Financial Services and Pensions Ombudsman Act 2017

• (i) the Carer’s Leave Act 2001;

• (j) the Maternity Protection Acts 1994 and 2004;

• (k) the Adoptive Leave Acts 1995 and 2005;

• (l) the Paternity Leave and Benefit Act 2016.

• (4) On the establishment day, each person who immediately before that day was a member of the staff of the Pensions Ombudsman shall be accepted into the office of the Ombudsman on secondment for a period of 2 years from the establishment day 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.

Chapter 3 Accounts and audits

36. Final accounts and final annual report of dissolved bodies

36. (1) The Ombudsman shall, in respect of the period specified in subsection (3), prepare final accounts of each of the dissolved bodies.

• (2) The Ombudsman shall submit the final accounts referred to in subsection (1) to the Comptroller and Auditor General for audit not later than 4 months after the establishment day.

• (3) For the purposes of subsection (1), the Minister may specify a period that is longer or shorter than a financial year of a dissolved body.

• (4) The Ombudsman shall prepare a final annual report for each of the dissolved bodies and submit the reports to the Minister and Minister for Social Protection not later than 6 months after the establishment day.

• (5) Section 20 shall apply with the necessary modifications in relation to final accounts prepared under this section.

• (6) Section 24 shall apply with the necessary modifications in relation to an annual report prepared under this section.

PART 4 Financial Services and Pensions Ombudsman Council

37. Establishment of Council

37. (1) There shall stand established on the establishment day a body, which shall be known as Comhairle an Ombudsman Seirbhísí Airgeadais agus Pinsean or, in the English language, as the Financial Services and Pensions Ombudsman Council (in this Act referred to as the “Council”) to perform the functions conferred on it by this Act.

• (2) The Council shall consist of not less than 5 and not more than 7 members (including the chairperson) as the Minster decides, of which there shall be the following:

• (a) a chairperson who shall have knowledge and experience of consumer issues relating to the provision of either, or both, financial services and pension services;

• (b) ordinary members, including:

• (i) not less than 2 persons who have knowledge or experience of consumer protection and other consumer issues relating to the provision of financial services;

• (ii) not less than one person who has knowledge or experience of the financial services industry; and

• (iii) not less than one person who has knowledge or experience in relation to the pensions industry.

• (3) Subject to subsection (4), the members of the Council shall be appointed by the Minister from among persons in respect of whom a recommendation for the purposes of this section has been made by the Public Appointments Service consequent upon the holding of a competition in accordance with the Act of 2004.

• (4) One member of the Council shall be nominated for appointment under subsection (3) by the Minister for Social Protection from among the persons referred to in subsection (3).

• (5) The Public Appointments Service shall, in relation to a competition referred to in subsection (3), not make a recommendation for the purposes of that subsection in respect of more than 3 persons in respect of each vacancy.

• (6) The Minister shall appoint a chairperson from among the members of the Council.

• (7) A member of the Council shall hold office for such period not exceeding 5 years from the date of his or her appointment as the Minister may determine.

• (8) Subject to subsection (9), the Minister may reappoint a person whose term of office as a member of the Council expires by the efflux of time.

• (9) The member of the Council referred to in subsection (4) may be reappointed only if renominated by the Minister for Social Protection.

• (10) The Ombudsman shall, on the request of the chairperson of the Council, as far as it is practical to do so, arrange for the Council to be provided with such administrative services (including technical and legal advice) as the Council requires to perform its functions.

• (11) Schedule 2 shall apply to the Council.

38. Chairperson and members of Financial Services Ombudsman Council

38. (1) The person who, immediately before the establishment day, was the chairperson of the Financial Services Ombudsman Council shall, on the establishment day, become and be the chairperson of the Council, and shall continue as such chairperson under this Part subject to the same terms and conditions as applied to his or her appointment immediately before such commencement.

• (2) A person who immediately before the establishment day was a member of the Financial Services Ombudsman Council, shall, on the establishment day, become and be a member of the Council, and shall continue as such member under this Part subject to the same terms and conditions as applied to his or her appointment immediately before such commencement.

39. Financial Services Ombudsman Council

39. The functions carried out by the Financial Services Ombudsman Council before the establishment day, shall on and from the establishment day be deemed to have been carried out by the Council.

40. Functions of Council

40. (1) The functions of the Council shall be—

• (a) to determine and prescribe by regulation, in accordance with section 43, the financial services industry levy,

• (b) to keep under review the efficiency and effectiveness of the Ombudsman and to advise the Minister, either at the Minister’s request or on its own initiative, on any matter relevant to the performance of the functions of the Ombudsman,

• (c) to advise the Ombudsman on any matter on which the Ombudsman seeks advice (including advice in relation to the development and publication of guidelines and procedures in relation to the complaints process and investigations under this Act), and

• (d) to carry out such other functions as are conferred on it by this Act.

• (2) The Council shall have all such powers as are necessary or expedient for the performance of its functions.

• (3) The Council shall have no role in the manner in which the Ombudsman deals with a particular complaint.

41. Accountability of chairperson of Council to Oireachtas Committees

41. (1) In this section “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 sub-committee of a committee referred to in paragraph (a) or (b).

