Financial Services and Markets Bill - continued        House of Lords

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  PART XVI
  THE OMBUDSMAN SCHEME
 
The scheme
The scheme and the scheme operator.     220. - (1) This Part provides for a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person.
 
      (2) The scheme is to be administered by a body corporate ("the scheme operator").
 
      (3) The scheme is to be operated under a name chosen by the scheme operator but is referred to in this Act as "the ombudsman scheme".
 
      (4) Schedule 17 makes provision in connection with the ombudsman scheme and the scheme operator.
 
Compulsory jurisdiction.     221. - (1) A complaint which relates to an act or omission of a person ("the respondent") in carrying on an activity to which compulsory jurisdiction rules apply is to be dealt with under the ombudsman scheme if the conditions mentioned in subsection (2) are satisfied.
 
      (2) The conditions are that-
 
 
    (a) the complainant is eligible and wishes to have the complaint dealt with under the scheme;
 
    (b) the respondent was an authorised person at the time of the act or omission to which the complaint relates; and
 
    (c) the act or omission to which the complaint relates occurred at a time when compulsory jurisdiction rules were in force in relation to the activity in question.
      (3) "Compulsory jurisdiction rules" means rules-
 
 
    (a) made by the Authority for the purposes of this section; and
 
    (b) specifying the activities to which they apply.
      (4) Only activities which are regulated activities, or which could be made regulated activities by an order under section 20, may be specified.
 
      (5) Activities may be specified by reference to specified categories (however described).
 
      (6) A complainant is eligible, in relation to the compulsory jurisdiction of the ombudsman scheme, if he falls within a class of person specified in the rules as eligible.
 
      (7) The rules-
 
 
    (a) may include provision for persons other than individuals to be eligible; but
 
    (b) may not provide for authorised persons to be eligible except in specified circumstances or in relation to complaints of a specified kind.
      (8) The jurisdiction of the scheme which results from this section is referred to in this Act as the "compulsory jurisdiction".
 
Voluntary jurisdiction.     222. - (1) A complaint which relates to an act or omission of a person ("the respondent") in carrying on an activity to which voluntary jurisdiction rules apply is to be dealt with under the ombudsman scheme if the conditions mentioned in subsection (2) are satisfied.
 
      (2) The conditions are that-
 
 
    (a) the complainant is eligible and wishes to have the complaint dealt with under the scheme;
 
    (b) at the time of the act or omission to which the complaint relates, the respondent was participating in the scheme;
 
    (c) at the time when the complaint is referred under the scheme, the respondent has not withdrawn from the scheme in accordance with its provisions;
 
    (d) the act or omission to which the complaint relates occurred at a time when voluntary jurisdiction rules were in force in relation to the activity in question; and
 
    (e) the complaint cannot be dealt with under the compulsory jurisdiction.
      (3) "Voluntary jurisdiction rules" means rules-
 
 
    (a) made by the scheme operator for the purposes of this section; and
 
    (b) specifying the activities to which they apply.
      (4) The only activities which may be specified in the rules are activities which are, or could be, specified in compulsory jurisdiction rules.
 
      (5) Activities may be specified by reference to specified categories (however described).
 
      (6) The rules require the Authority's approval.
 
      (7) A complainant is eligible, in relation to the voluntary jurisdiction of the ombudsman scheme, if he falls within a class of person specified in the rules as eligible.
 
      (8) The rules may include provision for persons other than individuals to be eligible.
 
      (9) A person qualifies for participation in the ombudsman scheme if he falls within a class of person specified in the rules in relation to the activity in question.
 
      (10) Provision may be made in the rules for persons other than authorised persons to participate in the ombudsman scheme.
 
      (11) The rules may make different provision in relation to complaints arising from different activities.
 
      (12) The jurisdiction of the scheme which results from this section is referred to in this Act as the "voluntary jurisdiction".
 
      (13) In such circumstances as may be specified in voluntary jurisdiction rules, a complaint-
 
 
    (a) which relates to an act or omission occurring at a time before the rules came into force, and
 
    (b) which could have been dealt with under a scheme which has to any extent been replaced by the voluntary jurisdiction,
       is to be dealt with under the ombudsman scheme even though paragraph (b) or (d) of subsection (2) would otherwise prevent that.
 
      (14) In such circumstances as may be specified in voluntary jurisdiction rules, a complaint is to be dealt with under the ombudsman scheme even though-
 
 
    (a) paragraph (b) or (d) of subsection (2) would otherwise prevent that, and
 
    (b) the complaint is not brought within the scheme as a result of subsection (13),
       but only if the respondent has agreed that complaints of that kind were to be dealt with under the scheme.
 
 
Determination of complaints
Determination under the compulsory jurisdiction.     223. - (1) This section applies only in relation to the compulsory jurisdiction.
 
      (2) A complaint is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case.
 
      (3) When the ombudsman has determined a complaint he must give a written statement of his determination to the respondent and to the complainant.
 
      (4) The statement must-
 
 
    (a) give the ombudsman's reasons for his determination;
 
    (b) be signed by him; and
 
    (c) require the complainant to notify him in writing, before a date specified in the statement, whether he accepts or rejects the determination.
      (5) If the complainant notifies the ombudsman that he accepts the determination, it is binding on the respondent and the complainant and final.
 
      (6) If, by the specified date, the complainant has not notified the ombudsman of his acceptance or rejection of the determination he is to be treated as having rejected it.
 
      (7) The ombudsman must notify the respondent of the outcome.
 
      (8) A copy of the determination on which appears a certificate signed by an ombudsman is evidence (or in Scotland sufficient evidence) that the determination was made under the scheme.
 
      (9) Such a certificate purporting to be signed by an ombudsman is to be taken to have been duly signed unless the contrary is shown.
 
Awards.     224. - (1) This section applies only in relation to the compulsory jurisdiction.
 
      (2) If a complaint which has been dealt with under the scheme is determined in favour of the complainant, the determination may include-
 
 
    (a) an award against the respondent of such amount as the ombudsman considers fair compensation for loss or damage (of a kind falling within subsection (3)) suffered by the complainant ("a money award");
 
    (b) a direction that the respondent take such steps in relation to the complainant as the ombudsman considers just and appropriate (whether or not a court could order those steps to be taken).
      (3) A money award may compensate for any loss or damage-
 
 
    (a) of a kind in respect of which a court would have power to award damages if it were deciding an action for breach of contract;
 
    (b) of a specified kind.
      (4) The Authority may specify the maximum amount which may be regarded as fair compensation for a particular kind of loss or damage specified under subsection (3)(b).
 
      (5) A money award may not exceed the monetary limit; but the ombudsman may, if he considers that fair compensation requires payment of a larger amount, recommend that the respondent pay the complainant the balance.
 
      (6) The monetary limit is such amount as may be specified.
 
      (7) Different amounts may be specified in relation to different kinds of complaint.
 
      (8) A money award-
 
 
    (a) may provide for the amount payable under the award to bear interest at a rate and as from a date specified in the award; and
 
    (b) is enforceable by the complainant in accordance with Part III of Schedule 17.
      (9) Compliance with a direction under subsection (2)(b)-
 
 
    (a) is enforceable by an injunction; or
 
    (b) in Scotland, is enforceable by an order under section 45 of the Court of Session Act 1988.
      (10) Only the complainant may bring proceedings for an injunction or proceedings for an order.
 
      (11) "Specified" means specified in compulsory jurisdiction rules.
 
 
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