COAF 1
Complaints against the FSA
COAF 1.1
Introduction
- 01/12/2004
COAF 1.1.1
See Notes
(1)
Paragraph
7 of Schedule 1 to the Act requires
the FSA to
maintain a complaints scheme for
the investigation of complaints arising in connection with the exercise of,
or failure to exercise, any of its functions under the Act (other than its legislative functions).
(2) The FSA is
required to appoint an independent person as Complaints Commissioner to be responsible
for the conduct of investigations in accordance with the complaints scheme.
- 03/09/2001
COAF 1.1.2
See Notes
The complaints
scheme provides that there may be two distinct stages for each
complaint. In the first stage, the FSA itself
will investigate any complaint that meets the requirements of the complaints scheme (see COAF 1.4 (Coverage and scope of the
scheme)) and take whatever action to resolve the matter it thinks appropriate.
A complaint will normally only proceed to the second stage if the complainant
is dissatisfied with the FSA's determination
of his complaint or how it has been handled. This second stage consists of
investigation of the complaint by the Complaints
Commissioner, followed, wherever he finds for the complainant,
by his recommendation to the FSA on
the form of redress, if any, that is appropriate in the circumstances.
- 01/10/2004
COAF 1.1.3
See Notes
(1) The complaints
scheme is made by the FSA in
accordance with its obligations under paragraphs 7 and 8 of Schedule 1 to
the Act.
(2) Where the Act requires the FSA to make a particular arrangement as part
of the complaints scheme,
this is recognised in the following text by the use of the word "must". In
contrast, where a provision in the complaints
scheme states that someone "will" do something, this denotes
that the FSA is
committing itself or the Complaints
Commissioner to some action which, though not specifically required
by the Act,
is nevertheless viewed as necessary to give effect to the intentions of the Act.
(3) Each provision in the complaints scheme is, consistent with the
style and format of the Handbook,
identified by the letter "G". It nevertheless constitutes a definitive statement
of the complaints scheme which
the FSA is
required to maintain.
- 01/10/2004
COAF 1.1.4
See Notes
The complaints
scheme has effect from 3 September 2001.
- 03/09/2001
COAF 1.1.5
See Notes
In this complaints scheme, "complaint" means any
expression of dissatisfaction about the manner in which the FSA has carried out, or failed to carry out,
its functions under the Act other
than its legislative functions.
- 01/10/2004
COAF 1.1.6
See Notes
The transitional provisions in GEN do not apply to the complaints scheme.
- 03/09/2001
COAF 1.1.7
See Notes
Further details of the practical operation
of the complaints scheme are
available from the office of the FSA's
Company Secretary, who may be contacted at 25 The North Colonnade, Canary
Wharf, London E14 5HS, Tel No. 020 7066 9870 or by e-mail at complaints@fsa.gov.uk.
- 03/09/2001
COAF 1.2
Application
- 01/12/2004
COAF 1.2.1
See Notes
Anyone directly affected by the way in
which the FSA has
carried out its functions, or anyone acting directly on such a person's behalf, may bring
a complaint under the complaints
scheme, provided the complaint meets the requirements of the complaints scheme (see COAF 1.4 (Coverage and scope of the
scheme)). This includes firms and issuers of listed securities and
any customer or
prospective customer,
whether an individual or a body
corporate, or
market counterparty
. Groups, such as
trade associations, may bring a complaint under the complaints scheme where they themselves have
been directly affected by the FSA's actions
or inactions. Groups may also bring complaints on behalf of one or more named
members that have been directly affected by the FSA's actions or inactions, but cannot bring
complaints on behalf of their members generally if it is not apparent that
all of the group's members have been directly affected.
COAF 1.2.2
See Notes
The complaints
scheme applies in relation to complaints made about the way
in which the FSA has
carried out, or failed to carry out, its functions under the Act. The FSA is also applying the main elements of
the complaints scheme in
respect of complaints against the FSA arising
in connection with the exercise of its functions under previous legislation
and in respect of complaints made against PIA, IMRO and SFA. Those arrangements
are set out in the transitional
complaints scheme.
COAF 1.3
The Complaints Commissioner
- 01/12/2004
COAF 1.3.1
See Notes
(1) The FSA must
appoint an individual, subject to the approval of the Treasury, as Complaints Commissioner to
carry out the functions conferred on him by the complaints scheme.
(2) In appointing the Complaints Commissioner, the FSA is advised by an appointment
panel comprising the Deputy Chairman of the FSA, the Chairmen of the Practitioner and
Consumer Panels established under sections 9 and 10 of the Act and another person who is independent
of the FSA.
- 01/10/2004
COAF 1.3.2
See Notes
(1) The Complaints
Commissioner is appointed for a period of three years and may
be dismissed from office only for reason of becoming:
(a) incapacitated by physical or mental illness;
or
(b) otherwise unfit to discharge the functions
of his office;
and subject
in either event to the approval of the Treasury.(2) No person who has attained the age of
70 years is eligible to be or to remain a Complaints Commissioner.
(3) The Complaints
Commissioner must not be an employee of the FSA and is required to act independently
of, and without favouring, the FSA.
COAF 1.3.3
See Notes
The FSA will
provide the Complaints
Commissioner with sufficient financial and other resources to
allow him to fulfil his role under the complaints
scheme properly.