• (2) Subject to subsection (3), the chairperson of the Council shall, at the request in writing of a Committee, attend before it to give account for the general administration and functions of the Council.

• (3) The chairperson of the Council shall not be required to give account before a Committee for any matter that—

• (a) is or has been or may at a future time be the subject of proceedings before a court or tribunal (including an adjudication officer and the Labour Court) in the State, or

• (b) relates to a specific complaint that was or is under investigation by, or has been submitted to, the Ombudsman.

• (4) Where the chairperson of the Council 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 subsection (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 chairperson of the Council is before it, the information shall be so conveyed in writing.

• (5) Where the chairperson of the Council has informed a Committee of his or her opinion in accordance with subsection (4) and the Committee does not withdraw the request referred to in subsection (2) in so far as it relates to a matter the subject of that opinion—

• (a) the chairperson of the Council 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 decision of the question whether the matter is one to which subsection (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 decision of an application under subsection (5), the chairperson of the Council 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 subsection (3) applies, the Committee shall withdraw the request referred to in subsection (2), but if the High Court determines that subsection (3) does not apply, the chairperson of the Council shall attend before the Committee to give account for the matter.

• (8) In the performance of his or her duties under this section, the chairperson of the Council 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.

42. Annual report of Council

42. (1) The chairperson of the Council shall prepare a report on the work of the Council in respect of each financial year.

• (2) A report prepared under subsection (1) shall—

• (a) be included in the annual report of the Ombudsman, and

• (b) include information in such form and regarding such matters as the Minister may direct, but nothing in this subsection shall be construed as requiring the chairperson of the Council to include:

• (i) information the inclusion of which would, in his or her opinion, be likely to prejudice the performance of the functions of the Council; or

• (ii) information or comments on any complaint that has been, or is being, investigated by the Ombudsman.

43. Financial services industry levy

43. (1) In this section, “Council regulations” means regulations made by the Council, with the consent of the Minister, under subsection (4).

• (2) Each financial service provider shall be liable to pay an annual charge (in this Act referred to as the “financial services industry levy”) in respect of the services provided by the Ombudsman to the financial services industry.

• (3) The financial services industry levy shall be paid to the Office on or before the date prescribed by the Council in regulations, in respect of the period concerned and in the manner specified by the Council.

• (4) The Council shall, with the consent of the Minister, prescribe by regulation the financial services industry levy to be paid having regard to the expenditure incurred or reasonably expected to be incurred by the Office in relation to complaints received by the Office in relation to financial service providers.

• (5) The Council regulations may, having had regard to the number and type of complaints received by the Ombudsman, prescribe a different financial services industry levy under subsection (4) in respect of different financial service providers or different classes of financial service providers.

• (6) The amount of the financial services industry levy prescribed under subsection (4) shall not exceed those sums necessary to fund the operation of the Office having regard to the income and expenditure mentioned in section 19.

• (7) The Council regulations may prescribe—

• (a) having had regard to one or more of the following:

• (i) the amount of the outstanding levy or annual charge;

• (ii) the length of delay in payment of the outstanding levy or charge;

• (iii) a pattern, if any, of failure to pay, or to pay on time, the levy or charge,

the penalties that shall be payable in cases of failure to pay the financial services industry levy or failure to pay the annual charge on time,

• (b) requirements in relation to the keeping of records and making of returns to the Office by persons who are liable to pay the financial services industry levy,

• (c) requirements in relation to the collection and recovery of the financial services industry levy by the Office,

• (d) general or special exemptions from the payment of the financial services industry levy (wholly or partly) in different circumstances,

• (e) a reduction in the financial services industry levy having regard to the method of payment of the charge, and

• (f) the financial service providers and different classes of financial services required to pay the financial services industry levy.

• (8) The financial services industry levy shall be recoverable by the Office as a simple contract debt in any court of competent jurisdiction.

PART 5 Complaints to the Ombudsman

44. Making of complaints

44. (1) Subject to section 51(2), a complainant may make a complaint to the Ombudsman in relation to the following:

• (a) the conduct of a financial service provider involving—

• (i) the provision of a financial service by the financial service provider,

• (ii) an offer by the financial service provider to provide such a service, or

• (iii) a failure by the financial service provider to provide a particular financial service requested by the complainant;

• (b) the conduct of a pension provider involving—

• (i) the alleged financial loss occasioned to a complainant by an act of maladministration done by or on behalf of the pension provider, or

• (ii) any dispute of fact or law that arises in relation to conduct by or on behalf of the pension provider;

• (c) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted on or after the establishment day.

• (2) A complainant may not make a complaint under subsection (1) where—

• (a) the conduct giving rise to the complaint is or has been the subject of—

• (i) legal proceedings before a court or tribunal, or

• (ii) subject to subsection (3), a decision of the Ombudsman, the Financial Services Ombudsman or the Pensions Ombudsman,

• (b) the substance of the complaint has been communicated to the financial service provider or the pension provider concerned and that financial service provider or pension provider has, subject to section 54, not been given a reasonable opportunity to deal with the matter, or

• (c) the conduct complained of relates to a matter that—

• (i) is within the jurisdiction of the F20[Workplace Relations Commission, the Credit Reviewer] or the Pensions Authority, or an alternative suitable forum or tribunal,

• (ii) is of a class prescribed by regulations made by the Minister under section 4, or

• (iii) occurred outside the time limits specified in section 51.

