SCHEDULES
C11C12 SCHEDULE 17 The Ombudsman Scheme
Sch. 17 applied (30.4.2011) by The Electronic Money Regulations 2011 (S.I. 2011/99), reg. 76(2) (with reg. 3)
Part III The Compulsory Jurisdiction
Introduction
12
This Part of this Schedule applies only in relation to the compulsory jurisdiction.
F5FCA'sF11... rules
Word in Sch. 17 para. 13 cross-heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 11 para. 24(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
Word in Sch. 17 para. 13 heading omitted (7.4.2015) by virtue of The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (S.I. 2015/542), reg. 1(2), Sch. 7 para. 1(3)(c) (with reg. 7)
C1C213
1
a
the complainant has referred it under the ombudsman scheme before the applicable time limit (determined in accordance with the rules) has expired F13, or
b
in the case of a complaint other than a relevant complaint within the meaning of section 404B, the respondent agrees that the complaint should be entertained despite the complainant having referred it under the ombudsman scheme after the applicable time limit has expired.
2
The rules may provide that an ombudsman may extend that time limit in specified circumstances.
3
The F3FCA may make rules providing that a complaint is not to be entertained (except in specified circumstances) if the complainant has not previously communicated its substance to the respondent and given him a reasonable opportunity to deal with it.
4
The F3FCA may make rules requiring an authorised person F1, F2an electronic money issuer within the meaning of the Electronic Money Regulations 2011 or a payment service provider within the meaning of the Payment Services Regulations 2009, who may become subject to the compulsory jurisdiction as a respondent to establish such procedures as the F3FCA considers appropriate for the resolution of complaints which—
a
may be referred to the scheme; and
The scheme operator’s rules
C3C4C514
1
The scheme operator must make rules, to be known as “scheme rules”, which are to set out the procedure for reference of complaints and for their investigation, consideration and determination by an ombudsman.
2
Scheme rules may, among other things—
a
specify matters which are to be taken into account in determining whether an act or omission was fair and reasonable;
b
provide that a complaint may, in specified circumstances, be dismissed without consideration of its merits;
c
provide for the reference of a complaint, in specified circumstances and with the consent of the complainant, to another body with a view to its being determined by that body instead of by an ombudsman;
d
make provision as to the evidence which may be required or admitted, the extent to which it should be oral or written and the consequences of a person’s failure to produce any information or document which he has been required (under section 231 or otherwise) to produce;
e
allow an ombudsman to fix time limits for any aspect of the proceedings and to extend a time limit;
f
provide for certain things in relation to the reference, investigation or consideration (but not determination) of a complaint to be done by a member of the scheme operator’s staff instead of by an ombudsman;
F7fa
allow the correction of any clerical mistake in the written statement of a determination made by an ombudsman;
fb
provide that any irregularity arising from a failure to comply with any provisions of the scheme rules does not of itself render a determination void;
g
make different provision in relation to different kinds of complaint.
3
The circumstances specified under sub-paragraph (2)(b) may include the following—
a
the ombudsman considers the complaint frivolous or vexatious;
b
legal proceedings have been brought concerning the subject-matter of the complaint and the ombudsman considers that the complaint is best dealt with in those proceedings; or
c
the ombudsman is satisfied that there are other compelling reasons why it is inappropriate for the complaint to be dealt with under the ombudsman scheme.
F143A
The scheme operator must exercise the function of making scheme rules in a way which is consistent with enabling the scheme operator to qualify as an ADR entity and to meet the quality requirements in Chapter II of the ADR Directive.
C6C74
If the scheme operator proposes to make any scheme rules it must publish a draft of the proposed rules in the way appearing to it to be best calculated to bring them to the attention of persons appearing to it to be likely to be affected.
C6C75
The draft must be accompanied by a statement that representations about the proposals may be made to the scheme operator within a time specified in the statement.
C76
Before making the proposed scheme rules, the scheme operator must have regard to any representations made to it under sub-paragraph (5).
7
The consent of the F8FCA is required before any scheme rules may be made.
Fees
C8C915
1
Scheme rules may require a respondent to pay to the scheme operator such fees as may be specified in the rules.
2
The rules may, among other things—
a
provide for the scheme operator to reduce or waive a fee in a particular case;
b
set different fees for different stages of the proceedings on a complaint;
c
provide for fees to be refunded in specified circumstances;
d
make different provision for different kinds of complaint.
Enforcement of money awards
C1016
A money award, including interest, which has been registered in accordance with scheme rules may—
a
b
be enforced in Northern Ireland as a money judgment under the M1Judgments Enforcement (Northern Ireland) Order 1981;
c
be enforced in Scotland by the sheriff, as if it were a judgment or order of the sheriff and whether or not the sheriff could himself have granted such judgment or order.
Sch. 17 applied (1.5.2009 for certain purposes and 1.11.2009 otherwise) by The Payment Services Regulations 2009 (S.I. 2009/209), regs. 1(2), 125 (with reg. 3)