Robert Troy (Longford-Westmeath, Fianna Fail)
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174. To ask the Minister for Finance if he will clarify who in the State is responsible for assessing the performance of the Financial Services and Pensions Ombudsman with respect to Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution (ADR) for consumer disputes (the ADR Directive). [41298/23]

Michael McGrath (Cork South Central, Fianna Fail)
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Directive 2013/11/EU of the European Parliament and of the Council (“The ADR Directive”) concerns alternative dispute resolution (ADR) for consumer disputes and amends Regulation (EC) No 2006/2004 and Directive 2009/22/EC. Article 55 of the ADR Directive provides that:

“In order to ensure that ADR entities function properly and effectively, they should be closely monitored. For that purpose, each Member States should designate a competent authority or competent authorities which should perform that function. ...”

In Ireland, S.I. No. 343/2015 designates the Competition and Consumer Protection Commission (“CCPC”) as the competent authority for this purpose.

Robert Troy (Longford-Westmeath, Fianna Fail)
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175. To ask the Minister for Finance if he can clarify which Oireachtas Committee is responsible with respect to the workings of the FSPO and the protection of consumers who have purchased financial products in the State (details supplied). [41299/23]

Michael McGrath (Cork South Central, Fianna Fail)
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The Financial Services and Pensions Ombudsman is accountable to the Public Accounts Committee and to other Oireachtas Committees under Sections 22 and 23 of the FSPO Act. In recent years, the FSPO has appeared regularly before the Committee on Public Petitions and the Ombudsmen.

Robert Troy (Longford-Westmeath, Fianna Fail)
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176. To ask the Minister for Finance if he will clarify who is responsible for ensuring that the changes introduced by section 51(2) of the Financial Services and Pensions Ombudsman Act 2017, extending the statute of limitations beyond six years, are implemented in the manner anticipated by the Houses of the Oireachtas when making those changes; and who is charged with ensuring that the EU Community Principle of Effectiveness is being met by Ireland and that consumers are not precluded from rights granted to them under European law. [41300/23]

Michael McGrath (Cork South Central, Fianna Fail)
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In 2017, the Government merged the offices of the Financial Services Ombudsman Bureau and the Office of the Pensions Ombudsman, to form the Financial Services and Pensions Ombudsman. The Financial Services and Pensions Ombudsman Act 2017 established the Office of the Financial Services and Pensions Ombudsman, and the FSPO became operational from 1 January 2018.

The Financial Services and Pensions Ombudsman is accountable to the Public Accounts Committee under Section 22 of the Act, and to other Oireachtas Committees under Section 23 of the FSPO Act. In recent years, the FSPO has appeared regularly before the Committee on Public Petitions and the Ombudsmen.

One of the functions of the FSPO Council under Section 40 of the FSPO Act 2017 is to keep under review the efficiency and effectiveness of the Ombudsman and to advise myself as Minister, either at my request or on its own initiative, on any matter relevant to the performance of the functions of the Ombudsman.

While I have no role in the investigation of complaints brought to the FSPO under the Financial Services and Pensions Ombudsman Act 2017, I note that there is a Service Level, Oversight and Performance Delivery Agreement in place between the Department of Finance and the Office of the Financial Services and Pensions Ombudsman.

This is in accordance with the Code of Practice for the Governance of State Bodies (2016) and sets out the arrangements for oversight, monitoring and reporting. It also sets out the FSPO’s commitments regarding the operational roles, responsibilities, outputs and outcomes.

The jurisdiction of the FSPO is set out in the FSPO Act and the FSPO may only investigate complaints that come within its jurisdiction. These jurisdictional assessments are a matter for the Ombudsman, who subject to the FSPO Act, is independent in the performance of his or her functions.

The principle of effective judicial protection is a general principle of Community law and the decisions of the Ombudsman in this regard are, of course, subject to Judicial Review in the Courts.

Robert Troy (Longford-Westmeath, Fianna Fail)
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177. To ask the Minister for Finance if he will confirm that the Financial Services and Pensions Ombudsman, FSPO, rejected or refused to investigate 2,296 consumer complaints in 2022, which represents 49% of complaints, i.e., complaints that did not go to investigation in any form; and if he is surprised at the level of rejections and refusals given, that it is also the responsibility of the FSPO to educate the consumer as to what complaints can be processed. [41301/23]

Michael McGrath (Cork South Central, Fianna Fail)
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When a complaint is received by the FSPO, the Registry and Assessment team of the Customer Operations and Information Management (COIM) directorate reviews and assesses it. This initial assessment provides an opportunity for the FSPO to determine if the complainant has provided all the necessary eligibility information to progress the complaint through our complaint resolution processes and to ensure the provider has been given the opportunity to resolve the complaint first.

In many cases, this preliminary work allows the complaint to close, if the complainant is subsequently satisfied with the provider’s resolution of the complaint.

The jurisdiction of the FSPO is set out in the FSPO Act and the FSPO may only investigate complaints that come within its jurisdiction.