- 01/10/2004
COAF 1.4
Coverage and scope of the scheme
- 01/12/2004
COAF 1.4.1
See Notes
(1) The complaints
scheme provides a procedure for enquiring into and, if necessary,
addressing allegations of misconduct by the FSA arising from the way in which it has
carried out or failed to carry out its functions. The complaints scheme covers complaints about
the way in which the FSA has
acted or omitted to act, including complaints alleging:
(a) mistakes and lack of care;
(b) unreasonable delay;
(c) unprofessional behaviour;
(d) bias; and
(e) lack of integrity.
(2)
[deleted]
(3) To be eligible to make a complaint under
the complaints scheme,
a person (see COAF
1.2.1 G) must be seeking a remedy
(which for this purpose may include an apology, see COAF
1.5.5 G) in respect of some inconvenience, distress
or loss which the person has
suffered as a result of being directly affected by the FSA's actions or inaction.
- 01/10/2004
Exclusions from the scheme
COAF 1.4.2
See Notes
Each of the following is excluded from
the complaints scheme:
(1) complaints about the FSA's relationship with its employees;
(2) complaints connected with contractual
or commercial disputes involving the FSA and
not connected to its functions under the Act;
(3) complaints in relation to the performance
of the FSA's legislative
functions under the Act (including
making rules and
issuing codes and general guidance);
and
(4) complaints about
the actions, or inactions, of the Financial
Ombudsman Service or the Financial
Services Compensation Scheme.
- 01/10/2004
Circumstances under which the FSA will not investigate
COAF 1.4.2A
See Notes
The FSA will not investigate
a complaint under the complaints
scheme which it reasonably considers amounts to no more than
dissatisfaction with the FSA's general
policies or with the exercise of, or failure to exercise, a discretion where
no unreasonable, unprofessional or other misconduct is alleged.
- 01/10/2004
Complaints that are more appropriately dealt with in another way
COAF 1.4.3
See Notes
The FSA will
not investigate a complaint under the complaints
scheme which it reasonably considers could have been, or would
be, more appropriately dealt with in another way (for example by referring
the matter to the Tribunal or
by the institution of other legal proceedings).
- 01/10/2004
Investigations that may be deferred
COAF 1.4.4
See Notes
A complaint which is connected with,
or which arises from, any form of continuing action by the FSA will not normally be investigated by
either the FSA or
the Complaints Commissioner until
the complainant has exhausted the procedures and remedies under the Act which are relevant
to that action. An investigation may be commenced before the completion of
those procedures if, in the exceptional circumstances of the case, it would
not be reasonable to expect the complainant to await the conclusion of the FSA's action.
- 01/10/2004
Time limits
COAF 1.4.6
See Notes
Complaints should be made within 12 months
of the date on which the complainant first became aware of the circumstances
giving rise to the complaint. Complaints made later than this will be investigated
under the complaints scheme only
if the complainant can show reasonable grounds for the delay.
- 03/09/2001
Cost
COAF 1.4.7
See Notes
The FSA will
not make any charge to complainants in relation tothe complaints scheme.
COAF 1.5
Procedure
- 01/12/2004
Telling complainants how the Complaints Scheme works
COAF 1.5.1
See Notes
The FSA will,
in response to each complaint made in a durable
medium, send to the complainant a leaflet, in a durable medium, explaining
how the complaints scheme works,
including details of his right to refer the complaint to the Complaints Commissioner if
he is dissatisfied with the way in which the FSA has dealt with it (see COAF
1.5.6 G).
- 03/09/2001
The FSA's initial analysis of complaints
COAF 1.5.1A
See Notes
On
receiving a complaint, the FSA will
determine whether it can be dealt with under the complaints scheme and whether it can be dealt
with under the 'fast track' complaints handling procedure (see COAF
1.5.1D G).
- 01/10/2004
COAF 1.5.1B
See Notes
Where
the FSA does
not investigate a complaint under the complaints
scheme, either because the FSA considers
it to be outside of the scope of the complaints
scheme or for another reason described in COAF (see COAF 1.2 (Application) and COAF 1.4 (Coverage and scope of the scheme)), the FSA will write to the complainant explaining
why this is the case and informing him of his right to ask the Complaints Commissioner to
review the decision. The FSA will
do this within four weeks of receiving the complaint or, where COAF
1.5.1G G (1) applies, within four weeks of the complainant
notifying the FSA that
he is dissatisfied with the way his complaint has been handled.
- 01/10/2004
Asking for information in writing
COAF 1.5.1C
See Notes
(1)
A complaint
made orally by a consumer will
be investigated by the FSA.
However, if the FSA requires
clarification from the complainant as to the nature or scope of the complaint,
the FSA may
either invite the complainant to confirm or clarify the details of the complaint,
or it may communicate its understanding of the nature or scope of the complaint
to the consumer,
in a durable medium.
(3) The FSA may ask the complainant
to explain what remedy he is seeking or to provide any factual information
that supports his complaint in a durable
medium.
(4) The FSA may not be able to
progress its investigation of a complaint until it has received the information
described in (1) to (3), as it needs to understand from the complainant what
the complaint is about if it is to investigate it properly.
- 01/10/2004
'Fast track' complaints handling procedure
COAF 1.5.1D
See Notes
(1)
The FSA will use a 'fast track'
procedure for investigating a complaint where it believes the complaint:
(a) is of low impact
from the perspective of both the complainant and the FSA (for example, it is about a minor administrative
mistake); and
(b) can be dealt
with within five business
days of the FSA first
receiving communication of the complaint, in a way that the FSA believes remedies any adverse effect
on the complainant.
