular financial service that has been
requested;
a complaint made to him by or on behalf of an actual or potential beneficiary of
an occupational pension scheme, trust RAC or PRSA, who alleges that he has
sustained financial loss occasioned by an act of maladministration done by or
on behalf of a person responsible for the management of that scheme, trust RAC
or, as appropriate, PRSA; and
any dispute of fact or law that arises in relation to an act done by or on behalf
of a person responsible for the management of the scheme, trust RAC or, as
appropriate, PRSA, and that is referred to him by or on behalf of the actual or
potential beneficiary.
A complaint or reference under this Head shall be made to the Ombudsman within
whichever of the following periods is the last to expire:
(a) 6 years from the date of the act or conduct giving rise to the complaint or
reference, or
(b) 3 years from the earlier of the following two dates, namely the date on which
the person making the complaint first became aware of the said act or conduct
and the date on which that person ought to have become aware of that act or
conduct, but only where the complaint is against pension providers or financial
services providers of long-term financial products.
(3)
A complainant may not be make a complaint or refer a dispute to the Ombudsman
where the conduct complained of:
a) is or has been the subject of legal proceedings before a court or tribunal,
b) occurred outside the time limits outlined in subhead (2),
c) relates to a matter that is within the jurisdiction of the Workplace Relations
Commission or Pension Authority, or an alternative suitable forum or
tribunal, or
50
d) is of a class not prescribed by regulations made by the Minister,
e) the complaint has been previously made to the Ombudsman in respect of
the same matter, or
f) the complainant has previously communicated its substance to the regulated
financial service provider or pension provider concerned and has not given
that financial service provider or pension provider a reasonable opportunity
to deal with it.
(4)
A complainant is entitled to make a complaint under subhead (1) even if the conduct
complained of occurred before the commencement of this Head provided the conduct
occurred within the time limits in subhead (2).
(5)
For the purpose of subhead (2), conduct that is of a continuing nature is taken to have
occurred at the time when it stopped and conduct that consists of a series of acts or
omissions is taken to have occurred when the last of those acts or omissions occurred.
(6)
A complaint must be in writing or any format as the Ombudsman considers appropriate
in the circumstances. The Ombudsman must inform the public through its website and
other communications as to the format of complaints that are acceptable.
(7)
As soon as practicable after receiving a complaint or dispute about the conduct of a
regulated financial service provider or pension provider, the Ombudsman shall provide
the financial service provider or pension provider with details of the complaint or
dispute.
(8)
The Ombudsman may enter into an arrangement with a person under which that person
will receive complaints or disputes on behalf of that Ombudsman.
(9)
A complaint or dispute received by a person under such an arrangement is, for the
purposes of this Part, taken to have been received by the Ombudsman.
(10)
If the Bank or the Pensions Authority receive a complaint that appears to be within the
jurisdiction of the Ombudsman pursuant to Head 39, it shall, without delay, refer the
complaint to that Ombudsman for investigation. A complaint referred under this
subhead is, for the purposes of this Part, taken to have been made under subhead (1)
and (2) by the complainant concerned.
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Head No. 37
Head Title: Death or disability of complainant
Text for Bill
(1)
Where a complainant dies, or is a minor or is otherwise unable to act for himself, then
(a)
any complaint or dispute which a complainant might otherwise have
made or referred under this Part may be made or referred by the appropriate
person, and
(b)
anything in the process of being done by or in relation to a complainant under
or by virtue of this Part may be continued by or in relation to the appropriate
person,
and any reference in this Part, except this Head, to a complainant shall be construed as
including a reference to the appropriate person.
(2)
For the purposes of subhead (1) ‘the appropriate person’ means –
(a)
where the complainant has died, his personal representative; or
(b)
in any other case, a member of his family, or some other person who is
considered by the Ombudsman to be a suitable person to represent him.
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Head No. 38
Head Title: Investigation by the Ombudsman
Text for Bill
(1)
The Ombudsman may conduct an investigation into a complaint or dispute referred to
him.
(2)
The Ombudsman shall inform the relevant parties to the complaint of the type of
investigation to be concluded, and any subsequent change in the type of investigation
thereafter.
