I move amendment No. 1: In page 3, to delete lines 17 to 20 and substitute the following: “(a) in subsection (1)— (i) in the definition of “financial service provider”, by the insertion of the following paragraphs after paragraph (g): “(ga) a person who, before the commencement of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015, engaged in any of the activities referred to in subparagraphs (i) to (iii) of paragraph (a) of the definition of ‘credit servicing’ in section 28(1) of the Central Bank Act 1997 and does not otherwise fall within paragraph (gb); (gb) a person who, before the commencement of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2018, engaged in any of the activities referred to in subparagraphs (i) to (iii) of paragraph (a) of the definition of ‘credit servicing’ in section 28(1) of the Central Bank Act 1997 and does not otherwise fall within paragraph (ga);”, and (ii) by the insertion of the following definition: “ ‘Credit Reviewer’ has the meaning given to it by the Guidelines issued under section 210(1) of the National Asset Management Agency Act 2009 (S.I. No. 127 of 2010);”,”. This amendment amends section 2 of the Bill, which provides for an amendment to the underlying section 2 of the Financial Services and Pensions Ombudsman Act 2017. There are two parts to the amendment. The substantive amendment is to the definition of the financial service provider as set out in the 2017 Act. The definition of "financial service provider" is the list of financial entities in respect of which a complainant may submit a complaint to the Financial Services and Pensions Ombudsman. The amendment will include any person engaged in the activity of credit servicing before the commencement of the Consumer Protection (Regulation of Credit Servicing Firms) Acts 2015 and 2018, respectively. Currently, the Financial Services and Pensions Ombudsman may only accept a complaint relating to the conduct of a credit servicing firm where the conduct giving rise to the complaint occurred after the commencement of the relevant Act. This amendment will extend the jurisdiction of the Financial Services and Pensions Ombudsman in respect of the activity of credit servicing. The Financial Services and Pensions Ombudsman will have jurisdiction to review complaints made at any point after a loan sale. This includes complaints before the commencement of either the 2015 Act or the 2018 Act. As the Deputies will be aware, this issue was raised by Deputy Doherty in particular at the Second Reading of the Bill. This amendment will now address the legitimate concern which was raised and will ensure that all mortgage holders will have access to the Financial Services and Pensions Ombudsman, if needed. The second part of the amendment is solely a drafting amendment, essentially to specify the statutory instrument number of the reference guidelines in the Bill. I commend the amendment to the Deputies in the House.
Sentiment score: 0.15
I just need to get the translation.
Sentiment score: 0.00
It was the Opposition that highlighted this at the time when the legislation was coming through. To the credit of the Minister for Finance at the time, former Deputy Michael McGrath, he undertook to take on board the Opposition’s concerns. I looked back at the debate in the Official Report. In February 2024, he acknowledged the Deputy had raised this matter in the House the previous week when we were bringing through legislation. The then Minister said it was important, and his commitment, that all consumers have equal access to the Financial Service and Pensions Ombudsman. He was not in any doubt about that. He undertook to consider the matter and postpone Committee Stage until a satisfactory resolution could be identified. Following consultations with the Attorney General, the previous Government approved this amendment last July. It expands the definition of "financial service provider" in the FSPO Act to include entities engaged in credit servicing before the credit servicing regulatory regime came into force. To confirm, it covers all activity of credit servicing before regulation came into being. Deputy Doherty referred to the length of time it has taken for cases to be adjudicated through the FSPO. I also have concerns about that. The Minister for Finance sanctioned its work plan for 2024 to 2026. The implementation of this work plan increases the office's resources and the capacity of the FSPO to resolve cases more promptly, with an increase of 42% in staffing. We would hope to see much greater efficiency in dealing with consumers' complaints. We all deal with people who have had their mortgage sold to vulture funds or who have been dealt with inappropriately by financial institutions and credit servicing firms. It is not unique to members of the Opposition. I deal with them in my constituency office, as do Government backbenchers, on a daily basis. It is in all our interests that all consumers have the protection of the Financial Service and Pensions Ombudsman. This amendment takes on board what was identified initially and will give that protection to everyone who needs it.
Sentiment score: 0.22
That is correct.