• (3) Where, in respect of a complaint made under the Act of 1942—

• (a) the Financial Services Ombudsman refused to consider a complaint on the basis that the complaint was outside the time limit specified in the Act of 1942 for making complaints, and

• (b) that complaint under the Act of 1942 now falls within the time limit specified in section 51,

the complainant may make a further complaint to the Ombudsman.

• (4) A complainant may make a complaint under subsection (1) where the conduct complained of occurred before the commencement of this Act provided the conduct concerned occurred within the time limits specified in section 51.

• (5) A complaint under subsection (1) shall, subject to subsection (6), be in writing or such format as the Ombudsman considers appropriate in the circumstances.

• (6) The Ombudsman may, where he or she considers it appropriate to do so, accept a complaint that is not in writing and, where it is so accepted, the Ombudsman shall reduce the complaint to writing as soon as practicable.

• (7) The Ombudsman shall publish on his or her website or by way of other communications generally available to the public the format of complaints that are acceptable.

• (8) As soon as practicable after receiving a complaint in relation to the conduct of a financial service provider or a pension provider, the Ombudsman shall provide the financial service provider or the pension provider, as the case may be, with details of the complaint.

• (9) The Ombudsman may enter into an arrangement with a person under which that person will receive complaints on behalf of the Ombudsman.

• (10) A complaint received by a person under the arrangement referred to in subsection (9) is, for the purposes of this Part, taken to have been received by the Ombudsman.

• (11) Where the Bank, or the Pensions Authority, receives a complaint that appears to be within the jurisdiction of the Ombudsman—

• (a) the Bank or the Pensions Authority, as the case may be, shall, without delay, refer the complaint to the Ombudsman for investigation, and

• (b) a complaint made under this subsection is, for the purposes of this Part, taken to have been made under subsection (1), by the complainant concerned.

45. Death or disability of complainant

45. (1) Where a complainant dies, is a minor or is otherwise unable to act for himself or herself, then—

• (a) any complaint 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, other than in this section, to a complainant shall be construed as including a reference to the appropriate person.

• (2) For the purposes of subsection (1)—

• (a) “appropriate person” means—

• (i) where the complainant has died, his or her legal personal representative, or

• (ii) in any other case, a member of his or her family, or some other person who is considered by the Ombudsman to be a suitable person to represent him or her,

and

• (b) the reference to “complainant”, in so far as that subsection relates to a person who is a minor or who is otherwise unable to act for himself or herself, includes a reference to an intending complainant.

46. Continuation of investigation on death of complainant

46. The power of the Ombudsman in relation to the continuation of an investigation on the death of a complainant may be exercised in relation to the following:

• (a) any complaint received by the Ombudsman on or after the establishment day;

• (b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day where a decision of the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, has not been made.

47. Powers of Ombudsman in relation to investigation of complaint

47. (1) Other than in respect of a complaint specified in section 44(2), the Ombudsman may conduct an investigation into a complaint referred to him or her.

• (2) The Ombudsman shall keep the parties to the complaint informed as to the progress of the investigation.

• (3) In conducting an investigation, the Ombudsman may—

• (a) require any person, who in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his or her power or control, that is relevant to the investigation, to—

• (i) provide to him or her that information, either orally or in writing,

• (ii) produce to him or her that document or a copy of the document,

and

• (b) require any person to attend before him or her, either voluntarily or by way of summons, and be F22[examined and cross-examined on oath or affirmation] in relation to any matter, including to produce a document or copy of a document referred to in paragraph (a)(ii), that appears to the Ombudsman to be relevant to the investigation.

• (4) The Ombudsman shall give notice of a requirement under subsection (3) either orally or in writing and shall specify in the notice—

• (a) the information or document required,

• (b) the date by which the information or document is required, and

• (c) the place at which attendance, if any, is required.

• (5) Subject to any regulations made under section 4, the procedure for the making of complaints and the conduct of investigations shall be such as the Ombudsman considers appropriate in all the circumstances of the case, and he or she may, in particular, obtain information from such persons and in such manner, and make such enquiries, as he or she thinks fit.

• (6) When investigating a complaint about the conduct of a financial service provider or a 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 the pension provider, or by any other body or person who is 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 who appears to be in charge of the document to reproduce it in a legible form or to provide to the Ombudsman such information as the Ombudsman reasonably requires in relation to that document.

• (8) Without prejudice to the powers conferred by this Part, the Ombudsman shall, for the purposes of an investigation under this section, have all the powers, rights and privileges vested in the High Court or a judge of that court on the hearing of civil proceedings in respect of the examination of witnesses, including the administration of oaths and affirmations and the examination of witnesses outside the State.

• (9) Subject to this Part, a person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.

• (10) Information provided by a person in response to a requirement under subsection (3), or an answer to a question put to a person in the course of a requirement under subsection (3), is not admissible as evidence against that person in criminal proceedings other than in respect of perjury or an offence committed under section 59.

• (11) Nothing in this section shall require any person to provide information or produce a document, or a copy of a document, the communication of which is subject to legal professional privilege.

