Financial Services and Pensions Ombudsman Act 2017

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Financial Services and Pensions Ombudsman Act 2017.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 1942” means the Central Bank Act 1942;

“Act of 1990” means the Pensions Act 1990;

“Act of 1995” means the Consumer Credit Act 1995;

“Act of 2004” means the Public Service Management (Recruitment and Appointments) Act 2004;

“Act of 2014” means the Companies Act 2014;

“actual or potential beneficiary”—

(a) in relation to a complaint concerning a pension provider, 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 legal personal representative of a deceased member or deceased contributor, a widow, widower or surviving spouse or civil partner of a deceased member or deceased contributor or any person with an entitlement under a scheme, and

(b) in relation to a complaint concerning a financial service provider, means a consumer, any surviving dependant of a consumer, a legal personal representative of a deceased consumer, a widow, widower or surviving spouse or civil partner of a deceased consumer or any person who is contractually entitled to benefit from a long-term financial service;

F1[“automatic enrolment retirement savings system” means the retirement savings system established under theAutomatic Enrolment Retirement Savings System Act 2024;]

“Bank” means the Central Bank of Ireland;

“complaint” means a complaint made in accordance with this Act in relation to the conduct of a financial service provider or a pension provider specified in section 44(1)(a) and (b) respectively;

“complainant” means a person who makes a complaint under section 44(1) that is—

(a) a consumer,

(b) an actual or potential beneficiary,

(c) a person acting on behalf of an actual or potential beneficiary, or

(d) a person of a class specified in regulations made by the Minister under section 4;

“consumer”, in relation to a financial service, means—

(a) (i) a natural person, not acting in the course of business,

(ii) a sole trader, partnership, trust club or charity (not being a body corporate), with an annual turnover in its previous financial year (within the meaning of section 288 of the Act of 2014) of €3 million or less, or

(iii) an incorporated body that—

(I) had an annual turnover in its previous financial year (within the meaning of section 288 of the Act of 2014) of €3 million or less, and

(II) is not a body corporate that is a member of a group of companies (within the meaning of section 8 of the Act of 2014) with a combined annual turnover (in the previous financial year (within the meaning of section 288 of the Act of 2014) of the group of companies), of greater than €3 million,

that—

(A) is a customer of a financial service provider,

(B) is a person or body to whom a financial service provider has offered to provide a financial service, or

(C) has sought the provision of a financial service,

F2[(b) a consumer who was, in relation to a credit agreement, a consumer-hire agreement or a hire-purchase agreement, a customer of the financial service provider in a case where a credit servicing firm undertakes credit servicing in respect of the agreement concerned,]

(c) an actual or potential beneficiary of a financial service, or

(d) an employee or a former employee entitled to benefit from an income continuance plan;

“consumer”, in relation to a pension product, means an actual or potential beneficiary of an occupational pensions scheme, a trust RAC or a PRSA who believes they have suffered financial loss because of maladministration of the scheme, trust or PRSA, as the case may be;

F3["consumer-hire agreement" has the meaning given to it in section 28 of the Central Bank Act 1997;]

“Council” has the meaning given to it by section 37;

“credit agreement” has the meaning given to it in section 28 of the Central Bank Act 1997;

F4[“Credit Reviewer“has the meaning given to it by the Guidelines issued undersection 210 (1)of theNational Asset Management Agency Act 2009(S.I. No. 127 of 2010);]

“credit servicing” has the meaning given to it in section 28 of the Central Bank Act 1997;

“credit servicing firm” has the meaning given to it in section 28 of the Central Bank Act 1997;

“custodian” means a financial institution appointed to hold securities or other assets of a scheme, whether in physical or electronic form;

“Deputy Financial Services Ombudsman” means a person appointed by the Financial Services Ombudsman Council under section 57BJ(1) of the Act of 1942;

“Deputy Ombudsman” has the meaning given to it by section 8(1)(b);

“dissolved bodies” means—

(a) the Financial Services Ombudsman’s Bureau,

(b) the Financial Services Ombudsman Council, and

(c) the office of the Pensions Ombudsman;

“establishment day” shall be construed in accordance with section 6;

“external member”, in relation to a scheme, means any person who, having been admitted to membership under the rules of the scheme, remains entitled to any benefit under the scheme in respect of a period of service whilst employed outside the State;

“financial services” includes financial products;

“Financial Services Ombudsman” means a person appointed by the Financial Services Ombudsman Council under section 57BJ(1) of the Act of 1942;

“Financial Services Ombudsman’s Bureau” means the bureau established by section 57BI of the Act of 1942;

“Financial Services Ombudsman Council” means the council established by section 57BC of the Act of 1942;

“financial service provider” means any of the following:

(a) a regulated financial service provider within the meaning of section 2(1) of the Act of 1942;

(b) a credit intermediary that is required to be authorised by the Competition and Consumer Protection Commission under Part XI of the Act of 1995;

(c) a pawnbroker that is required to be authorised by the Competition and Consumer Protection Commission under section 8 of the Pawnbrokers Act 1964;