(3)
In conducting an investigation, the Ombudsman may require a regulated financial
service provider or pension provider to:
(a)
provide information either orally or in writing,
(b)
produce any document or copy thereof,
(c)
attend before him for that purpose and the person shall comply with such a
requirement,
(d)
attend before that Ombudsman, either voluntarily or by way of summons, and
be examined on oath any such officer, member, agent or employee in relation
to any matter that appears to that Ombudsman to be relevant to the
investigation or adjudication.
(4)
The Ombudsman may make a requirement under this Head either orally or in writing
but must specify or describe the information, document or thing required, and must fix
a time and specify a place for compliance.
(5)
The Ombudsman may exercise the powers conferred by subhead (2) in respect of any
regulated financial service provider or pension provider, or an associated entity of the
financial service provider or pension provider, or any other person, that, in the opinion
of the Ombudsman, is in possession of information, or has a document or thing in his
power or control that is relevant to the investigation.
(6)
When investigating a complaint about the conduct of a regulated financial service
provider or pension provider, the Ombudsman may, at any reasonable time (a) enter and inspect any business premises occupied or used by the financial service
provider or pension provider, or by any other body or person who appears to that
Ombudsman to be associated with that provider, and
(b) inspect any document or thing in or on the premises.
(7)
If a document is kept in a non-legible form, the Ombudsman may request the person
apparently in charge of the document to reproduce it in a legible form or to give to that
Ombudsman such information as that Ombudsman reasonably requires in relation to
the document.
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(8)
The Ombudsman shall, for the purposes of an investigation by him under this Part, have
all the powers, rights and privileges vested in the High Court or a judge thereof on the
hearing of an action in respect of the examination of witnesses (including the
administration of oaths and affirmations and the examination of (witnesses abroad).
(9)
Subject to the provisions of this Part, a person to whom a requirement is addressed
under this Head shall be entitled to the same immunities and privileges as if he were a
witness before the High Court.
(10)
A statement or admission made by a person in an investigation under this Part by the
Ombudsman shall not be admissible as evidence against that person in any criminal
proceedings.
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Head No. 39
Head title: Jurisdiction of Ombudsman
Text for Bill
(1)
Notwithstanding Head 36(3)(f), the Ombudsman may accept a complaint against a
regulated financial service provider or pension provider who has begun legal
proceedings in relation to a matter to which the complaint relates, but only if that
Ombudsman reasonably suspects that the regulated financial service provider or
pension provider has begun those proceedings in order to prevent the making of the
complaint, or to frustrate or delay its investigation.
(2)
The Ombudsman shall not investigate or determine a complaint or dispute where:
(a)
the internal dispute resolution procedures required in accordance with
Head 41 have not been complied with,
(b)
there are or has been proceedings before any court in respect of the matter
which is the subject of the investigation,
(c)
the complaint or dispute relates to a matter that is within the jurisdiction of the
Workplace Relations Commission or Pension Authority or an alternative
suitable forum or tribunal, or
(d)
the complaint or dispute, or any matter arising in connection with the complaint
or dispute, is of a description that is excluded from the jurisdiction of the
Ombudsman by regulations made by the Minister under Head 4.
(3)
The Ombudsman has sole responsibility for deciding whether or not a complaint is
within the Ombudsman’s jurisdiction.
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Head 40
Head title: Staying of Court proceedings
Text for Bill
Where
(a)
(b)
a complaint has been made or a dispute referred to the Ombudsman; and
any party to the complaint or reference subsequently commences proceedings
in any court against any other party to the complaint or reference in respect of
any of the matters which are the subject of the complaint or reference,
then, any party to the proceedings may at any time after an appearance has been entered, and
before delivering any pleadings or taking any other steps in the proceedings, apply to the court
to stay the proceedings and the court, if it is satisfied that –
(i)
there is no sufficient reason why the matter in respect of which the said
proceedings have been commenced should not be investigated by the
Ombudsman; and
(ii)
the applicant was at the time when the proceedings were commenced and still
remains ready and willing to do all things necessary for the proper conduct of
the investigation,
shall make an order staying the proceedings.