(2) If, after initiating
the 'fast track' complaints handling procedure for a particular complaint,
the FSA then
considers that the complaint does not meet the criteria in (1), it will then
deal with it as described at COAF
1.5.1H G.
- 01/10/2004
COAF 1.5.1E
See Notes
The
'fast track' procedure will involve the complaint being dealt with under the complaints scheme by the
area of the FSA most
closely concerned with the matter complained of.
- 01/10/2004
COAF 1.5.1F
See Notes
Handling of 'fast track' complaints referred to the Company Secretariat
COAF 1.5.1G
See Notes
(1)
If
the complainant refers his complaint to the FSA'sCompany Secretariat, the FSA will acknowledge this
complaint within five business
days of receiving this referral.
(2) The FSA will review the complaint,
at this point, to make sure that it falls within the scope of the complaints scheme. If
the FSA considers
that the complaint is outside the complaints
scheme, it will follow the procedures in COAF
1.5.1B G. Otherwise, it will handle the complaint in
accordance with COAF
1.5.2 G.
'Non-fast track' complaints: the FSA's initial response
COAF 1.5.1H
See Notes
Where
a complaint is not suitable for the 'fast track' complaints handling procedure,
the FSA will
acknowledge it within five business
days of receipt and will deal with it in accordance with COAF
1.5.2 G.
- 01/10/2004
Stage 1: Investigation of complaints by the FSA
COAF 1.5.2
See Notes
The FSA will
arrange for an initial investigation by its own staff of any complaint which
is a complaint under the terms of the complaints
scheme and which does not come within the provisions of COAF
1.4.1 G to COAF
1.4.6 G. That investigation will be carried out by a suitably senior member
of staff who has not previously been involved in the matter complained of,
with a view to resolving the matter to the complainant's satisfaction.
- 01/10/2004
COAF 1.5.3
See Notes
The FSA will
seek to resolve the complaint as quickly as possible. The FSA will either complete the investigation
of a complaint within four weeks, or it will write to the complainant within
this time setting out a reasonable timescale within which it plans to deal
with the complaint. If the FSA has
not already confirmed whether or not the complaint will be admitted to the complaints scheme, the FSA will include this
information.
- 01/10/2004
What are the possible outcomes for the complainant?
COAF 1.5.4
See Notes
If the FSA concludes that a complaint is well founded,
it will tell the complainant what it proposes to do to remedy the matters
complained of.
- 01/10/2004
COAF 1.5.5
See Notes
Remedying a well founded complaint may
include offering the complainant an apology, taking steps to rectify an error
or, if appropriate, the offer of a compensatory payment on an ex-gratia basis.
If the FSA decides
not to uphold a complaint, it will give its reasons for doing so to the complainant,
and will inform the complainant of his right to ask the Complaints Commissioner to review the FSA's decision.
- 01/10/2004
COAF 1.5.6
See Notes
Complainants who are dissatisfied with
the outcome of an investigation, or who are dissatisfied with the FSA's progress in investigating
a complaint, may refer the matter to the Complaints
Commissioner, who will consider whether or not to carry out
his own investigation.
- 01/10/2004
When will the Complaints Commissioner investigate a complaint that the FSA has not investigated?
COAF 1.5.7
See Notes
When the FSA has told a complainant in writing that
it will not investigate his complaint, as provided for by COAF
1.5.1A G, it will also notify the Complaints Commissioner of this fact. The Complaints Commissioner will
not review the FSA's decision
unless the complainant requests this. Where the complainant does request this,
the Complaints Commissioner will,
after considering any representations from the complainant and the FSA, then decide whether
the complaint falls within the scope of the complaints scheme and, if so, whether to
conduct an investigation.
- 01/10/2004
COAF 1.5.8
See Notes
(1) If a complaint
is referred or notified to the Complaints
Commissioner before the FSA has
had the opportunity to conduct or complete an investigation, the Complaints Commissioner will
consider whether it would be desirable to allow the FSA that opportunity before conducting his
own investigation.
(2) Paragraph (1)
also applies to a complaint received by the Complaints Commissioner when he is conducting
a Stage 2 investigation into another complaint from the same complainant.
- 01/10/2004
COAF 1.5.9
See Notes
The Complaints
Commissioner will not investigate any complaint which is outside
the scope of the complaints
scheme, but the final decision on whether a particular case
is so excluded rests with the Complaints
Commissioner.
- 01/10/2004
Stage 2: Conduct of investigations by the Complaints Commissioner
COAF 1.5.10
See Notes
The Complaints
Commissioner may conduct an investigation in whatever manner
he thinks appropriate including obtaining, at the FSA's expense, such external resources as
may be reasonable. In considering what is appropriate, the Complaints Commissioner will take into account
the need to ensure that complaints are dealt with fairly, quickly and cost
effectively.
- 01/10/2004
COAF 1.5.10A
See Notes
In
performing his functions in accordance with the complaints scheme, the Complaints Commissioner must at all times
act independently of the FSA.
- 01/10/2004
COAF 1.5.11
See Notes
The Complaints
Commissioner may appoint a person to conduct the whole or any
part of an investigation on his behalf but subject to his direction. That
person must not be an officer or employee of the FSA.
