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30 June 2017
Two separate bills making their way through the legislative process propose to extend the limitation period for complaints to the Financial Services Ombudsman (FSO).
The first is the Central Bank and Financial Services Authority of Ireland (Amendment) Bill 2014, a private member's bill which was published in September 2014 and passed the second stage in the Seanad on June 21 2017. The amendment bill proposes to amend the Central Bank and Financial Services Authority of Ireland Act 2004 to strengthen the functions of the FSO and amend the limitation period for bringing complaints to the FSO.
The second and more comprehensive bill is the Financial Services and Pensions Ombudsman Bill 2017, which was published on May 10 2017. One of the bill's primary objectives is to amalgamate the offices of the FSO and the Pensions Ombudsman (PO) into one entity: the Office of the Financial Services and Pensions Ombudsman. Of particular significance for regulated financial service providers, the bill proposes to amend the limitation period for bringing complaints to the office in certain circumstances.
The FSO has no jurisdiction to investigate complaints made by consumers where the conduct complained of occurred more than six years before the complaint is made. Both bills propose an extension of the limitation period for consumers' complaints in respect of long-term financial services. However, the definition of a 'long-term financial service' differs between the bills.
Under the amendment bill, a 'long-term financial service' is defined as a service where its actual or intended duration is five years and one month or more.
Under the FSO/PO bill, a 'long-term financial service' has a similar definition but has an important exclusion. Here, long-term financial services are services where the actual or intended duration of the service is five years and one month or more. However, this definition excludes any services which are:
This difference is potentially significant, as if the amendment bill is enacted as presently drafted, it could result in a broader range of financial services being subject to the proposed longer limitation period for complaints to the FSO.
For other short-term financial services, the six-year limitation period is unchanged.
Under both bills, the proposed new limitation period for complaints in relation to all pension products and for long-term financial services is either:
The bills also proposed that the office will have discretion to extend this new limitation period. The discretion may be applied where it appears to the office that there are "reasonable grounds for requiring a longer period and that it would be just and equitable in all the circumstances to do so". This is a significant proposal, as the FSO has not been afforded discretion to extend the limitation period.
Significantly, the extension to the limitation period for long-term financial services will have retrospective effect. If the bills are enacted as drafted, a consumer will be entitled to avail of the longer limitation period even if the conduct complained of occurred before the commencement of the act. The retrospective effect of the bills is not unlimited, however, with both bills specifying that the new time limits for long-term financial services will apply only to complaints made to the office about conduct that occurred during or after 2002. The service to which the complaint relates must also have not expired or have been terminated more than six years before the date of complaint.
As matters stand, it is possible that the bills could be enacted consecutively.
The amendment bill is slightly further ahead in the legislative approval process, having passed the second stage in the Seanad and is intended to be considered by a committee in the coming weeks. As such, it could be enacted into law in the coming months.
The FSO/PO bill has been designated as priority legislation by the minister for finance and is progressing to the next stage before the end of June 2017, at which point it will be subject to further scrutiny and debate.
Assuming that the amendment bill will be enacted into law, it will be for a short period only, as it will be repealed by the subsequent enactment of the FSO/PO bill. In light of this, there is a consensus within the government that there should be consistency between the bills on the issue of limitation periods to minimise consumers' confusion and disruption. However, it remains to be seen how the difference in the definition of 'long-term financial service' will be managed.
Given the potentially far-reaching consequences for regulated financial service providers and their exposure to consumer complaints, the progression of the bills through the Oireachtas will be closely monitored.
For further information on this topic please contact Sharon Daly or Aoife McCluskey at Matheson by telephone (+353 1 232 2000) or email (firstname.lastname@example.org or email@example.com). The Matheson website can be accessed at www.matheson.com.
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