Pearse Doherty (Donegal, Sinn Fein) | Oireachtas source

I have an amendment on section 2. Following the pre-legislative scrutiny and discussions with stakeholders, I have decided to propose deleting the section. The original intention - one I still support - is to make sure that the Financial Services Ombudsman is about protecting the small consumer, individual customers and small businesses. It should not be swamped by large cases that are more suited to the commercial court. The issue in my proposal was that the interpretation of it could be to exclude sole traders in charities. That was raised during the pre-legislative scrutiny. Sole traders could be excluded from accessing the services of the Financial Services Ombudsman. That is something that would run counter to my intention. I am glad that we have started a discussion about possibly looking at a two-tier process at some point in the future. However, by deleting the section we would be reverting back to what exists in law at this point in time.

Currently, the definition of a consumer for the purpose of the ombudsman is:

(a) a natural person when not acting in the course of, or in connection with, carrying on a business, or

(b) a person, or group of persons, of a class prescribed by Council regulations;

When we look at the council regulations, we see that in 2005 the council used its powers to expand the definition of a consumer to include a person or group of persons but not an incorporate body with an annual turnover in excess of €3 million. For the avoidance of doubt, a group of persons includes partnerships and other unincorporated bodies, such as clubs, charities and trusts not consisting entirely of bodies corporate. The definition also includes incorporated bodies with an annual turnover of €3 million or less in the financial year prior to the year in which the complaint is made to the ombudsman, provided that such a body is not a member of a group of companies having a combined turnover greater than the said €3 million. There was a further clarification in 2014.

The original section in this Bill arose as a result of FLAC highlighting some court cases that judges suggested should have been directed towards the commercial court instead of the Financial Services Ombudsman. That said, given the pre-legislative scrutiny, I want to delete the section in the Bill, which would mean reverting back to the existing definition of a consumer as laid down in the original Act and as prescribed by the regulations of the ombudsman's council.