- 03/09/2001
COAF 1.5.12
See Notes
The FSA will
afford the Complaints Commissioner all
reasonable co-operation, including giving access to its staff and information.
The FSA may,
in affording the Complaints
Commissioner access to information, have regard to the need
to maintain the confidentiality of certain kinds of information. This would
include, for example, taking appropriate steps to ensure that the identity
of an informant is not disclosed, or maintaining the confidentiality of information
given to the FSA under
international arrangements. In any case where the FSA decides that it should withhold information,
it will inform the Commissioner of the nature of that information and its
reasons for withholding it.
- 03/09/2001
COAF 1.5.13
See Notes
The FSA is
not, because of any investigation being conducted by the Complaints Commissioner, prevented from continuing
to take such action, or such further action, as it considers appropriate in
relation to any matter which is related to a complaint or a complainant.
- 03/09/2001
COAF 1.5.14
See Notes
The Complaints
Commissioner will ensure that, before he concludes an investigation
and makes a report, any person who
may be the subject of criticism in it is given notice of, and the opportunity
to respond to, that criticism.
- 03/09/2001
COAF 1.5.15
See Notes
In the investigation of a complaint by
either the FSA or
the Complaints Commissioner,
any finding of fact of:
(1) a court of competent jurisdiction (whether
in the United Kingdom or
elsewhere); or
(2) the Tribunal;
or
(3) any other tribunal established by legislative
authority (whether in the United
Kingdom or elsewhere); or
which has not
been set aside on appeal or otherwise, shall be conclusive evidence of the
facts so found, and any decision of that court or tribunal shall be conclusive.- 03/09/2001
COAF 1.5.16
See Notes
Any findings of fact or decisions of
courts or tribunals not covered by COAF
1.5.15 G will
carry such weight as the FSA or
the Complaints Commissioner considers
appropriate in the circumstances.
- 03/09/2001
COAF 1.5.17
See Notes
In deciding whether a complaint is well
founded and, if so, in deciding what steps he should recommend the FSA to take, the Complaints Commissioner will
have regard to the FSA's statutory
objectives and the considerations set out in sections 2(3) or 73(1) of the Act.
- 03/09/2001
COAF 1.5.18
See Notes
The Complaints
Commissioner may, if he thinks it appropriate, recommend that
the FSA remedy
the matters complained of, as described in COAF
1.5.5 G.
- 01/10/2004
Reports on investigations
COAF 1.5.19
See Notes
The Complaints
Commissioner must report to the FSA and to the complainant on the results
of his investigation, giving reasons for any recommendations he makes.
- 03/09/2001
COAF 1.5.20
See Notes
The Complaints
Commissioner will ensure that his report, apart from identifying
the FSA,
does not mention the name of any other person or contain particulars which
are likely to identify any other person unless:
(1) in the opinion of the Complaints Commissioner the omission of such
particulars would be likely to impair the effectiveness of the report; or
(2) after taking into account the public
interest, as well as the interests of the complainant and the interests of
other persons, the Complaints
Commissioner considers it necessary to mention the name of that
person or to include in the report those particulars (see also COAF
1.5.14 G).
- 03/09/2001
COAF 1.5.21
See Notes
The Complaints
Commissioner may publish his report (or any part of it) if he
considers that the report (or any part of it) ought to be brought to the attention
of the public.
- 03/09/2001
COAF 1.5.22
See Notes
The FSA must,
in any case where the Complaints
Commissioner has reported that a complaint is well founded,
or where he has criticised the FSA in
his report, inform the Complaints
Commissioner and the complainant of the steps which it proposes
to take by way of response.
- 03/09/2001
COAF 1.5.23
See Notes
The FSA must,
if required by the Complaints
Commissioner to do so, publish the whole or a specified part
of its response.
- 03/09/2001
Responding to the Complaints Commissioner
COAF 1.5.24
See Notes
In deciding how it should respond to
a report from the Complaints
Commissioner, the FSA will,
as well as having regard to its statutory objectives and the considerations
set out in section 2(3) or 73(1) of the Act,
normally take into account the following:
(1) the gravity of the misconduct which the Complaints Commissioner has
identified and its consequences for the complainant;
(2) the nature of the FSA's relationship with the complainant and
the extent to which the complainant has been adversely affected in the course
of his direct dealings with the FSA;
(3) whether what has gone wrong is at the
operational or administrative level;
(4) the impact of the cost of compensatory
payments on firms,
issuers of listed securities and, indirectly, consumers.
- 01/10/2004
COAF 1.6
General
- 01/12/2004
Confidentiality
COAF 1.6.1
See Notes
The Complaints
Commissioner must observe any statutory restrictions applicable
to him relating to the disclosure of confidential information.
- 03/09/2001
Reports
COAF 1.6.2
See Notes
The Complaints
Commissioner will each year submit to the FSA Board, for publication:
(1) a report on
investigations concluded by him during the 12-month period ending 31 March.
The report may include information concerning trends in the subject matter
of complaints and on the general lessons which he considers the FSA should learn; and
(2) information
on his activities during that year, including such matters as the approach
he adopted to handling different types of complaint and the extent to which
he has met his service standards for dealing with complaints. (The Complaints Commissioner will
set these standards himself.)