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Head 41
Head Title: Internal Dispute Resolution procedures
Text for Bill
(1)
The Ombudsman shall not investigate or determine a complaint or dispute unless the
complainant has previously engaged with the regulated financial service or pension
provider concerned and has given that financial service or pension provider opportunity
to deal with it though the providers’ internal dispute resolution procedures.
(2)
The applicable limitation period under Head 36(2) is suspended for the period
during which a complaint is being considered under the appropriate internal dispute
resolution procedure.
(3)
Notwithstanding subhead (1) the Ombudsman may accept a complaint against a
regulated financial services provider or pension provider before the internal dispute
resolution process is completed where:
(a) the financial services provider or pension provider has failed to complete the
internal dispute resolution process referred to in subheads (1) and (3) so as to
allow the complainant to make a complaint to his Office within the relevant time
limits, or
(b) the Ombudsman determines a complaint is of such importance as to warrant
waiving the internal dispute resolution procedure.
(4)
The Ombudsman shall publicise on its website and make information available to
regulated financial services and pension providers in respect of his discretion to waive
the internal dispute resolution procedures under subhead (3).
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Head 42
Head Title: Declining to Investigate
Text for Bill
(1)
The Ombudsman may decline to investigate a complaint, or to discontinue to an
investigation of a complaint, where –
(a)
(b)
(c)
(d)
the complaint is frivolous or vexatious or was not made in good faith,
the subject-matter of the complaint is trivial,
the conduct complained of occurred at too remote a time to justify investigation,
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, in the opinion of the Ombudsman, of
such a degree of complexity that the courts are a more appropriate forum.
(2)
The Ombudsman may make preliminary inquiries for the purpose of deciding whether
a complaint should be investigated under this Part and may request the complainant to
provide further written particulars of the complaint within a period specified by that
Ombudsman.
(3)
The Ombudsman may decide not to continue to investigate a complaint if the
complainant fails within a reasonable period to comply with a request for further written
particulars.
(4)
As soon as practicable after deciding not to investigate a complaint, or to discontinue
an investigation of a complaint, the Ombudsman shall inform the complainant in
writing of the decision and the reasons for it.
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Head 43
Head Title: Conduct of Investigation
Text for Bill
(1)
The conduct of investigations under this Part shall be such as the Ombudsman considers
appropriate in all the circumstances of the case and in a manner that is appropriate and
proportionate to the nature of the complaint.
(2)
Where the Ombudsman proposes to conduct an investigation into a complaint made or
dispute referred under this Part, he shall provide the parties, and any other person, in
the opinion of the Ombudsman, who might be adversely affected by any eventual
decision he makes in relation to the complaint or dispute, an opportunity to
(a)
make submissions with respect to the conduct complained of and
(b)
to comment on any allegations contained in the complaint or reference.
(3)
The Ombudsman shall ensure investigations are conducted otherwise than in public,
without prejudice to the form of investigation.
(4)
The Ombudsman may, in the course of investigating a complaint, periodically report to
the complainant on the progress of the investigation and, in so doing, may make such
comments to the complainant on the investigation and its consequences and
implications as that Ombudsman thinks fit.
(5)
The Ombudsman may, in the course of investigating a complaint, issue a preliminary
decision to the relevant parties to the complaint, indicating the potential decision to be
taken by the Ombudsman, any evidence and or facts considered to arrive
at
that
preliminary decision.
(6)
If the Ombudsman considers, during the investigation or following the completion of
an investigation, that there is a persistent pattern of complaints that would be of
concern to the Bank or the Pensions Authority, the Ombudsman shall inform the Bank
or the Pensions Authority.
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Head 44
Head Title: Mediation
Text for Bill
(1)
The Ombudsman may, in circumstances where he deems it appropriate, try to resolve
a complaint by mediation.
(2)
The Ombudsman shall engage with the complainants and providers to ensure that the
objective of mediation is understood, and to promote engagement in the mediation
process.
(3)
Participation in the mediation by the parties to a complaint is voluntary, and a party
may withdraw at any time.
(4)
The Ombudsman may abandon an attempt to resolve a complaint by mediation on
forming the view that the attempt is not likely to succeed.
