Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

We have carried out a good deal of analysis on this matter. We are satisfied that the legislation that was passed last year is sufficient. I will read the note and we can then discuss it through the Chair. The current legislation permits the ombudsman to investigate complaints about long-term financial services that occurred before 2002 in particular circumstances. Section 51(2)(3) provides for a time limit of, "such longer period as the ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable in all circumstances to so extend the period".

This gives the Ombudsman the discretion to extend the time period. I would stress there are conditions attaching to the exercise of this discretion. There must be reasonable grounds and they must be just and equitable to both the consumer and the financial service provider. It is a matter for the Ombudsman to make this decision and the Ombudsman is independent. The follow-on from that is important because it is something on which we are all like-minded. We want the Ombudsman to have the authority to deal with these matters. The Ombudsman has the authority. It is a matter for his discretion whether to use that authority.

I have a note that I want to put on the record. The Ombudsman will always consider whether the exercise of this discretion is appropriate when a long-term financial service is not being investigated due to time limits. The exercise of this discretion does not have to be requested by the complainant. I understand from the conversation between Department officials and the Ombudsman that there were only a small number of cases. I did not get the actual number of cases or whether the requester has requested him to exercise his discretion. To date, the Ombudsman has not exercised this discretion.

We are satisfied that the legislation is solid and that it is allowable for the Ombudsman to investigate but, as of now, he has not sanctioned any of those requests that have come to him. I do not have the actual number to go beyond the 2002 period. We have done our bit. The members, as Members of the Oireachtas, have done their bit in regard to the legislation. We are satisfied it is sufficiently strong. It then moves to the Ombudsman for him to exercise his discretion to facilitate an investigation to a pre-2002 long-term financial services product.

As Deputy Michael McGrath has just arrived, I will read the note again. Section 51 of the 2007 Act, the Act that we all put a good chunk of time into dealing with last year to get over the line, provides for a departure from a rigid six-year rule because the complainant has three years from the date he or she became aware or ought to have become aware of the cause of action to make a complaint. While there is a general time limit of 2002, in regard to the conduct being complained of there is a provision for the possibility of a longer period extending to before 2002 where the Ombudsman decides it would be reasonable to allow a longer period and would be just and equitable in the circumstances. It is a matter for the Ombudsman, therefore, to facilitate an investigation prior to the 2002 time schedule that is part of section 51 of last year's Act. It is a matter for the discretion of the Ombudsman.