Sentiment score: 0.00
I thank Deputy Doherty and understand where he is coming from. The Minister does have regular engagement with the Financial Services and Pensions Ombudsman and we can commit to keeping the matter under review and on our radar in the regular engagement. In respect of the amendments, as the Deputies are aware, we undertake post enactment to carry out scrutiny of all legislation. This includes the requirement under Dáil Standing Orders that a post-enactment report be produced and laid 12 months after the enactment of legislation in the parliamentary Library. This 12-month post-enactment period provides a more appropriate timeframe in which to consider the operation of new legislation, particularly in this case in respect of extending the scope of the FSPO's jurisdiction. The FSPO is also accountable to the public accounts committee under section 22 of the 2017 principal Act and to other Oireachtas committees under section 23 of that Act. In recent years, representatives of the FSPO have also appeared regularly before the Committee on Public Petitions and the Ombudsmen. In addition, a range of parliamentary procedures are available to all Deputies, and I have committed to engaging with the Minister, Deputy Donohoe, to ensure he will keep this on the radar in his engagements. It is available to all Deputies to seek updates on the FSPO by way of parliamentary questions and I have no doubt the Deputies will use that opportunity themselves. Under section 25 of the Financial Services and Pensions Ombudsman Act 2017, the FSPO publishes a comprehensive annual overview of complaints, while under section 62 of that Act, it also publishes decisions on complaints against financial service providers and case studies of decisions on complaints against pension providers subject to the requirements of the Act. Accordingly, while it was not proposed to accept the Deputies' amendments, I appreciate that they did not move them and I give a commitment to engaging with the Minister and requesting that, in his ongoing engagement with the FSPO, he will keep this on the radar.
Sentiment score: 0.25
I have been told that the FSPO was created by merging the Financial Services Ombudsman and the Pensions Ombudsman and the levy system design reflects that since the 2017 Act. I do not know if that clarifies the matter for Deputy Doherty but if not we can come back to him with a more comprehensive answer. Section 3 outlines and updates the methodology for calculating expenses via a percentage split charged to the financial services ombudsman sector by a levy for financial services complaints, and expenses charged to the Exchequer for pensions cases. That was the question raised by the Deputy and that has been the case since the merger of the two ombudsmen in the 2017 Act. The main updates proposed by this Bill are to calculate the percentage split between the industry and Exchequer funding over the three immediately preceding financial years as opposed to the previous financial year as is currently provided for in the 2017 Act, and to update the term “dealt with by the Ombudsman” to “received by the Ombudsman". By providing for a calculation of expenses over a three-year period, any spikes, or the opposite, with regard to a certain type of complaints received during the year would not dramatically affect the calculation of expenses in a given year. That will provide certainty in terms of the resources for the ombudsman. Updating the term “dealt with” to “received by” makes it easier to identify when a complaint has been received as opposed to when it has been dealt with. This is the metric used in practice used by the FSPO and provides more clarity and transparency for the calculation of expenses.
Sentiment score: 0.09
I will undertake to ask the officials to respond to the Deputy. I honestly do not know but I will put it into context. In the 2024 budget for the FSPO, only 4%, or €525,000, of the overall costs came from the Department and 96% of the funding was covered by the industry. A very small percentage of the funding is coming from the Department. I do not know what the rationale was back in 2017 but we will get that information from the Department. To put it into context, we are talking about a very small element of the overall funding for the ombudsman’s office.
Sentiment score: 0.04
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.