Not all complaints are eligible for investigation by the FSPO and so the assessment of the complaint’s eligibility takes place at the earliest possible stage. This may include determining whether the conduct complained of falls within the statutory time limits as set out in the FSPO Act, checking that consent has been provided by all of the account or policy owners, or the FSPO may need to check if a financial service provider is regulated.

This early assessment service has enabled the FSPO to use its resources in the most efficient manner. More importantly, this service has enabled the FSPO to provide a greatly improved customer experience, ensuring the complainant is informed early on in the process if their complaint falls outside the FSPO’s remit.

In some circumstances, the complaint may need to be referred to the Legal Services team for a detailed legal assessment to determine whether a complaint falls in the FSPO’s jurisdiction.

During 2022, the FSPO closed 2,090 complaints within its Customer Operations and Information Management Department. 206 complaints were closed within its Legal Services Department. The sum of these two numbers may be the 2,296 complaints to which the Deputy refers.

Many of these complaints were closed because they were withdrawn by the complainant, often due to a resolution having been achieved with the provider after the complaint was made to the FSPO.

In other complaints, the FSPO concluded that the complaint did not come within its statutory jurisdiction. The FSPO cannot investigate complaints that do not come within its jurisdiction under the FSPO Act.

The FSPO has details available on its website with respect to the types of complaints that it can investigate and the statutory jurisdiction of the FSPO, including:

• Informational Videos and Leaflets on its services in the “Our Services” section.
• Details with respect to some jurisdictional issues in the “Legal References” section.
• Annual Published Overviews of Complaints, which include case studies.

Robert Troy (Longford-Westmeath, Fianna Fail)
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178. To ask the Minister for Finance of the 2,296 complaints rejected/refused by the FSPO, how many of these complainants were actually advised/directed to the FSPO in 2022, by the financial institution processing the complaint in question. [41302/23]

Michael McGrath (Cork South Central, Fianna Fail)
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I have been informed by the FSPO that Section 50 of the FSPO Actsets out that the Ombudsman shall not investigate or make a decision on a complaint where the internal dispute resolution procedures required under Section 54 of the FSPO Act have not been complied with.

Provision 10.9 (d) of the Central Bank of Ireland’s Consumer Protection Code 2012, provides that a regulated entity inform the consumer (that has made a complaint) that they can refer the matter to the relevant Ombudsman, and must provide the consumer with the contact details of such Ombudsman, where a complaint has been received and remains unresolved after 40 working days, or where a final response letter has been issued by the provider.

The FSPO does not collect information with respect to whether or not a complainant was referred to it by a financial services provider.

Robert Troy (Longford-Westmeath, Fianna Fail)
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179. To ask the Minister for Finance the reason that the FSPO, when reporting under S.I. No. 343/2015, does not report the required, under EU law, statistic "(e) the average time taken to resolve disputes", and instead uses a fabricated statistic, "closed", which is a term not recognised or defined (details supplied). [41303/23]

Robert Troy (Longford-Westmeath, Fianna Fail)
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181. To ask the Minister for Finance if he will explain the term "closed", which is most commonly utilised by the FSPO when assessing its complaint handling performance, as it is not a term used or defined by the European Commission when assessing the performance of Alternative Dispute Resolution entities in Member States. [41305/23]

Michael McGrath (Cork South Central, Fianna Fail)
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I propose to take Questions Nos. 179 and 181 together.

I have been informed by the FSPO that it reports to the CCPC on all complaints that it receives. The term “resolved” is not defined in the legislation to which the Deputy refers.

Complaints are closed within the FSPO for a number of reasons, including that they are outside of the FSPO’s jurisdiction, because the complainant has chosen to withdraw the complaint (sometimes following an agreement with the provider mediated by the FSPO, sometimes on receipt of a clarification, or sometimes following agreement outside of the FSPO’s processes), or a legally binding decision is issued.

In each of these circumstances the FSPO regards the complaint as having been resolved with respect to its processes.

Robert Troy (Longford-Westmeath, Fianna Fail)
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180. To ask the Minister for Finance if, given that the ADR Directive recommends that "A properly functioning ADR entity should conclude online and offline dispute resolution proceedings expeditiously within a timeframe of 90 calendar days...", and that the FSPO has the option to refuse complex cases or redirect them to the Courts, he is not surprised by this statistic of 934 days versus the EU-recommended 90 days. [41304/23]

Michael McGrath (Cork South Central, Fianna Fail)
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The statistic quoted by the Deputy is drawn from when a complaint was first received. The large majority of all complaints (over 80%) resolved in the FSPO are resolved within 12 months, mainly during the Registration, Assessment and Dispute Resolution (mediation) processes.

However a minority of complaints are referred for a formal jurisdictional review, or for formal investigation and adjudication. I am informed by the FSPO that these formal processes can take significantly longer.

The formal investigation and adjudication process is a detailed, fair and impartial process carried out in accordance with fair procedures. The FSPO calls for certain questions to be answered by a respondent provider and requests certain relevant documents and audio evidence.

The FSPO’s established procedures, for the formal investigation of complaints, ensure that both the complainant and the provider receive a copy of all information submitted by both parties and held on file, and they are given every reasonable opportunity to offer comments and observations on the contents of such evidence.