48. Investigation by Ombudsman of complaints made before establishment day

48. The power of the Ombudsman to conduct an investigation under section 47 shall apply to any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that—

• (a) had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be,

• (b) was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted, on or after the establishment day, or

• (c) was being investigated by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be.

49. Staying of court proceedings

49. Where—

• (a) a complaint has been made to the Ombudsman, and

• (b) any party to the complaint subsequently commences proceedings in any court against any other party to the complaint in respect of any of the matters which are the subject of the complaint,

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 party that commenced the proceedings 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.

PART 6 Complaints Procedure

50. Jurisdiction of Ombudsman

50. (1) Notwithstanding F23[subsection (3)(b) and section 44(2)(a)(i)], the Ombudsman may accept a complaint against a financial service provider or a pension provider that has initiated legal proceedings in relation to a matter to which the complaint relates, where the Ombudsman believes, based on reasonable grounds, that the financial service provider or the pension provider, as the case may be, has begun those proceedings in order to prevent the making of the complaint, or to frustrate or delay its investigation.

• (2) Where a question arises as to whether the Ombudsman has jurisdiction, under this Act, to investigate a complaint, the question shall be determined by the Ombudsman whose decision shall be final.

• (3) The Ombudsman shall not investigate or make a decision on a complaint where—

• (a) the internal dispute resolution procedures required under section 54 have not been complied with,

• (b) there are or have been proceedings (other than where the proceedings have been stayed under section 49) before any court in respect of the matter that is the subject of the investigation,

• (c) the complaint relates to a matter that is within the jurisdiction of the F23[Workplace Relations Commission, the Credit Reviewer or the Pensions Authority,] or an alternative suitable forum or tribunal, or

• (d) the complaint, or any matter arising in connection with the complaint, is excluded from the jurisdiction of the Ombudsman by regulations made under section 4.

51. Time limits for complaints to Ombudsman

51. (1) A complaint in relation to conduct referred to in section 44(1)(a) that does not relate to a long-term financial service shall be made to the Ombudsman not later than 6 years from the date of the conduct giving rise to the complaint.

• (2) A complaint in relation to—

• (a) conduct referred to in section 44(1)(a) that, subject to the requirements specified in subsection (3), relates to a long-term financial service, or

• (b) conduct referred to in section 44(1)(b), that is subject to the requirements specified in subsection (4),

shall be made to the Ombudsman within whichever of the following periods is the last to expire:

• (i) 6 years from the date of the conduct giving rise to the complaint;

• (ii) 3 years from the earlier of the date on which the person making the complaint became aware, or ought reasonably to have become aware, of the conduct giving rise to the complaint;

• (iii) such longer period as the Ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period.

• (3) The requirements referred to in subsection (2)(a) are that—

• (a) the long-term financial service concerned has not expired or otherwise been terminated more than 6 years before the date of the complaint, and the conduct complained of occurred during or after 2002, or

• (b) the Ombudsman has allowed a longer period under subsection (2)(iii).

• (4) The requirements referred to in subsection (2)(b) are that—

• (a) where the conduct occurred prior to the establishment day, that conduct occurred within the period between 13 April 1996 and the establishment day, or

• (b) the Ombudsman has allowed a longer period under subsection (2)(iii).

• (5) For the purposes of subsections (1) and (2)—

• (a) 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, and

• (b) conduct that consists of a single act or omission is taken to have occurred on the date of that act or omission.

• (6) The time limits specified in this section shall, on and after the establishment day, apply to the following:

• (a) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman which had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be;

• (b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted to the Ombudsman on or after the establishment day.

52. Declining to investigate

52. (1) The Ombudsman may decline to investigate, or discontinue an investigation of, a complaint where, in the opinion of the Ombudsman—

• (a) the complaint is frivolous or vexatious or was not made in good faith,

• (b) the subject matter of the complaint is trivial,

• (c) the conduct complained of occurred at too remote a time to justify investigation,

• (d) there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of,

• (e) the complainant has no interest or an insufficient interest in the conduct complained of, or

• (f) the subject matter of the complaint is of such a degree of complexity that the courts are a more appropriate forum.

• (2) The Ombudsman may make preliminary inquiries for the purposes 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 such reasonable period specified by the Ombudsman.

• (3) The Ombudsman may decide not to continue to investigate a complaint where the complainant fails within a reasonable period to comply with a request for further written particulars.

• (4) The Ombudsman shall determine a complaint under section 44 to be inadmissible where it was made after the expiry of the time limits specified in section 51.

• (5) 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.

53. Complaints declined where section 52 applies

53.The Ombudsman may, where section 52 applies,decline to investigate, or discontinue an investigation of, a complaintreceived—

• (a) by the Ombudsman on or after the establishment day,

• (b) by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day where a decision of the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, has not been made.

54. Use of internal dispute resolution procedures

54. (1) The Ombudsman may decide not to investigate or make a decision on a complaint where—

• (a) the complainant has not engaged with the financial service provider or the pension provider concerned, and

• (b) that financial service provider or pension provider has not been given a reasonable opportunity to deal with the complaint, as the case may be, through the internal dispute resolution procedures of the provider concerned.

• (2) The time limit specified in section 51 is suspended for the period during which a complaint is being considered under the appropriate internal dispute resolution procedure.

