An overview of the General Scheme of the Financial Services and Pensions Ombudsman (Amendment) Bill
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The Financial Services and Pensions Ombudsman (“FSPO”) has statutory power to investigate complaints against financial service providers and pension providers under the Financial Services and Pensions Ombudsman Act 2017, as amended (the “2017 Act”).
The General Scheme proposes to make amendments to the 2017 Act, following the Supreme Court decision in Zalewski v Adjudication Officer and the WRC [2021] IESC 24.
Overview of the Zalewski decision
The Supreme Court in Zalewski held that the exercise of powers by Adjudication Officers pursuant to the Workplace Relations Act 2015, as amended (the “2015 Act”), was an administration of justice within the meaning of Article 37 of the Constitution. The Supreme Court held that section 41(13) of the 2015 Act, which requires all hearings before an Adjudication Officer to be held otherwise than in public to be inconsistent with the Constitution. It further held that the absence of a provision for the administration of an oath, or any possibility of punishment for giving false evidence is inconsistent with the Constitution.
The decision in Zalewksi has required other quasi-judicial bodies to look at their processes and procedures to ensure consistency with the constitutional requirements.
Key provisions of the General Scheme
The General Scheme sets out the following proposed key amendments to the 2017 Act:
- A proposed amendment to subsection 2(1) of the 2017 to clarify that the Ombudsman has the statutory power to investigate complaints against a financial service provider, which was regulated at the time of the conduct complained of.
- To ensure that mediation is conducted in private, a proposed amendment to section 58 of the 2017 Act has been made in that respect.
- In relation to the conduct of an investigation under section 56 of the 2017 Act, the proposed amendment allows for the Ombudsman to hold an oral hearing in public, “having consulted with the parties and having considered the nature or circumstances of the complaint and whether it is in the interest of justice to do so.” The 2017 Act currently contains no provision for oral hearings to be held in public.
- The proposed amendment to section 59(1) of the 2017 Act will allow for a Class A fine or imprisonment of up to 3 months , or both, if convicted if a person gives false evidence on oath, whether wilfully or corruptly.
The Bill once enacted, aims to reinforce the statutory basis of the FSPO. It will further safeguard consumer protections particularly for customers of financial service providers who have left the Irish market and also enhance the processes and procedures of the FSPO.
Written by: Clodagh Morrissey and Jessica Murphy