- 01/10/2004
Export chapter as
COAF 2
Transitional complaints scheme
COAF 2.1
Introduction
- 01/12/2004
COAF 2.1.1
See Notes
In accordance with the power conferred
by The Financial Services and Markets Act 2000 (Transitional Provisions) (Ombudsman
Scheme) Order 2001 ("the Order"), the FSA has
made arrangements for the investigation of complaints:
(1) arising in connection with the exercise
before the commencement
day of any functions conferred on the FSA by or under any enactment (other than
the Act),
or the failure to exercise any such function before commencement; or
- 03/09/2001
COAF 2.1.2
See Notes
The arrangements made by the FSA are set out in the
following provisions of this transitional
complaints scheme.
- 03/09/2001
COAF 2.1.3
See Notes
The Order requires the FSA to ensure that the transitional complaints scheme complies with paragraph
7 of Schedule 1 to the Act and
provides that the FSA may
apply such provisions of paragraph 8 of Schedule 1 as it considers to be appropriate.
The FSA has
decided to apply most of the provisions of paragraph 8 so that, with suitable
modification to take account of the different persons involved, the transitional complaints scheme will
operate in substantially the same way as the complaints scheme which, going forward, provides
a scheme for investigating complaints against the FSA in respect of its functions under the Act. One difference is
that the transitional
complaints scheme does not make provision for compensatory payments
to be made to complainants.
- 03/09/2001
COAF 2.1.4
See Notes
The FSA is
required to appoint an independent person as Complaints Commissioner to be responsible
for the conduct of investigations in accordance with the complaints scheme, and that person is also
responsible for the conduct of investigations under this transitional complaints scheme.
- 03/09/2001
COAF 2.1.5
See Notes
(1) Where the FSA is required to make a particular arrangement
as part of the transitional
complaints scheme, this is recognised in the following text
by use of the word "must". In contrast, where a provision in the transitional complaints scheme states
that someone "will" do something, this denotes that the FSA is committing itself or the Complaints Commissioner to
some action which, though not specifically required, is nevertheless viewed
as necessary to give effect to the intentions of the Act.
(2) Each provision in the transitional complaints scheme is, consistent
with the style and format of the Handbook,
identified by the letter "G". It nevertheless constitutes a definitive statement
of the transitional complaints
scheme which the FSA is
maintaining.
- 01/10/2004
COAF 2.1.6
See Notes
References in this transitional complaints scheme to the FSA's functions are references
to its statutory functions (other than its legislative functions) arising
in connection with the Financial Services Act 1986 and the Banking Act 1987
and functions conferred on the FSA by
or under other enactments (other than the Act). References to the functions of PIA, IMRO or SFA are
references to their functions arising in connection with the Financial Services
Act 1986 (other than their functions of making rules and issuing guidance).
- 03/09/2001
COAF 2.1.7
See Notes
For the purposes of the transitional complaints scheme,
the FSA is
responsible for receiving, investigating and responding to complaints made
against PIA, IMRO or SFA.
- 03/09/2001
COAF 2.1.8
See Notes
The transitional
complaints scheme has effect from 3 September 2001 and is concerned
with complaints against the FSA, PIA, IMRO and SFA made on or after that date and with
complaints made before that date but only if they had not, by 3 September,
been referred to an independent person for review.
- 03/09/2001
COAF 2.1.9
See Notes
In this transitional complaints scheme:
(1) "complaint" means any expression of
dissatisfaction about the manner in which the FSA has carried out, or failed to carry out,
its statutory functions (other than its legislative functions) and about the
manner in which PIA, IMRO or SFA have carried out their functions arising
in connection with the Financial Services Act 1986 (other than their functions
of making rules and issuing guidance);
(2)
firm includes
any person who is or was a person authorised under Chapter III of Part I of
the Financial Services Act 1986; and
(3) "Financial Services Tribunal" means
the Tribunal established under section 96 of the Financial Services Act 1986.
- 01/10/2004
COAF 2.1.10
See Notes
The transitional provisions in GEN do not apply to the transitional complaints scheme.
- 03/09/2001
COAF 2.1.11
See Notes
Further details of the practical operation
of the transitional complaints
scheme are available from the office of the FSA's Company Secretary who may be contacted
at 25 The North Colonnade, Canary Wharf, London E14 5HS, Tel No. 020 7066
9870 or by e-mail at complaints@fsa.gov.uk.
- 03/09/2001
COAF 2.2
Application
- 01/12/2004
COAF 2.2.1
See Notes
Anyone directly affected by the way in
which the FSA, PIA, IMRO or SFA has
carried out their functions, or anyone acting directly on such a person's behalf, may bring
a complaint under the transitional
complaints scheme, provided the complaint meets the requirements
of the transitional complaints
scheme (see COAF 2.3 (Coverage
and scope of the scheme)). This includes firms and issuers of listed securities and
any customer or
prospective customer,
whether an individual or a body
corporate, or
market counterparty
. Groups, such as
trade associations, may bring a complaint under the transitional complaints scheme where they
themselves have been directly affected by the FSA's actions or inactions. Groups may also
bring complaints on behalf of one or more named members that have been directly
affected by the FSA's actions
or inactions, but cannot bring complaints on behalf of their members generally
if it is not apparent that all of the group's members have been affected.
COAF 2.3
Coverage and scope of the scheme
- 01/12/2004
COAF 2.3.1
See Notes
(1) The transitional
complaints scheme provides a procedure for enquiring into and,
if necessary, addressing allegations of misconduct by the FSA, PIA, IMRO and SFA arising from the
way in which they have carried out or failed to carry out their functions.