• (3) Notwithstanding subsection (1) the Ombudsman may consider a complaint against a financial service provider or a pension provider before the internal dispute resolution process is completed where—

• (a) the financial service provider or the pension provider concerned has failed to complete the internal dispute resolution process referred to in subsection (1) so as to allow the complainant to make a complaint to the Ombudsman within the time limit specified in section 51, or

• (b) the Ombudsman determines a complaint is of such importance as to warrant waiving the internal dispute resolution procedure.

• (4) The Ombudsman may waive the internal dispute resolution procedures referred to in subsection (2), in respect of the following:

• (a) any complaint received by the Ombudsman on or after the establishment day;

• (b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day which had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be;

• (c) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively that has, subject to the time limits in section 51, been resubmitted on or after the establishment day.

• (5) The Ombudsman shall publicise on his or her website, and make available to financial service providers and pension providers, information in respect of his or her discretion to waive the internal dispute resolution procedures referred to in subsection (4).

55. Requirement for internal dispute resolution procedures

55. (1) The Minister may by regulation require F25[financial service providers, or certain classes of financial service providers, and pension providers, or certain classes of pension providers,] to establish procedures for dealing with complaints.

• (2) Regulations under this section may—

• (a) require procedures referred to in subsection (1) to comprise specified steps, including, as the Minister considers appropriate—

• (i) the making of an application for a determination to be made in relation to the complaint,

• (ii) the conducting of a hearing in relation to the matter concerned, and

• (iii) the making of a determination in relation to the matter,

• (b) require one or more of the internal dispute resolution steps to be taken or completed within a specified period,

• (c) require the provision of information in relation to the existence of those procedures and how they may be availed of,

• (d) prescribe such other requirements as the Minister considers necessary or expedient for the purpose of enabling complaints referred to in this subsection to be dealt with or resolved,

• (e) require F25[financial service providers, or certain classes of financial service providers, and pension providers, or certain classes of pension providers,] to publish their internal dispute resolution procedures, and

• (f) as respects schemes, specify different requirements by reference to the class of scheme concerned (being a class defined in the regulations by reference to the number of members of the scheme or such other matters as the Minister considers appropriate).

56. Conduct of investigation

56. (1) The conduct of investigations under this Part shall be undertaken 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) The Ombudsman shall advise the parties to the complaint in writing of the conduct of investigation to be undertaken under subsection (1).

• (3) Where the Ombudsman proposes to conduct an investigation into a complaint made under this Part, he or she shall provide the parties, and any other person who, in the opinion of the Ombudsman, might be adversely affected by any decision he or she may make in relation to the complaint, an opportunity to—

• (a) make submissions with respect to the conduct the subject of the complaint, and

• (b) comment on any allegations contained in the complaint or reference.

• (4) F26[Subject to subsection (4A), the Ombudsman shall], without prejudice to the form of investigation, ensure investigations are conducted otherwise than in public.

• F27[(4A) Where an investigation into a complaint made under this Part includes an oral hearing, the Ombudsman shall, on his or her own motion or upon the application by or on behalf of a party to the complaint, having consulted with the parties to the complaint and having considered the nature or circumstances of the complaint and whether it is in the interests of justice to do so, decide whether the oral hearing shall be conducted in public.]

• (5) 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 the Ombudsman thinks fit.

• (6) 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 and any evidence or facts considered to arrive at that preliminary decision.

• (7) Where the Ombudsman considers, during an investigation or following the completion of an investigation, that there is—

• (a) a persistent pattern of complaints (whether he or she finds that such complaints are upheld or not),

• (b) a persistent pattern of facts or evidence arising from the complaints, or

• (c) any other matter that would be of concern to the Bank or the Pensions Authority,

the Ombudsman shall inform the Bank or the Pensions Authority, as the case may be.

57. Complaints for investigation by Ombudsman

57. Investigations by the Ombudsman in respect of the following complaints shall be conducted in accordance with this Act:

• (a) any complaint received by the Ombudsman on or after the establishment day;

• (b) any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day where a decision of the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, or a decision of the Ombudsman has not been made.

58. Mediation

58. (1) The Ombudsman shall, as part of an investigation, try, as far as possible, to resolve a complaint by mediation.

• (2) The Ombudsman shall engage with complainants and providers to ensure that the objective of mediation is understood to promote engagement in the mediation process.

• (3) Participation in mediation by the parties to a complaint is voluntary, and a party may withdraw at any time.

• F28[(3A) The Ombudsman shall conduct a mediation under this section in private.]

• (4) The Ombudsman may, on reasonable grounds, abandon an attempt to resolve a complaint by mediation as he or she considers appropriate.

• (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 in the State.

• (6) Where an attempt to resolve a complaint by mediation is unsuccessful, the Ombudsman shall—

• (a) deal with the complaint in accordance with section 56, and

• (b) notify the parties in writing accordingly.

59. Obstruction of work of Ombudsman

59. (1) A person who—

• (a) obstructs or hinders the Ombudsman in the performance of the functions conferred by this Act,

• (b) does anything which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court,

• (c) without reasonable excuse, fails to comply with a requirement or request made by the Ombudsman under this Act,

• (d) in purported compliance with a requirement or request referred to in paragraph (c), gives information that the person knows to be false or F29[misleading,]

• F29[(e) refuses to comply with a summons to attend before, or to be examined and cross-examined on oath or affirmation by, the Ombudsman, or]

• F30[(f) gives evidence on oath or affirmation that is false and that he or she knows to be false,]

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.