(5)
Evidence of anything said or admitted during a mediation, or an attempted mediation,
of a complaint, and any document prepared for the purposes of the mediation, are not
admissible (a)
in any subsequent investigation, under this Part, of the complaint (unless the
person who made the admission, or to whom the document relates, consents to
its admission), or
(b)
in any proceedings before a court or a tribunal.
(6)
If an attempt to resolve a complaint by mediation is unsuccessful, the Ombudsman shall
(a) deal with the complaint in accordance with Head 43, and
(b) notify the parties accordingly.
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Head 45
Head Title: Obstruction of the Work of the Ombudsman
Text for Bill
(1)
A person shall not by act or omission obstruct or hinder the Ombudsman in the
performance of his functions or do any other thing which would, if the Ombudsman
were a court having power to commit for contempt of court, be contempt of such court.
(2)
A person who (a)
obstructs the Ombudsman in the exercise of power conferred by this Act
(b)
without reasonable excuse, fails to comply with a requirement or request made
by that Ombudsman under this Act
(c)
in purported compliance with such a requirement or request, gives information
that the person knows to be false or misleading, or
(d)
refuses to comply with a summons to attend before, or to be examined on oath
by, that Ombudsman,
commits an offence and is liable on summary conviction to a Class A fine or to
imprisonment for a term not exceeding 3 months, or both.
(3)
The Ombudsman may apply to the Circuit Court for a compliance order against a person
if it appears to that Ombudsman that the person –
(a)
has failed to comply with a requirement made to the person by that Ombudsman
under Head 38,
(b)
has failed to comply with a summons under Head 38(3)(d) to appear before that
Ombudsman for examination, or
(c)
having complied with such a summons, has refused to be examined, or
(d)
has otherwise obstructed that Ombudsman in the exercise of a power conferred
by this Part.
(4)
If, on hearing an application seeking a compliance order against a person, the Circuit
Court is satisfied that the person has failed or refused to do the act in question, the
Circuit Court may make an order requiring the person to do that act.
(5)
The Circuit Court may not hear an application for a compliance order unless –
(a)
the person against whom the order is sought appears at the hearing, or
(b)
the Court is satisfied that that person has been served with a copy of the
application.
(6)
On the hearing of an application for a compliance order against a person, the Circuit
Court shall set aside a requirement made to the person –
(a)
to provide information,
(b)
to produce a document or other thing, or
(c)
to provide a copy of a document,
if it is of the opinion that the person is entitled to claim legal professional privilege with
respect to the provision of the information, the production of the document or thing or
the provision of the copy.
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Head 46
Head Title: Adjudication of complaints and redress
Text for Bill
For complaints relating to regulated Financial Service Providers
(1)
In adjudicating a complaint relating to regulated financial services providers that has
not been settled or withdrawn, the Ombudsman shall make a decision in writing that
the complaint –
(a)
is substantiated, or
(b)
is not substantiated, or
(c)
is partly substantiated in one or more specified respects but not in others.
(2)
A complaint may be found to be substantiated or partly substantiated only on one or
more of the following rounds:
(a)
the conduct complained of was contrary to law;
(b)
the conduct complained of was unreasonable, unjust, oppressive or improperly
discriminatory in its application to the complainant;
(c)
although the conduct complained of was in accordance with a law or an
established practice or regulatory standard, the law, practice or standard is, or
may be, unreasonable, unjust, oppressive or improperly discriminatory in its
application to the complainant;
(d)
the conduct complained of was based wholly or partly on an improper motive,
an irrelevant ground or an irrelevant consideration;
(e)
the conduct complained of was based wholly or partly on a mistake of law or
fact;
(f)
an explanation for the conduct complained of was not given when it should have
been given;
(g)
the conduct complained of was otherwise improper.
(3)
The Ombudsman shall include in a decision, –
(a)
the finding in accordance with subhead (1),
(b)
the basis for the finding pursuant to subhead (2) and
(c)
any direction given under subhead (4) as a result of the finding.
(4)
If a complaint is found to be wholly or partly substantiated, the Ombudsman may direct
the regulated financial service provider to do one or more of the following:
(a)
review, rectify, mitigate or change the conduct complained of or its
consequences;
(b)
provide reasons or explanations for that conduct;
(c)
change a practice relating to that conduct;
(d)
pay an amount of compensation to the complainant for any loss, expense or
inconvenience sustained by the complainant as a result of the conduct
complained of;
(e)
take any other lawful action.