Sentiment score: -0.03
To be brutally honest with the Deputies, when I was briefed on this Bill before coming in, I saw the merits of where they were coming from. I could see the reason for this and the examples of where it could well be needed. I could think of examples of dealing with marital breakdown in my constituency where one party has gone, never to be engaged with and the other person is unable to make contact with them. I see the rationale behind this, and it is in that context that the Central Bank's consumer protection code plays an important role in the context of wider financial consumer protection frameworks to support consumers. The code was subject to a major review by the Central Bank recently in order to deliver an updated, modernised and fit-for-purpose code for consumers of financial services. As part of that consultation process and the proposed revised code measures, the Central Bank has set out a number of important policy proposals relating to consumers in vulnerable circumstances and experiencing financial abuse, which would provide important enhancements for consumers in such circumstances. That is what Members were alluding to a moment ago. This includes a proposed new and overarching provision on securing consumers' interests, which obliges firms to effectively incorporate those interests in their strategy, business model and decision-making process, reflecting their overarching obligation to act in the best interests of their consumers. New measures on vulnerability are expected to be included in the updated code as part of the overarching duty on firms to secure the interests of customers. Firms would also be required to secure the interests of customers in vulnerable circumstances. This approach seeks to embed an understanding of vulnerability within the operation of a firm and ensure the needs of consumers in vulnerable circumstances and that a commitment to addressing these needs is an integral part of a firm's customer focus. This should allow firms to be prepared to assist when the needs of consumers in vulnerable circumstances arise. The Central Bank also consulted on the introduction of a new definition of financial abuse to mean the wrongful or unauthorised taking, withholding, appropriation or use of customers' moneys assets or property; any act or omission by a person, including through the use of power of attorney, guardianship or any other authority regarding a customer, to gain control through deception, intimidation or undue over the customer's money, assets or property; or wrongfully interfere with or deny the customer's ownership, use, benefit or possession of the customer's money, assets or property. A lot of work has been done on updating the Central Bank consumer protection code to help customers in vulnerable situations. However, I am told that in relation to the amendment, and taking account of the views of the Supreme Court in the Zalewski case, in which the Supreme Court held that any public administration body, such as the FSPO, which provides a complainant with a route to redress as an alternative to court is operating within the confines of the provisions of Article 37.1 of Bunreacht na hÉireann and is administrating justice. It is against this constitutional background that the FSPO operates as a quasi-judicial function and, for that reason, must be especially cognisant of the need to adhere to fair procedures. I am advised that legally we cannot do what is proposed. The Deputies are saying we can but I have to take the advice I am being given, which is that we cannot do it. I accept the rationale they have brought forward and their bona fides on this, but I have to take the advice I am given.
Sentiment score: 0.23
I hear what each of the Deputies is saying but, to be fair, the review of the consumer protection code is a good, positive and concrete change. We must also acknowledge that both parties to a contract have rights and they both have obligations. Deputy Doherty mentioned that the Central Bank or the relevant financial institution or pension provider can undertake a review if one party raises an issue, but it is also fair to say that neither the Central Bank nor a financial institution or pension provider is a quasi-judicial body. As a result, they cannot issue a legally binding finding in such a scenario. I recently wrote to a bank to request a change of address on a joint account I hold with my wife. The bank would not change it without her signature. It would not even change a postal address without her signature. I am not saying the Deputy is wrong, but my personal experience is in a situation where there is a joint account, both signatures must now be present, even to change an address. That is probably a welcome protection that is in place. I know of examples where the courts have difficulties where both parties are not coming to the situation. Quite often, the courts will suspend and give additional time to get a party to make contact with the other party because it will make it easier. I will give a commitment that I will engage with the FSPO to see whether anything is at all possible going forward. I accept and agree with the bona fides of what the Deputy is saying, especially in respect of people who have been subjected to marital breakdown and domestic abuse, who should not be penalised unnecessarily. I do not accept that it is as easy as projected, but I will give a commitment to the Deputy, if he does not press the amendment, that I will speak to the FSPO to see whether anything can be done.
Sentiment score: 0.33
Section 12 clarifies the respective remit of the financial services ombudsman and the credit reviewer. There is another similar amendment to section 14 of the Bill; that section also corrects a typographical error. The credit reviewer makes a recommendation regarding a participating bank's lending decision as a result of which the participating bank may decide to approve the loan. The FSPO's jurisdiction does not overlap because the FSPO does not interfere with the commercial discretion of a financial service provider regarding its decisions to advance credit, or the conditions under which the loan facilities are offered, including interest rates or repayment period. It is important to note that the credit reviewer reviews cases for SMEs, sole traders and farm enterprises, where the FSPO also investigates complaints by individual consumers. Nevertheless, a consumer, including a small business, may make a complaint to the FSPO regarding the conduct of the bank in how it assessed the loan application or regarding the treatment of a customer during the application process. The FSPO has jurisdiction to investigate whether the bank's conduct during the period was contrary to law or was unjust, unreasonable, oppressive or otherwise improper. The updated wording will foolproof the provisions of the legislation to prevent an overlap in the respective roles of the FSPO and the credit reviewer.