• (2) The Ombudsman may apply to the Circuit Court for an order against a person where it appears to the Ombudsman that the person—

• (a) has failed to comply with a requirement made to the person by the Ombudsman under section 47,

• (b) has failed to comply with a summons under section 47(3)(b) to appear before the Ombudsman for examination,

• (c) having complied with a summons referred to in paragraph (b), has refused to be examined, or

• (d) has otherwise obstructed the Ombudsman in the exercise of a power conferred by this Part.

• (3) Where, on hearing an application seeking an order under subsection (2) against a person, the Circuit Court is satisfied that the person concerned has failed or refused to do the act in question, the Circuit Court may make an order requiring the person to do that act.

• (4) The Circuit Court may not hear an application for an order under subsection (2) 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.

• (5) On the hearing of an application for an order under subsection (2) against a person, the Circuit Court shall set aside a requirement made to the person—

• (a) to provide information,

• (b) to appear before and be examined by the Ombudsman,

• (c) to produce a document or other thing, or

• (d) 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.

60. Complaints and redress: financial service providers

60. (1) On completing an investigation of a complaint relating to a financial service provider that has not been settled or withdrawn, the Ombudsman shall make a decision in writing that the complaint—

• (a) is upheld,

• (b) is substantially upheld,

• (c) is partially upheld, or

• (d) is rejected.

• (2) A complaint may be found to be upheld, substantially upheld or partially upheld only on one or more of the following grounds:

• (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) A decision of the Ombudsman under this section shall be communicated to the parties by the Ombudsman and such decision shall include the following:

• (a) the decision under subsection (1);

• (b) the grounds for the decision under subsection (2);

• (c) any direction given under subsection (4).

• (4) Where a complaint is found to be upheld, substantially upheld or partially upheld, the Ombudsman may direct the 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 that the Ombudsman considers appropriate having had regard to all the circumstances of the complaint.

• F31[(4A)
• (a) In paragraph (b) and subsections (4B) and (4C) “Act of 2019” means the Consumer Insurance Contracts Act 2019.

• (b) Subsection (4B) is without prejudice to the generality of subsection (2) as it operates to enable the Ombudsman to make decisions by reference to, amongst other things, the enactments concerning the financial service concerned, including, as the case may be, the Act of 2019.

• (4B) The provisions of section 26 of the Act of 2019 apply in relation to the power of the Ombudsman under subsection (4)(d) to direct the payment of compensation in a complaint involving a contract of insurance as they apply in relation to the power of a court of competent jurisdiction to make an award of damages in a claim under a contract of insurance.

• (4C) The power under section 26 of the Act of 2019 shall not be exercised by the Ombudsman to an extent that such exercise would have the result that the total sum of compensation payable in respect of the complaint concerned exceeds the amount which, by way of compensation, the Ombudsman has jurisdiction to direct the payment of under this Act.]

• (5) Other than where a greater amount of compensation is prescribed by regulations made under section 4, the Ombudsman may not direct the payment of an amount of compensation exceeding—

• (a) €26,000 per annum, where the subject of a complaint is an annuity, or

• (b) €250,000 in respect of all other complaints.

• (6) A direction under subsection (4) which requires a 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 where the amount is not paid by a date specified in the direction.

• (7) The Ombudsman shall give a copy of a decision under this section to—

• (a) the complainant, and

• (b) the financial service provider to which the complaint relates.

• (8) Where a decision under this section contains a direction under subsection (4), the 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, not later than 14 days after the end of that period or extended period referred to in paragraph (a), notify in writing the Ombudsman of action taken or proposed to be taken in consequence of the direction.

61. Complaints and redress: pension providers

61. (1) On completing an investigation of a complaint relating to a pension provider that has not been settled or withdrawn, the Ombudsman shall make a decision in writing in relation to the complaint.

• (2) A decision under subsection (1) may contain such direction to the parties concerned as the Ombudsman considers necessary or expedient for the satisfaction of the complaint or the resolution of the complaint.

• (3) Where the Ombudsman makes a direction under subsection (2) 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 scheme, or

• (b) the substitution of the decision of the Ombudsman for that of the pension provider in relation to the exercise by the pension provider of a discretionary power under the rules of the scheme.

• (4) Subject to subsection (5), the Ombudsman may order such redress, including financial redress, for the complainant as he or she considers appropriate.

• (5) Any financial redress under subsection (4) shall be of such amount as the Ombudsman deems just and equitable having regard to all the circumstances and to this Part but shall not exceed any actual loss of benefit under the scheme concerned.

• (6) A decision under subsection (1) shall be communicated to the parties by the Ombudsman and such decision shall include the following:

• (a) the decision;

• (b) the grounds for the decision;

• (c) any direction given under subsection (2).

62. Decisions of Ombudsman

62. (1) Subject to the outcome of any appeal under Part 7 against a decision of the Ombudsman under F32[section 60 or 61] in respect of a complaint, the decision is binding on any party to the complaint.