The transitional complaints
scheme covers complaints about the way in which the FSA, PIA, IMRO or SFA have acted or omitted
to act, including complaints alleging:
(a) mistakes and lack of care;
(b) unreasonable delay;
(c) unprofessional behaviour;
(d) bias; and
(e) lack of integrity.
(2)
[deleted]
(3) The transitional
complaints scheme does not cover complaints arising in connection
with the functions which the FSA was
authorised to carry out by the Contracting Out (Functions in Relation to Insurance)
Order 1998.
(4) To be eligible to make a complaint under
the transitional complaints
scheme, a person (see COAF
2.2.1 G) must be seeking a remedy
(which for this purpose may include an apology, see COAF
2.4.5 G) in respect of some inconvenience, distress
or loss which the person has
suffered as a result of being directly affected by the actions or inaction
of the FSA, PIA, IMRO or SFA.
- 01/10/2004
Exclusions from the scheme
COAF 2.3.2
See Notes
Each of the following is excluded from
the transitional complaints
scheme:
(2) complaints connected with contractual
or commercial disputes involving the FSA, PIA, IMRO or SFA and
not connected to their regulatory functions; and
(3) complaints in relation to the performance
of the FSA's legislative
functions under the Financial Services Act 1986 or the Banking Act 1987, or
the functions of PIA, IMRO or SFA in relation to their functions of making
rules or issuing guidance;
(4) complaints which, before 3 September
2001, have, following an investigation by the executive of the FSA, PIA, IMRO or SFA, been referred for
further investigation by a person who is independent of the FSA or of any such organisation; and
(5) complaints about
the actions, or inactions, of the Financial
Ombudsman Service, the Financial
Services Compensation Scheme, the Investors' Compensation Scheme
or of any independent complaints investigation body established by PIA, IMRO or SFA.
- 01/10/2004
Circumstances under which the FSA will not investigate
COAF 2.3.2A
See Notes
The FSA will not investigate
a complaint under the transitional
complaints scheme which it reasonably considers amounts to no
more than dissatisfaction with the general policies of the FSA or of PIA, IMRO or SFA or with the exercise
of a discretion by any such body where no unreasonable, unprofessional or
other misconduct is alleged.
- 01/10/2004
Complaints that are more appropriately dealt with in another way
COAF 2.3.3
See Notes
The FSA will
not investigate a complaint under the transitional
complaints scheme which it reasonably considers could have been,
or would be, more appropriately dealt with in another way (for example by
referring the matter to the Financial Services Tribunal or to the committees,
tribunals and appeal bodies or to any successor tribunal of PIA, IMRO or SFA or by the institution
of other legal proceedings).
- 01/10/2004
Investigations that may be deferred
COAF 2.3.4
See Notes
A complaint which is connected with,
or which arises from, any form of continuing action by the FSA, PIA, IMRO or SFA will not normally be investigated by
either the FSA or
the Complaints Commissioner until
the complainant has exhausted the procedures and remedies under the Financial
Services Act 1986 or, as appropriate, under the rules of PIA, IMRO or SFA which are relevant
to that action. An investigation may be commenced before the completion of
those procedures if, in the exceptional circumstances of the case, it would
not be reasonable to expect the complainant to await the conclusion of such
action.
- 01/10/2004
Time limits
COAF 2.3.6
See Notes
Complaints should be made within 12 months
of the date on which the complainant first became aware of the circumstances
giving rise to the complaint. Complaints made later than this will be investigated
under the transitional
complaints scheme only if the complainant can show reasonable
grounds for the delay.
- 03/09/2001
Cost
COAF 2.3.7
See Notes
The FSA will
not make any charge to complainants in relation to the transitional complaints scheme.
COAF 2.4
Procedure
- 01/12/2004
The FSA's initial response to complaints
COAF 2.4.1
See Notes
The FSA will
acknowledge a complaint within five business
days of receipt and will deal with it in accordance with COAF
2.4.2 G-COAF
2.4.4 G. Where the complaint is in a durable medium, the FSA will send each complainant a leaflet,
in a durable medium,
explaining how the transitional
complaints scheme works, including details of his right to refer
the complaint to the Complaints
Commissioner if he is dissatisfied with the way in which the FSA has dealt with it
(see COAF
2.4.6 G).
- 01/10/2004
COAF 2.4.1A
See Notes
Where
the FSA does
not investigate a complaint under the transitional
complaints scheme , either because the FSA considers it to be outside of the scope
of the complaints scheme or
for another reason described in COAF (see COAF 2.2 (Application) and COAF 2.3 (Coverage and scope of the
scheme)), the FSA will
write to the complainant explaining why this is the case and informing him
of his right to ask the Complaints
Commissioner to review the decision. The FSA will do this within four weeks of receiving
the complaint.
- 03/09/2001
Putting complaints in writing
COAF 2.4.1B
See Notes
(1)
A complaint
made orally by a consumer will
be investigated by the FSA.
However, if the FSA requires
further clarification from the complainant as to the nature or scope of the
complaint, the FSA may
either invite the complainant to confirm or clarify the details of the complaint,
or it may communicate its understanding of the nature or scope of the complaint
to the consumer,
in a durable medium.
(3) The FSA may ask the complainant
to explain what remedy he is seeking or to provide any factual information
that supports his complaint in a durable
medium.