Sentiment score: 0.17
It will not remove any right; it just clarifies what the right is. The Credit Review Office, as the Deputy knows, was established for people who had a grievance or felt their credit application was not dealt with appropriately by way of a commercial decision on their ability to repay a financial loan. The measure clarifies the difference between the review office and the FSPO but is not removing any right. If people still believe it is required to go to the FSPO on grounds other than commercial-decision grounds, they can still do that.
Sentiment score: 0.22
I understand it was raised during pre-legislative scrutiny that clarity was needed. The amendment is to give rise to that clarity.
Sentiment score: 0.40
To clarify, it is exactly that.
Sentiment score: 0.00
Currently, there is no statutory obligation on pension providers to have internal dispute resolution processes in place. This measure will make it a statutory requirement.
Sentiment score: -0.30
I move amendment No. 6: In page 7, between lines 20 and 21, to insert the following: “19. Section 62 of the Principal Act is amended— (a) in subsection (1), by the substitution of “section 60 or 61” for “section 61 or 62”, (b) by the substitution of the following subsection for subsection (2): “(2) Subject to subsection (2A), the Ombudsman— (a) shall publish— (i) decisions made by him or her after the establishment day in relation to complaints concerning financial service providers, and (ii) case studies in relation to complaints concerning pension providers, and (b) may, if he or she considers it appropriate to do so in any particular case, publish, in such form as he or she thinks fit, a report in relation to any investigation under this Part and the result of that investigation, in such a manner that— (I) ensures that— (A) a complainant shall not be identified by name, address or otherwise, and (B) a financial service provider or a pension provider, as the case may be, shall not be identified by name or address, and (II) ensures compliance with the Data Protection Regulation and the Data Protection Act 2018.”, (c) by the insertion of the following subsection after subsection (2): “(2A) Where the Ombudsman has, as part of an investigation into a complaint, conducted an oral hearing in public under section 56(4A), the Ombudsman may identify the complainant and either the financial service provider or the pension provider concerned when publishing decisions, case studies or reports, as the case may be, under subsection (2).”, (d) by the repeal of subsection (3), and (e) in subsection (4), by the substitution of “any decision, case study or report, as the case may be, under subsection (2)” for “any report under subsection (2) or (3)”.”. This is just to correct a typographical error in section 62 of the 2017 Act, which refers to a decision of the ombudsman under sections 61 or 62 in respect of a complaint rather than a decision of the ombudsman under sections 60 or 61 in respect of a complaint. The amendment rectifies the typographical error so section 62, on decisions of the ombudsman, refers to sections 60 and 61. Section 60 is related to complaints and redress in respect of financial service providers, while section 61 refers to complaints and redress in respect of pension providers. It is just a technical amendment.
Sentiment score: -0.18
Yes.
Sentiment score: 0.40
My clear understanding is that, as the law stands, the only person who can opt to have the hearing in public is the person bringing the complaint. Therefore, it is not the FSPO who makes the decision to have the hearing in public. By virtue of the fact that the complainant is willing to have the hearing in public, he or she is giving implied permission to be known. If he or she wanted to have it in private, he or she could do so. It is his or her choice, nobody else's.
Sentiment score: 0.13
To confirm again, it is only where the hearing has been in public. The matter that will be published has already been heard in public. No new information is being published. The only person who can decide if they are willing to have the hearing in public is the person who is bringing the complaint. If someone is willing to have their complaint heard in public, they will not have an issue with the findings being published.
Sentiment score: -0.17
That is my understanding, yes.
Sentiment score: 0.40
The hearing would have been held in public anyway. It would be known.
Sentiment score: 0.00
The FSPO publishes an overview of complaints every year, as the Deputy will be aware. Where there are numerous complaints against a particular financial institution, it is named. It is at the discretion of the FSPO. The Deputy is right. If the complaint is heard in private, it is not guaranteed that the name of the financial institution will be published. However, if there are continuous complaints against that financial institution, the FSPO will publish and name it. I will have to come back to the Deputy on the threshold required in respect of the number of complaints against a particular financial institution. If there is one complaint, we can take it that will not be published. However, if there are numerous complaints, the institution's name will be published. I need to come back to the Deputy on the threshold.
Sentiment score: -0.20