• F32[(2) Subject to subsection (2A), the Ombudsman—

• (a) shall publish—

• (i) decisions made by him or her after the establishment day in relation to complaints concerning financial service providers, and

• (ii) case studies in relation to complaints concerning pension providers,

and

• (b) may, if he or she considers it appropriate to do so in any particular case, publish, in such form as he or she thinks fit, a report in relation to any investigation under this Part and the result of that investigation,

in such a manner that—

• (I) ensures that—

• (A) a complainant shall not be identified by name, address or otherwise, and

• (B) a financial service provider or a pension provider, as the case may be, shall not be identified by name or address,

and

• (II) ensures compliance with the Data Protection Regulation and the Data Protection Act 2018.]

• F33[(2A) Where the Ombudsman has, as part of an investigation into a complaint, conducted an oral hearing in public under section 56(4A), the Ombudsman may identify the complainant and either the financial service provider or the pension provider concerned when publishing decisions, case studies or reports, as the case may be, under subsection (2).]

• (3) F34[…]

• (4) For the purposes of the law of defamation, the publication by the Ombudsman of F32[any decision, case study or report, as the case may be, under subsection (2)] shall be absolutely privileged, and immune from legal proceedings.

• F35[(5) In this section, "Data Protection Regulation" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016⁵³ on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).]

PART 7 Appeals and Applications to Court

63. Definitions (Part 7)

63. In this Part—

“decision” means a decision of the Ombudsman under section 60 or 61; and

“direction” means a direction included in a decision.

64. Appeals

64. (1) A party to a complaint before the Ombudsman may appeal to the High Court against a decision or direction of the Ombudsman.

• (2) An appeal under this section shall be made—

• (a) not later than 35 days after the date of notification of the decision of the Ombudsman, or

• (b) within such further period, as the court considers just and equitable in all the circumstances.

• (3) The orders that may be made by the High Court on the hearing of an appeal under this section include (but are not limited to) one or more of the following:

• (a) an order affirming the decision or direction of the Ombudsman, subject to such 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 the Ombudsman for review with its opinion on the matter;

• (d) such other order in relation to the matter as it considers just in all the circumstances;

• (e) such order as to costs as it thinks fit;

• (f) an order amending the decision or direction of the Ombudsman, as the case may be.

• (4) The Ombudsman may be made a party to an appeal under this section.

• (5) Where the High Court makes an order remitting to the Ombudsman a decision or direction of the Ombudsman for review, the Ombudsman shall review the decision or direction in accordance with any directions of the court.

• (6) The decision of the High Court on the hearing of such an appeal is final, other than that a party to the appeal may apply to the Court of Appeal to review the decision on a question of law (but only with the leave of either of those courts, as appropriate).

• (7) A decision or direction of the Ombudsman does not take effect, and may not be implemented, while an appeal under subsection (1) or an application under subsection (6) is pending in relation to the decision or direction.

65. Enforcement of Ombudsman decision

65. (1) Where a financial service provider or a pension provider fails or refuses to comply with a decision of the Ombudsman, within the period, or by the date, specified in the decision, the Circuit Court shall, on application to it on that behalf by—

• (a) the Ombudsman, as he or she sees fit, or

• (b) the complainant in whose favour the decision was made,

make an order.

• (2) In subsection (1), the reference to a decision is a reference to such a decision 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 order under this section other than where—

• (a) the financial service provider or the pension provider concerned appears at the hearing as respondent to the application, or

• (b) the financial service provider or the pension provider concerned does not appear at the hearing, the court is satisfied that a copy of the application has been served on that financial service provider or pension provider.

• (4) The Circuit Court may not hear an application for an order under this section where the person that is the financial service provider or the pension provider, as the case may be, has appealed against the decision or direction and—

• (a) the decision or direction has not been affirmed (with or without modification), or

• (b) that provider concerned has not withdrawn the appeal.

• (5) On hearing an application for an order under this section, 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 the pension provider concerned to comply with the direction within a period, or by a date, specified in the order.

• (6) Notwithstanding subsection (1), where, in considering an application under that subsection, the Circuit Court is satisfied that, owing to lapse of time, it would not be possible to comply with an order under that subsection, the court shall make an order providing for such redress as it considers appropriate having regard to this Part and all the circumstances.

• (7) In an order under this section 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 person that is the financial service provider or the pension provider concerned to pay to the complainant 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 decision or direction concerned is communicated to the parties and ending on the date of the order.

• (8) An application to the Circuit Court under this section shall be made to the judge of the Circuit Court for the circuit—

• (a) in which the relevant complainant ordinarily resides, or

• (b) the financial service provider or the pension provider, as the case may be, has its principal place of business in the State.

24. Questions of law to High Court

66. (1) When dealing with a complaint, the Ombudsman may, on his or her own initiative or at the request of the complainant or the person that is the financial service provider or the 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 section.

• (3) Where a question of law in connection with the complaint concerned has been referred to the High Court under this section, the Ombudsman may not—

• (a) make a decision 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.

67. Appeal of Ombudsman decision

67. Any appeal to the High Court of a decision taken by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be, that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as a reference to the Office.

68. Application to Circuit Court

68. Any application to the Circuit Court that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as an application by the Office.