The parties to a complaint may wish to continue to make submissions over a period of time, which will impact on the overall time taken to complete the process; when the parties believe that they have additional information to offer regarding the merits of the complaint, this process is facilitated by the FSPO.

When all of the evidence has been gathered, and the parties’ submissions are concluded, the FSPO considers the evidence to determine whether any material conflicts of fact can be resolved by reference to the documentary or audio evidence available or whether, alternatively, an oral hearing is required. Thereafter, the FSPO issues a Preliminary Decision.

The parties may make submissions in relation to the Preliminary Decision. Such submissions are shared with the other party who may respond to them, which may give rise to several submissions being exchanged. All submissions and evidence received are then considered prior to the legally binding decision being issued to the parties.

Once a legally binding decision is issued, that decision is binding upon the parties, subject only to a statutory appeal to the High Court, within a period of 35 days, pursuant to Section 64 of the FSPO Act. The financial service provider or pension provider must implement any direction made by the Ombudsman in the legally binding decision.

Robert Troy (Longford-Westmeath, Fianna Fail)
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182. To ask the Minister for Finance if he will explain how, when reporting to the EU for the year 2021, the FSPO reported that 4,279 complaints were "accepted for handling" with only 130 identified as "refused" or "rejected" against its own published "Overview of Complaints 2021", which showed that only 2,676 complaints were handled through investigation or mediation. [41306/23]

Michael McGrath (Cork South Central, Fianna Fail)
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The FSPO Alternative Dispute Resolution (ADR) Annual Activity Report 2021 reported that the FSPO “received 4,658 complaints and successfully closed 5,010 complaints including 130 (2.6%) found to be ineligible”.

The FSPO’s Overview of Complaints 2021 reported that “A total of 4,658 complaints were received by the office in 2021. When 130 complaints later found to be ineligible were deducted, 4,528 complaints were received”.

Complaints were considered ineligible mainly because they were related to businesses that were not financial service providers or were made against providers that operated outside Ireland. Where appropriate, the FSPO will refer a complainant to the appropriate Alternative Dispute Resolution body in another country.

The FSPO Overview of Complaints 2021 breaks down the number of complaints closed (5,010) further into complaints closed in each department of the FSPO. 2,676 complaints were closed across Mediation and Investigation Services, with the remainder being closed in Customer Operations and Information Management, and Legal Services.

This information is also provided in the FSPO’s Alternative Dispute Resolution Annual Activity Report 2021:

“Of the 5,010 complaints closed in 2021, 2,169 (43.3%) were closed at an early stage in Customer Operations and Information Management, 1,820 (36.3%) were closed by way of mediation in Dispute Resolution Services, 856 (17.1%) were closed in Investigation Services and 165 (3.3%) were closed in Legal Services.”

Robert Troy (Longford-Westmeath, Fianna Fail)
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183. To ask the Minister for Finance the reason that the FSPO, when rejecting/refusing consumer complaints, makes no reference to relevant European Law, such as the Unfair Terms in consumer contracts Directive (UCTD) when raising opinions on its jurisdiction to investigate. [41307/23]

Michael McGrath (Cork South Central, Fianna Fail)
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I have been informed by the FSPO that when a complaint is received by the FSPO, the Registry and Assessment team of the Customer Operations and Information Management (COIM) directorate reviews and assesses it.

This initial assessment provides an opportunity for the FSPO to determine if the complainant has provided all the necessary eligibility information to progress the complaint through the complaint resolution processes and to ensure the provider has been given the opportunity to resolve the complaint first.

Not all complaints are eligible for investigation by the FSPO and so, the assessment of the complaint’s eligibility takes place at the earliest possible stage.

This may include determining whether the conduct complained of falls within the statutory time limits as set out in the FSPO Act, checking that consent has been provided by all of the account or policy owners, or the FSPO may need to check if a financial service provider is regulated.

In some circumstances, the complaint may need to be referred to the Legal Services team for a detailed legal assessment to determine whether a complaint falls in the FSPO’s jurisdiction.

In other complaints, the FSPO concludes that the complaint does not come within its statutory jurisdiction. The FSPO cannot investigate complaints that do not come within its jurisdiction under the FSPO Act.

As detailed above, where an issue arises, which requires a more detailed legal assessment, the matter is referred to the Legal Services team for a formal jurisdictional assessment, to determine whether the complaint in its entirety, or elements of the complaint, can proceed to investigation.

The FSPO makes every effort to assist the parties in understanding the extent and limits of the Ombudsman’s statutory jurisdiction, which is set out in the FSPO Act, being mindful that the legislation contains some provisions which are complex.

These jurisdictional assessments are a matter for the Ombudsman, who subject to the FSPO Act, is independent in the performance of his or her functions. The decisions of the Ombudsman in this regard are, of course, subject to Judicial Review in the Courts.

It is important to note that a formal jurisdictional assessment examines only the jurisdictional aspects arising based on the information provided and not the merits of the complaint itself.