On 16 November 2015, Articles 7, 8 and 10 to 19 of the Financial Services Ombudsman (Jersey) Law 2014 (the Law) will come into force, and the office of the Financial Services Ombudsman (the OFSO) will open for the investigation of complaints from individuals in respect of financial services provided in Jersey.
The Ombudsman will be the final arbiter in resolving such complaints, with the aim to return the complainant to the position they were in prior to any issue having occurred at the forefront of any investigation.
WHO IS ELIGIBLE TO USE THE SERVICE?
Pursuant to the terms of Article 8 of the Law, complaints can be made by certain persons including individuals, small businesses (defined as "microenterprises"), charities, trusts, foundations or indeed any other person that the Minister for Economic Development may specify from time to time following a recommendation by the OFSO.
Whilst a complaint must relate to an act by another person in the course of that person providing relevant financial services business in Jersey, it should be noted that the complainant need not be located in Jersey either at the time of the act or at the time of lodging the complaint.
Lodging a complaint with the OFSO should offer a more accessible alternative to court proceedings for affected individuals who otherwise may not have had the necessary means, confidence or experience to pursue a complaint. In particular, Article 13(2)(b) of the Law makes it clear that, where possible, the OFSO should seek to avoid both formality in proceedings and the need for either party to seek legal advice.
POWERS OF THE OMBUDSMAN
The OFSO will have the power to investigate any "relevant financial services business", as such term is defined in Article 9 of the Law. Interestingly, this could also include any relevant "ancillary business", including businesses that provide introductions or referrals to service providers.
In practical terms, provided the complaint relates to an issue that occurred after 1 January 2010, and provided the complainer has given the respondent a reasonable opportunity to remedy the situation before lodging an official complaint with the OFSO (up to a maximum of three months after the issue was flagged by the complainer to the respondent), then the OFSO will be able to act.
It should be noted that, pursuant to the terms of Article 15 of the Law, any decisions made by the OFSO will be based on what is fair and reasonable in the circumstances and so codes of practice, best practice and industry standards will also be taken into account.
Potential complainants should be reassured, however, that the OFSO will also have the discretion to grant a tangible "money award" to compensate the complainant for any financial loss, distress or inconvenience suffered.
Any such award would be paid by the respondent (up to a statutory maximum of £150,000), so it is clear that there will be a real degree of accountability on the part of the financial services provider in question.
As discussed, the overall aim of the OFSO will be to return the complainant to the position they were in prior to any issue having occurred. The provision of an accessible inquisitorial and arbitration service should level the playing field for consumers without the means to otherwise challenge established financial services providers in the market.
It remains to be seen how many claims will actually result in a financial award being made – time will tell.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.