(4) The FSA may not be able to
progress its investigation of a complaint until it has received the information
described in (1) to (3), as it needs to understand from the complainant what
the complaint is about if it is to investigate it properly.
- 01/10/2004
Stage 1: Investigation of complaints by the FSA
COAF 2.4.2
See Notes
The FSA will
arrange for an initial investigation by its own staff of any complaint which
is a complaint under the terms of the transitional
complaints scheme and which does not come within the provisions
of COAF
2.3.1 G to COAF
2.3.6 G. That investigation will be carried out by a
suitably senior member of staff who has not previously been involved in the
matter complained of, with a view to resolving the matter to the complainant's
satisfaction.
- 01/10/2004
COAF 2.4.3
See Notes
The FSA will
seek to resolve the complaint as quickly as possible. The FSA will either complete the investigation
of a complaint within four weeks, or it will write to the complainant within
this time setting out a reasonable timescale within which it plans to deal
with the complaint. If the FSA has
not already confirmed whether or not the complaint will be admitted to the complaints scheme, the FSA will include this
information.
- 01/10/2004
What are the possible outcomes for the complainant?
COAF 2.4.4
See Notes
If the FSA concludes that a complaint is well founded
it will tell the complainant what it proposes to do to remedy the matters
complained of.
- 01/10/2004
COAF 2.4.5
See Notes
Remedying a well-founded complaint may
include offering the complainant an apology and taking steps to rectify an
error. If the FSA decides
not to uphold a complaint, it will give its reasons for doing so to the complainant,
and will inform the complainant of his right to ask the Complaints Commissioner to review the FSA's decision.
- 01/10/2004
COAF 2.4.6
See Notes
Complainants who are dissatisfied with
the outcome of an investigation, or who are dissatisfied with the FSA's progress in investigating
a complaint, may refer the matter to the Complaints
Commissioner, who will consider whether or not to carry out
his own investigation.
- 01/10/2004
When will the Complaints Commissioner investigate a complaint that the FSA has not investigated?
COAF 2.4.7
See Notes
When the FSA has told a complainant in writing that
it will investigate his complaint, as provided for by COAF
2.4.1B G, it will also notify the Complaints Commissioner of this fact. The Complaints Commissioner will
not review the FSA's decision
unless the complainant requests this. Where the complainant does request this,
the Commissioner will, after considering any representations from the complainant
and the FSA,
then decide whether the complaint falls within the scope of the transitional complaints scheme and,
if so, whether to conduct an investigation.
- 01/10/2004
COAF 2.4.8
See Notes
(1) If a complaint
is referred or notified to the Complaints
Commissioner before the FSA has
had the opportunity to conduct or complete an investigation, the Complaints Commissioner will
consider whether it would be desirable to allow the FSA that opportunity before conducting his
own investigation;
(2) Paragraph (1)
also applies to a complaint received by the Complaints Commissioner when he is conducting
a Stage 2 investigation into another complaint by the same complainant.
- 01/10/2004
COAF 2.4.9
See Notes
The Complaints
Commissioner will not investigate any complaint which is outside
the scope of the transitional
complaints scheme, but the final decision on whether a particular
case is so excluded rests with the Complaints
Commissioner.
- 03/09/2001
Stage 2: Conduct of investigations by the Complaints Commissioner
COAF 2.4.10
See Notes
The Complaints
Commissioner may conduct an investigation in whatever manner
he thinks appropriate including obtaining, at the FSA's expense, such external resources as
may be reasonable. In considering what is appropriate, the Complaints Commissioner will take into account
the need to ensure that complaints are dealt with fairly, quickly and cost
effectively.
- 01/10/2004
COAF 2.4.10A
See Notes
In
performing his functions in accordance with the transitional complaints scheme , the Complaints Commissioner must
at all times act independently of the FSA, PIA, IMRO and SFA.
- 01/10/2004
COAF 2.4.11
See Notes
The Complaints
Commissioner may appoint a person to conduct the whole or any
part of an investigation on his behalf but subject to his direction. That
person must not be an officer or employee of the FSA, PIA, IMRO or SFA.
- 03/09/2001
COAF 2.4.12
See Notes
The FSA will
afford the Complaints Commissioner all
reasonable co-operation including giving access to its staff and information.
The FSA may,
in affording the Complaints
Commissioner access to information, have regard to the need
to maintain the confidentiality of certain kinds of information. This would
include, for example, taking appropriate steps to ensure that the identity
of an informant is not disclosed or maintaining the confidentiality of information
given to the FSA under
international arrangements. In any case where the FSA decides that it should withhold information
it will inform the Complaints
Commissioner of the nature of that information and its reasons
for withholding it.
- 03/09/2001
COAF 2.4.13
See Notes
The FSA, PIA, IMRO and SFA are not, by reason of any investigation
being conducted by the Complaints
Commissioner, prevented from continuing to take such action,
or such further action, as they consider appropriate in relation to any matter
which is related to a complaint or a complainant.
- 03/09/2001
COAF 2.4.14
See Notes
The Complaints
Commissioner will ensure that, before he concludes an investigation
and makes a report, any person who may be the subject of criticism in it is
given notice of, and the opportunity to respond to, that criticism.
- 03/09/2001
COAF 2.4.15
See Notes
Upon PIA, IMRO or SFA ceasing to have any
further regulatory functions, the Complaints
Commissioner may discharge his obligation to give notice of
any potential criticism of them by giving such notice to, and inviting representations
from, the FSA.
