Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

The FSPO has advised that where a complaint is made to it concerning a joint account or joint policy, it must recognise that all parties who own the account or policy have rights, entitlements and potential liabilities arising from that account or policy. The rights, entitlements and potential liabilities of joint owners arise not only from a legal and contractual perspective but also from other legislative and regulatory sources such as data protection legislation. Whether the complaint is resolved by way of a binding mediation settlement agreement between the parties using the confidential dispute resolutions service or is subject of a formal investigation by the FSPO leading to a legally binding decision, the rights and obligations of all joint account or joint policy holders are thereby affected. This approach is in accordance with the statutory obligation placed on the FSPO by section 56(3) of the Act, which prescribes that:

Where the Ombudsman proposes to conduct an investigation into a complaint made under this Part, he or she shall provide the parties, and any other person who, in the opinion of the Ombudsman, might be adversely affected by any decision he or she may make in relation to the complaint, an opportunity to—

(a) make submissions with respect to the conduct the subject of the complaint, and

(b) comment on any allegations contained in the complaint or reference.

Under this section, all owners of the account or policy must consent to investigation of the complaint and processing of personal data by the FSPO. Another consideration worth noting is that joint owners who have not consented to the complaint may hold key information relevant to the investigation of the complaint.

This approach is of particular importance given the views of the Supreme Court in the Zalewski case. The court held a public administrative body, such as the FSPO, which provides a complainant with a route to redress as an alternative to the courts is operating within the confines of the provision of Article 37 of Bunreacht na hÉireann and is administering justice. It is against this constitutional background that the FSPO operates a quasi-judicial function and, therefore, is especially cognisant of the need to adhere to fair procedures. On that basis, I do not propose to accept the amendment.

Fraud is clearly a matter for An Garda Síochána, not for the financial services ombudsman. Financial abuse is to be redefined soon in the Central Bank code of conduct. I accept that when complainants are at the financial services ombudsman, they have gone through the code of conduct, but it will be redefined to assist in situations where there is a joint account before the need arises to go to the financial services ombudsman.

My understanding is the process in the UK is different as the UK financial ombudsman sets out that if the consumer accepts the ombudsman's decision in a specified timeframe, the business has to do what the ombudsman has told it to do. It will be binding on the business. The consumer does not have to accept the ombudsman's decision and a rejected decision will not be binding on the business. That, I am told, is the difference between us and them.

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