(d) a creditor with respect to the performance of his or her obligations under the Act of 1995 and under—

(i) a contract for the provision of credit to a consumer, and

(ii) any contract of guarantee relating to the provision of that credit;

(e) an owner of goods that are subject to hire-purchase under a hire-purchase agreement with respect to the performance of his or her obligations under the Act of 1995 and under—

(i) a contract for the hire-purchase, and

(ii) any contract of guarantee relating to the hire-purchase agreement or any right to recover the goods from the hirer under the hire-purchase agreement;

(f) an owner of goods that are subject to a consumer-hire agreement with respect to the performance of his or her obligations under the Act of 1995 and under—

(i) a consumer-hire agreement, and

(ii) under any contract of guarantee relating to the consumer-hire agreement or any right to recover the goods from the hirer under the consumer-hire agreement;

(g) a mortgage lender within the meaning of section 2 of the Act of 1995;

F4[(ga) a person who, before the commencement of theConsumer Protection (Regulation of Credit Servicing Firms) Act 2015, engaged in any of the activities referred to in subparagraphs (i) to (iii) of paragraph (a) of the definition of "credit servicing" insection 28 (1)of theCentral Bank Act 1997and does not otherwise fall withinparagraph (gb);

(gb) a person who, before the commencement of theConsumer Protection (Regulation of Credit Servicing Firms) Act 2018, engaged in any of the activities referred to in subparagraphs (i) to (iii) of paragraph (a) of the definition of“credit servicing“insection 28 (1)of theCentral Bank Act 1997and does not otherwise fall withinparagraph (ga);]

(h) any other person of a class specified in regulations made by the Minister under section 4;

“financial services industry levy” has the meaning given to it by section 43;

F3["hire-purchase agreement" has the meaning given to it in section 28 of the Central Bank Act 1997;]

“income continuance plan” means an insurance contract taken out by an employer (whether or not in conjunction with employees) designed to pay an income to an employee on the occurrence of certain events specified in the contract that render the employee unable to continue to perform the duties under his or her contract of employment on a long-term basis;

“investment manager” means any person appointed to manage the funds of a scheme or to implement the statement of investment policies and principles of the trustees;

F5[“long-term financial service” means—

(a) subject toparagraph (b)andsubsection (3), a financial service the duration of which is a fixed term of 5 years and one month, or more, but, notwithstanding that the aggregate term of them may be 5 years and one month (or more), there does not fall within this paragraph a series of consecutive terms in respect of a financial service’s duration (provided no individual one of them is 5 years and one month, or more, in length), or

(b) a financial service that is—

(i) life assurance to which, by virtue of Regulation 4 of those Regulations, the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994) apply (not being life assurance falling within Class VII defined in the first Annex thereto), or

(ii) life assurance to which the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015) apply (not being life assurance falling within paragraph 7, 8 or 9 of Schedule 2 thereto),

regardless, in either case, of whether the term of such life assurance is fixed at a specified calendar period or not;]

“member” means—

(a) in relation to a scheme, subject to sections 62 and 154 of the Act of 1990, any person who, having been admitted to membership under the rules of the scheme, F1[other than the automatic enrolment retirement savings system,] remains entitled to any benefit under the scheme in respect of a period of service whilst employed within the F6[State,]

F1[(aa) in relation to the automatic enrolment retirement savings system, a participant within the meaning ofsection 2of the Automatic Enrolment Retirement Savings System Act 2024, and]

(b) in relation to a trust RAC, any person whose occupational activities entitle, or will entitle, the person to retirement benefits (within the meaning of Article 6 of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003^1) in accordance with the rules of the trust RAC;

“Minister” means the Minister for Finance;

“occupational pension scheme” means any scheme or arrangement other than an overseas pension scheme within the meaning of section 770(1) of the Taxes Consolidation Act 1997—

(a) which is comprised in one or more instruments or agreements,

(b) subject to section 154 of the Act of 1990, which provides or is capable of providing in relation to employees in any description of employment within the State, benefits, and

(c) which—

(i) has been approved of by the Revenue Commissioners for the purpose of Chapter 1 of Part 30 of the Taxes Consolidation Act 1997,

(ii) is a scheme or arrangement in respect of which an application for approval under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997 is being considered,

(iii) is a statutory scheme to which section 776 of the Taxes Consolidation Act 1997 applies,

(iv) is a scheme to which section 790B of the Taxes Consolidation Act 1997 applies,

(v) is a scheme, other than a scheme specified in subparagraph (i), (ii) or (iii), the benefits of which are paid in whole or in part out of moneys provided from the Central Fund or moneys provided by the Oireachtas, or

(vi) has been approved by the Revenue Commissioners for the purpose of one or more of the following:

(I) section 32 of the Finance Act 1921;

(II) section 34 of the Finance Act 1958; or

(III) section 222 or 229 of the Income Tax Act 1967;

“Office” has the meaning given to it by section 7(1);

“Ombudsman” has the meaning given to it by section 8(1)(a);