(5)
Where the Ombudsman makes a direction in accordance with subhead (4) concerning
a pension provider, such a direction shall not require either –
(a) an amendment of the rules of a scheme or the conditions of a PRSA contract, or
62
(b) the substitution of the decision of the Ombudsman for that of the trustees of a
scheme in relation to the exercise by the trustees of a discretionary power under the
rules of the scheme.
(6)
(7)
The Ombudsman may not direct the payment of an amount of compensation exceeding
the following:
(a)
€26,000 per annum where the subject of a complaint is an annuity, or
(b)
€250,000 in respect of all other complaints.
unless greater compensatory amounts are prescribed by regulations made by the
Minister in accordance with Head 4.
(8)
A direction requiring a regulated financial service provider to pay an amount of
compensation may provide for interest to be paid at the rate referred to in section 22 of
the Courts Act 1981, if the amount is not paid by a date specified in the direction.
(9)
The Ombudsman shall give a copy of a finding under this section to –
(a) the complainant, and
(b) the regulated financial service provider or pension provider to which the complaint
relates.
(10)
If a finding under this section contains a direction under subhead (4), the regulated
financial service provider concerned –
(a) shall comply with the direction within such period as is specified in the direction,
or within such extended period as the Ombudsman allows, and
(b) shall, within 14 days after the end of that period or extended period, notify in writing
the Ombudsman of action taken or proposed to be taken in consequence of the
direction.
For complaints relating to Pensions Providers
(11) On completing an investigation of a complaint relating to pensions providers that has
not been settled or withdrawn, the Ombudsman shall make a decision in writing in relation
to the complaint or dispute, and may in the determination give to the parties concerned such
directions as the Ombudsman considers necessary or expedient for the satisfaction of the
complaint or the resolution of the dispute.
(12)
A direction under subsection (1) shall not require either –
(a) an amendment of the rules of a scheme or the conditions of a PRSA contract, or
(b) the substitution of the decision of the Ombudsman for that of the trustees of a
scheme in relation to the exercise by the trustees of a discretionary power under the
rules of the scheme.
(13) Subject to subsection (4), the Ombudsman may under subsection (1) order such redress,
including financial redress, for the party concerned as he considers appropriate, having
regard to all the circumstances and to the provisions of this Part.
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(14) Any financial redress under subsection (3) shall be of such amount as the Ombudsman
deems just and equitable having regard to all the circumstances but shall not exceed any
actual loss of benefit under the scheme or PRSA.
(15) The determination of the Ombudsman shall be in writing and shall be communicated to
the parties by the Ombudsman. The decision shall include –
a) The finding
b) The basis for the finding
c) any direction given under subsection (2) as a result of the finding.
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Head 47
Head Title: Decisions of the Ombudsman
Text for Bill
(1)
Subject to the outcome of any appeal against a decision of the Ombudsman in respect
of a complaint, the decision is binding on any party to the complaint.
(2)
The Ombudsman shall publish decisions made by him as appropriate and in such a
manner that ensures a party to a complaint will not be identifiable in accordance with
data protection legislation.
(3)
The Ombudsman may, if he considers it appropriate to do so in any particular case,
publish, in such form and manner as he thinks fit, a report in relation to any investigation
under this Part and the result of that investigation.
(4)
For the purpose of the law of defamation, the publication by the Ombudsman of any
report under subhead (3) shall be absolutely privileged, and immune from legal
proceedings.
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Head 48
Head Title: Appeals process
Text for Bill
(1)
A party to an investigation before the Ombudsman under this Part may appeal to the
High Court against the finding.
(2)
An appeal under this Head must be made (a)
within such period and in such manner as is prescribed by rules of court of the
High Court, or
(b)
within such further period as that Court may allow.
(3)
The orders that may be made by the High Court on the hearing of such an appeal include
(but are not limited to) the following:
(a)
an order affirming the decision of the Ombudsman, subject to modifications as
it considers appropriate,
(b)
an order setting aside that decision or any direction included in it,
(c)
an order remitting that decision or any such direction to that Ombudsman for
review with its opinion on the matter,
(d)
may make such other order in relation to the matter as it thinks just, and may
make such order as to costs as it thinks fit, and
(e)
may amend the decision.