- 03/09/2001
COAF 2.4.16
See Notes
In the investigation of a complaint by
either the FSA or
the Complaints Commissioner,
any finding of fact of:
(1) a court of competent jurisdiction (whether
in the United Kingdom or
elsewhere); or
(2) the Financial Services Tribunal; or
(3) any other tribunal established by legislative
authority (whether in the United
Kingdom or elsewhere); or
which has not
been set aside on appeal or otherwise, shall be conclusive evidence of the
facts so found and any decision of that court or tribunal shall be conclusive.- 03/09/2001
COAF 2.4.17
See Notes
Any findings of fact or decisions of
courts or tribunals not covered by COAF
2.4.16 G will
carry such weight as the FSA or
the Complaints Commissioner considers
appropriate in the circumstances.
- 03/09/2001
Reports on investigations
COAF 2.4.18
See Notes
The Complaints
Commissioner must report to the FSA and to the complainant on the results
of his investigation, giving reasons for any recommendations he makes.
- 03/09/2001
COAF 2.4.19
See Notes
The Complaints
Commissioner will ensure that his report, apart from identifying
the FSA, PIA, IMRO or SFA,
does not mention the name of any other person or contain particulars which
are likely to identify any other person unless:
(1) in the opinion of the Complaints Commissioner the omission of such
particulars would be likely to impair the effectiveness of the report; or
(2) after taking into account the public
interest, as well as the interests of the complainant, and the interests of
other persons, the Complaints
Commissioner considers it necessary to mention the name of that
person or to include in the report those particulars (see also COAF
2.4.14 G).
- 03/09/2001
COAF 2.4.20
See Notes
The Complaints
Commissioner may publish his report (or any part of it) if he
considers that the report (or any part of it) ought to be brought to the attention
of the public.
- 03/09/2001
COAF 2.4.21
See Notes
The Complaints
Commissioner may, if he thinks it appropriate, recommend that
the FSA remedy
the matters of complaint, but any such remedy shall not include a recommendation
that a compensatory payment be made.
- 03/09/2001
Responding to the Complaints Commissioner
COAF 2.4.22
See Notes
The FSA must,
in any case where the Complaints
Commissioner has reported that a complaint is well founded or
where he has criticised the FSA, PIA, IMRO or SFA in
his report, inform the Complaints
Commissioner and the complainant of the steps which it proposes
to take by way of response.
- 01/10/2004
COAF 2.4.23
See Notes
The FSA must,
if required by the Complaints
Commissioner to do so, publish the whole or a specified part
of its response.
- 03/09/2001
COAF 2.5
General
- 01/12/2004
Confidentiality
COAF 2.5.1
See Notes
The Complaints
Commissioner must observe any statutory restrictions applicable
to him relating to the disclosure of confidential information.
- 03/09/2001
Reports
COAF 2.5.2
See Notes
The Complaints
Commissioner will each year submit to the FSA Board, for publication:
(1) a report on
investigations concluded by him during the 12-month period ending 31 March.
The report may include information concerning trends in the subject matter
of complaints and on the general lessons which he considers the FSA should learn; and
(2) information
on his activities during that year, including such matters as the approach
he adopted to handling different types of complaint and the extent to which
he has met his service standards for dealing with complaints. (The Complaints Commissioner will
set these standards himself.)
- 01/10/2004
Transitional Provisions and Schedules
COAF TP 1
Transitional Provisions
COAF TP 1.2
| (1) | (2) Material provision to which transitional provision applies | (3) | (4) Transitional provision | (5) Transitional provision: dates in force | (6) Handbook provision: coming into force |
| 1 | Every provision in COAF | G | The FSA and the Complaints Commissioner will continue to treat complaints received before 1 October 2004 in accordance with COAF as in force before amendment by the Complaints Against the FSA Scheme (Amendment) Instrument 2004. | From 1 October 2004 for eighteen months | 3 September 2001 |
- 01/12/2004
COAF Sch 1
Record keeping requirements
- 01/12/2004
COAF Sch 1.1
See Notes
| There are no record keeping requirements in COAF. |
- 01/12/2004
COAF Sch 2
Notification requirements
- 01/12/2004
COAF Sch 2.1
See Notes
| There are no notification requirements in COAF. |
- 01/12/2004
COAF Sch 3
Fees and other required payments
- 01/12/2004
COAF Sch 3.1
See Notes
| There are no requirements for fees or other payments in COAF. |
- 01/12/2004
COAF Sch 4
Powers exercised
- 01/12/2004
COAF Sch 4.1
See Notes
| The following powers and related provisions in or under the Act have been exercised by the FSA to make the Complaints against the FSA Scheme: | |
| Paragraphs 7 (Arrangements for the investigation of complaints) and 8 (Investigation of complaints) of Schedule 1 (The Financial Services Authority) to the Act | |
| Article 2(2) (Appointed days) of the Financial Services and Markets Act 2000 (Commencement No. 4 and Transitional Provisions) Order 2001 SI 2001/2364) | |
| Article 18 (Transitional complaints against the Authority etc.) of the Financial Services and Markets Act 2000 (Transitional Provisions) (Ombudsman Scheme and Complaints Scheme) Order 2001 (SI 2001/2326) | |
COAF Sch 5
Rights of action for damages
- 01/12/2004
COAF Sch 6
Rules that can be waived
- 01/12/2004