“paying agent” means a person appointed by the trustees of a scheme to administer the payment of benefits under that scheme to beneficiaries and to collect and account for any tax liability arising from such benefits;

F6[“pension provider“means—

(a) in relation to a scheme, other than the automatic enrolment retirement savings system, any of the following:

(i) any employer who adheres to the scheme;

(ii) any person or undertaking that provides services to the scheme as a trustee, administrator, registered administrator for the purposes of Part VIA of the Act of 1990, consultant or advisor, investment manager, custodian, paying agent, insurer or actuary;

(iii) any person to whom the implementation or interpretation of the rules of the scheme is entrusted;

(iv) any other person of a class specified in regulations made by the Minister undersection 4,

and

(b) in relation to the automatic enrolment retirement savings system, An tÚdarás Náisiúnta um Uathrollú Coigiltis Scoir;]

“Pensions Ombudsman” shall be construed in accordance with section 127 of the Act of 1990;

“PRSA” means a personal retirement savings account established by a contributor with a PRSA provider under the terms of a PRSA contract;

“scheme”, in relation to a pension, means an occupational pension scheme, a PRSA F6[, a trust RAC or the automatic enrolment retirement savings system];

“trust RAC” means a trust scheme within the meaning of section 784(4) of the Taxes Consolidation Act 1997 which has been approved by the Revenue Commissioners for the purposes of section 784(4) or 785(5) of that Act or the application for approval of which under either of those provisions is being considered, other than a trust scheme which, apart from temporary holdings in cash for liquidity purposes, invests only in life assurance policies.

(2) A word or expression that is used in this Act and is also used in the Act of 1942 or the Act of 1990 shall have, unless the context otherwise requires, the same meaning in this Act as it has in either of those Acts.

F7[(3) Notwithstanding the fact that the financial service does not fix its duration to be of a term such as is referred to inparagraph (a)of the definition of "long-term financial service" insubsection (1), a financial service shall be regarded as falling within that definition if it would be reasonable for a consumer to expect its duration to be of at least the length referred to in that paragraph and that reasonable expectation arises by reason of—

(a) the manner in which the financial service operates to provide a financial benefit to the consumer,

(b) the type of assets with which its operation is connected, or

(c) representations made by the financial service provider,

as distinct from where such an expectation arises in the case of—

(i) a current account with a financial institution, or

(ii) any other financial service of an indefinite duration that is widely available and does not possess specialised characteristics.]

F4[(4) For the purposes of the application of this Act to a complaint, a reference in this Act to a financial service provider or a pension provider, as the case may be, shall, unless the context otherwise requires, be construed as including a person who was a financial service provider or a pension provider, as the case may be, at the time of the conduct complained of.]

3. Expenses

3. (1) The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

(2) The expenses incurred by the Ombudsman in the performance of his or her functions under this Act—

(a) in so far as they relate to the investigation of complaints regarding financial service providers shall be paid out of moneys provided by the financial services industry levy, and

(b) in so far as they relate to the investigation of complaints regarding pension providers shall, to such extent as may be sanctioned by the Minister, be paid out of moneys provided by the Oireachtas.

F9[(3) The calculation of expenses to be charged to the levy, undersubsection (2)(a), and to the Oireachtas, undersubsection (2)(b), shall be based on the percentage division of the complaints received by the Ombudsman in the 3 immediately preceding financial years between—

(a) complaints relating to financial service providers, and

(b) complaints relating to pension providers.]

(4) If any issue arises as to whether any expenses fall within paragraph (a) or (b) of subsection (2), it shall be referred to the Minister whose decision on the matter shall be final.

4. Regulations

4. (1) The Minister may, whether on his or her own initiative or at the request of the Ombudsman, having consulted with the Council and the Ombudsman, for the purposes of providing ease of access for complainants to the Ombudsman, increasing efficiency in the operation of the office of the Ombudsman and allowing for appropriate redress and compensation to be provided by the Ombudsman to complainants, by regulations provide for any matter—

(a) referred to in this Act as prescribed or to be prescribed, or

(b) for the purposes of enabling any provision of this Act to have full effect.

(2) Without prejudice to the generality of subsection (1), regulations under that subsection may—

(a) prescribe a class or classes of persons who may make a complaint under section 44,

(b) prescribe the qualification requirements of a class under this subsection,

(c) specify a class or classes of persons for the purposes of—

(i) paragraph (a) of the definition of “financial service provider”, or

(ii) F10[subparagraph (a)(iv)] of the definition of “pension provider”,

(d) prescribe matters to be taken into account by the Ombudsman in the investigation or adjudication of a complaint,

(e) prescribe procedures to be followed by the Ombudsman in processing a complaint,

(f) specify circumstances in which the Ombudsman may dismiss a complaint,

(g) prescribe a class or classes of complaint that may not be made to the Ombudsman under section 44,

(h) specify a maximum amount of compensation that the Ombudsman may award to a complainant under section 60,

(i) prescribe the matters to be taken into account for the purpose of calculating turnover limits for complainants.