69. Application to District Court

69. Any application to the District Court that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as an application by the Office.

70. Conviction

70. Any appeal against a conviction that, immediately before the establishment day, named the Financial Services Ombudsman, the Pensions Ombudsman or any of the dissolved bodies shall, on and from that day, be read as a reference to the Office.

71. Enforcement proceedings

71. Any application for an enforcement order under section 141 of the Act of 1990 that, immediately before the establishment day, named the office of the Pensions Ombudsman, shall, on and from that day, be read as an application by the Office.

72. Power of court to grant injunctions in certain cases

72. (1) The High Court may, on an application made by the Ombudsman, grant an injunction restraining the conduct of a financial service provider or a pension provider which is engaging, or in which a financial service provider or a pension provider appears likely to engage, where the conduct is conduct that is being investigated or is proposed to be investigated or in relation to which a complaint has been received by the Ombudsman.

• (2) In the case of a financial service provider, the High Court may not grant an application under subsection (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 may make if the Ombudsman were to find the complaint to which the conduct relates is upheld, substantially upheld or partially upheld.

• (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 subsection (1).

PART 8 Other Transitional Provisions

73. Saving of regulations made by former Council

73. (1) Any regulations (whether or not a statutory instrument to which the Statutory Instruments Act 1947 primarily applies) made or issued by or on behalf of the Financial Services Ombudsman Council, made and in force immediately before the establishment day have, on and after that day, the same force and effect as they had prior to that day.

• (2) An instrument referred to in subsection (1) may be revoked or amended by the Minister as if made by the Minister.

74. Financial Services Ombudsman’s Bureau

74. Any function that, immediately before the establishment day, was vested in the Financial Services Ombudsman’s Bureau shall on and from the establishment day be transferred to the Office.

PART 9 Consequential Amendments

75. Amendment of Central Bank Act 1942

75. The Act of 1942 is amended—

• (a) in section 2—

• (i) by deleting the definitions of “Financial Services Ombudsman” and “Deputy Financial Services Ombudsman”,

• (ii) by inserting after the definition of “Currency Act 1927 ” the following:

“ ‘Deputy Financial Services and Pensions Ombudsman’ means a person appointed under section 8(1)(b) ofthe Financial Services and Pensions Ombudsman Act 2017 (No. ____ of 2017);”,

• (iii) by inserting after the definition of “financial futures and options exchange” the following:

“‘Financial Services and Pensions Ombudsman’ means a person appointed under section 8(1)(a) ofthe Financial Services and Pensions Ombudsman Act 2017 (No. ____ of 2017);”,

and

• (iv) in the definition of “regulated financial service provider”—

• (I) in paragraph (bb), by substituting “enactment;” for “enactment, or”, and

• (II) by deleting paragraph (c),

• (b) in section 33AK(5)(ak), by substituting “Financial Services and Pensions Ombudsman” for “Financial Services Ombudsman”,

• (c) in section 61E(1) by substituting for paragraphs (ga) and (gb) the following:

• “(gc) the Financial Services and Pensions Ombudsman,”,

and

• (d) in section 61H(4) by substituting for paragraph (b) the following:

• “(b) the Financial Services and Pensions Ombudsman,”.

76. Amendment of Freedom of Information Act 2014

76. Part 1 of Schedule 1 to the Freedom of Information Act 2014 is amended on the establishment day—

• (a) by deleting paragraphs (ab) and (ae),

• (b) by substituting “functions,” for “functions.” in paragraph (ai), and

• (c) by inserting after paragraph (ai) the following:

• “(aj) the Financial Services and Pensions Ombudsman, insofar as it relates to records concerning the mediation, investigation or adjudication of a complaint carried out by the Financial Services and Pensions Ombudsman under the Financial Services and Pensions Ombudsman Act 2017 (No. ____ of 2017);”.

PART 10 Miscellaneous

77. Reciprocal arrangements with EEA countries

77. (1) In this section—

“complaint” includes a complaint within the meaning of the EEA Memorandum of Understanding; and

“EEA Memorandum of Understanding” means the “Memorandum of Understanding on a Cross-border Out-of-Court Complaints Network for Financial Services” or, if the memorandum is amended or is replaced by another memorandum, means the memorandum as so amended or that other memorandum.

• (2) References to the Financial Services Ombudsman in the EEA Memorandum of Understanding in respect of its subscription shall, with the approval of the Council, be read as references to the Ombudsman.

• (3) The Ombudsman may refer a complaint, concerning a financial service provider, made to him or her 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, concerning a financial service provider, referred to him or her by another EEA dispute settlement body in accordance with the terms of the EEA Memorandum of Understanding.

SCHEDULE 1 Repeals and Revocations

Section 5

PART 1 Acts of the Oireachtas

Reference (1)	Number and year (2)	Short title (3)	Extent of repeal (4)
1.	No. 22 of 1942	Central Bank Act 1942	Part VII
2.	No. 25 of 1990	Pensions Act 1990	Part XI
3.	No. 5 of 2006	Social Welfare Law Reform and Pensions Act 2006	Section 43
4.	No. 20 of 2013	Social Welfare and Pensions (Miscellaneous Provisions) Act 2013	Section 33

PART 2 Statutory Instruments