(4)
The Financial Services Ombudsman can be made a party to an appeal under this Head.
(5)
If the High Court makes an order remitting to the Ombudsman a finding or direction of
that Ombudsman for review, that Ombudsman is required to review the finding or
direction in accordance with the directions of the Court.
(6)
The determination of the High Court on the hearing of such an appeal is final, except
that a party to the appeal may apply to the Court of Appeal or Supreme Court to review
the determination on a question of law (but only with the leave of either of those
Courts).
(7)
A decision of the Ombudsman does not take effect, and may not be implemented, while
an appeal under subhead (1) or an application under subhead (6) is pending in relation
to the finding.
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Head 49
Head Title: Enforcement of Ombudsman decisions
Text for Bill
(1)
In this Head:
‘direction’ means a direction included in a decision made by the Ombudsman under
Head 47
‘enforcement order’ means an order of the Circuit Court to enforce a direction.
(2)
(a)
If a party or regulated financial service provider, fails or refuses to comply with
a decision under this Part a decision of the Ombudsman, within the period, or
by the date, specified in the direction, the Circuit Court shall, on application to
it on that behalf by—
i. the Ombudsman, as he sees fit,
ii. the other party concerned, that is, the complainant in whose favour the
finding was made or
make an order directing that party to carry out the determination in accordance
with its terms.
(b)
In paragraph (a), the reference to a determination is a reference to such a
determination in relation to which, at the expiration of the time for bringing an
appeal against it, no such appeal has been brought or, if such an appeal has been
brought, it has been abandoned or determined by the Court.
(3)
The Circuit Court may not hear an application for an enforcement order unless –
(a)
the regulated financial service provider or pension provider concerned appears
at the hearing as respondent to the application, or
(b)
if that regulated financial service provider or pension provider does not appear
at the hearing, the Court is satisfied that a copy of the application has been
served on that regulated financial service provider or pension provider.
(4)
The Circuit Court may not hear an application for an enforcement order in respect of a
direction if the regulated financial service provider or pension provider concerned has
appealed against the finding in which the direction is included and either –
(a)
the finding or direction has not been affirmed (with or without modification), or
(b)
that financial service provider or pension provider has not withdrawn the appeal.
(5)
On hearing an application for an order to enforce the direction, the Circuit Court shall,
if satisfied that the direction was one that the Ombudsman was empowered to make,
make an order requiring the financial service provider or pension provider concerned
to comply with the direction within a period, or by a date, specified in the order.
(6)
Notwithstanding subhead (2), where, in proceedings under that subhead, the Circuit
Court is satisfied that, owing to lapse of time, it would not be possible to comply with
an order under that subhead, that Court shall make an order providing for such redress
67
as it considers appropriate having regard to the provisions of this Part and all the
circumstances.
(7)
In an order under this Head providing for the payment of financial redress by any
person, the Circuit Court may, if in all the circumstances it considers it appropriate to
do so, direct the regulated financial service provider or pension provider concerned to
pay to the actual or potential beneficiary concerned interest on the payment at the rate
referred to in section 22 of the Courts Act, 1981, in respect of the whole or any part of
the period beginning 4 weeks after the date on which the determination concerned is
communicated to the parties and ending on the date of the order.
(8)
An application under this Head to the Circuit Court shall be made to the judge of the
Circuit Court for the circuit in which the relevant member or, as appropriate, contributor
ordinarily resides.
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Head 50
Head Title: Ombudsman may refer questions of law to High Court
Text for Bill
(1)
When dealing with a complaint, the Ombudsman may, on that Ombudsman’s own
initiative or at the request of the complainant or the regulated financial service provider
or pension provider concerned, refer for the opinion of the High Court a question of
law arising in relation to the investigation or adjudication of the complaint.
(2)
The High Court has jurisdiction to hear and determine any question of law referred to
it under this Head.
(3)
If a question of law has been referred to the High Court under this Head, the
Ombudsman may not –
(a)
make a finding to which the question is relevant while the reference is pending,
or
(b)
proceed in a manner, or make a decision, that is inconsistent with the opinion
of the High Court on the question.
