Part

COAF Complaints against the FSA

Chapter

Transitional complaints scheme

Printed on: 07/11/2024

Rulebook at: 06/10/2009

COAF 2

Transitional complaints scheme

COAF 2.1

Introduction

  • 01/12/2004

COAF 2.1.1

handbook-guidance
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
(2) against PIA, IMRO or SFA in respect of matters arising before the commencement day.
  • 03/09/2001

COAF 2.1.2

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
(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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
The transitional provisions in GEN do not apply to the transitional complaints scheme.
  • 03/09/2001

COAF 2.1.11

handbook-guidance
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

handbook-guidance
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 eligible 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.
  • 01/11/2007

COAF 2.3

Coverage and scope of the scheme

  • 01/12/2004

COAF 2.3.1

handbook-guidance
(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

handbook-guidance
Each of the following is excluded from the transitional complaints scheme:
(1) complaints about the relationship of the FSA, PIA, IMRO or SFA with its employees;
(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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
The FSA will not make any charge to complainants for the operation of the transitional complaints scheme.
  • 06/10/2006

COAF 2.4

Procedure

  • 01/12/2004

The FSA's initial response to complaints

COAF 2.4.1

handbook-guidance
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

handbook-guidance
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

handbook-guidance
(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.
(2) Other persons complaining orally will be asked to confirm their complaint 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

handbook-guidance
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 2.4.2A

handbook-guidance
In carrying out the investigation, the suitably senior member of staff will undertake a paper-based review of the complaint, by considering any documents supplied initially by the complainant, and any relevant FSA documents, or following communications from the FSA under COAF 2.4.1B G. The investigation will not involve an interview of the complainant.
  • 06/10/2006

COAF 2.4.3

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

Time limit for the referral of a matter to the Complaints Commissioner

COAF 2.4.6A

handbook-guidance
(1) When the FSA writes to a complainant with its final report of its investigation, or explaining that it will not investigate a complaint under the complaints scheme under COAF 2.4.1A G, the FSA will inform the complainant that, if he is dissatisfied, he must refer the FSA's decision to the Complaints Commissioner within three months of the date of that letter.
(2) If the Complaints Commissioner receives a referral of a matter outside the three months time limit, it will be for the Complaints Commissioner to decide whether there is a good reason why the matter should be considered out of time.
  • 06/10/2006

When will the Complaints Commissioner investigate a complaint that the FSA has not investigated?

COAF 2.4.7

handbook-guidance
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

handbook-guidance
(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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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
(4) any independent tribunal charged with responsibility for hearing a final appeal from the regulatory decisions of PIA, IMRO or SFA;
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

handbook-guidance
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

COAF 2.4.17A

handbook-guidance
The Complaints Commissioner expects his communications with complainants and the FSA during the course of an investigation to remain strictly confidential. Where a complainant breaches this requirement the Complaints Commissioner may, after having considered all the circumstances including any explanation from the complainant, decide to bring the investigation to an end without having to report under COAF 2.4.18 G. Where the FSA breaches this requirement, the Complaints Commissioner will take account of this when formulating his conclusions and the breach will be recorded in the Complaints Commissioner's final report.
  • 06/08/2007

Reports on investigations

COAF 2.4.18

handbook-guidance
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 2.4.18A

handbook-guidance
(1) The Complaints Commissioner will send a preliminary report, with a time limit within which the FSA and the complainant may indicate in writing any disagreement with or comments on the preliminary report.
(2) At the end of this time limit, the Complaints Commissioner will produce a final report after taking into account, at his discretion, any disagreements or comments notified to him. The final report will be the conclusion of the investigation procedure set out in COAF 2.4 and the complaint will then be regarded as closed by the Complaints Commissioner and the FSA.
  • 06/10/2006

COAF 2.4.19

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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

handbook-guidance
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