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PART 6
MISCELLANEOUS PROVISIONS
Head 51
Head title: Power of the Court to grant injunctions in certain cases
Text for Bill
(1)
The High Court may, on an application made by the Ombudsman, grant an injunction
restraining conduct in which a financial service provider or pension provider is
engaging or in which a financial service provider or pension provider appears likely to
engage, if the conduct is conduct that is being investigated or is proposed to be
investigated.
(2)
The High Court may not grant an application under subhead (1) unless of the
opinion that the conduct sought to be restrained is likely to prejudice or negate the
effect or implementation of a decision that the Ombudsman might make if that
Ombudsman were to find the complaint to which the conduct relates is wholly or
partly substantiated.
(3)
The High Court may not require the Ombudsman to give any undertaking as to
damages as a condition for the granting of an injunction in consequence of an
application referred to in subhead (1).
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Head 52
Head Title: Office and the Council to co-operate with Regulatory Authorities and others
Text for Bill
(1)
The Office shall co-operate with the Bank and the Pensions Authority with a view to
ensuring that the provisions of this Act operate in a way that contributes to promoting
the best interests of consumers of financial or pension services and to the efficient and
effective handling of complaints.
(2)
The Ombudsman may exchange whenever asked to do so by the Bank, provide the
Bank with records or copies of records, or information, dealing with specified matters,
or matters of a specified kind, relevant to the performance of the Bank’s functions.
(3)
As soon as practicable after the commencement of this Head, the Ombudsman, the
Pensions Authority and the Bank shall enter into a memorandum of understanding
setting out the terms under which they agree to give effect to this Head
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Head 53
Head Title: Reciprocal arrangements with other European Economic Area countries
Text for Bill
(1)
In this Head ‘complaint’ includes a complaint within the meaning of the EEA Memorandum of
Understanding;
‘EEA Memorandum of Understanding’ means the Memorandum of Understanding on
a Cross-border Out-of-court Complaints Network for Financial Services in the
European Economic Area or, if the memorandum is amended or is replaced by
another memorandum, means the memorandum as so amended or that other
memorandum.
(2)
The Ombudsman shall be read in place of the Financial Service Ombudsman, with the
approval of the Minister in respect of its subscription to the EEA Memorandum of
Understanding.
(3)
The Ombudsman may refer a complaint made to him to another EEA dispute
settlement body in accordance with the terms of the EEA Memorandum of
Understanding.
(4)
The Ombudsman may mediate, investigate and adjudicate on any complaint referred
to him by another EEA dispute settlement body in accordance with the terms of that
Memorandum.
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SCHEDULE
Part 1
Central Bank Act 1942………………………………Part VIIB
Pensions Act 1990……………………………………. Part XI
Part 2
Pensions Ombudsman Regulations, 2003 (SI No. 397 of 2003)
Pensions (Amendment) Act, 2002 (Section 5 (Except in So Far As That Section Is
Already in Operation) and Sections 8 and 58) (Commencement) Order, 2003 (SI No.
398 of 2003)
Social Welfare (Miscellaneous Provisions) Act, 2003 (Section 23) (Commencement)
Order, 2003 (SI No. 399 of 2003)
Central Bank Act 1942 (Financial Services Ombudsman Council) Regulations 2005
(SI No. 190 of 2005)
Central Bank Act 1942 (Financial Services Ombudsman) Regulations 2005 (SI No.
191 of 2005)
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations 2005 (SI No. 329 of 2005)
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations (No 2) 2005 (SI No. 330 of 2005)
73
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations (No. 3) 2005 (SI No. 828 of 2005)
Pensions Ombudsman Regulations 2006 (SI No. 302 of 2006)
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations 2006 (SI No. 556 of 2006)
Pensions Ombudsman Regulations 2007 (SI No. 183 of 2007)
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations 2007 (SI No. 726 of 2007)
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations 2008 (SI No. 576 of 2008)
Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees
Regulations 2009 (SI No. 500 of 2009)
Central Bank Act 1942 (Financial Services Ombudsman Council) (Amendment)
Regulations 2014 (SI No. 164 of 2014)
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