Once the matter has been closed, the principal contact should consider the lessons that can be learned (including root cause analysis) and whether any of the following are required:
- A change to the firm’s practices or procedures.
- Additional training for the staff member(s) concerned.
- Additional training for all staff.
You should also review the complaint in terms of the firm’s breaches policy and consider whether a regulatory breach has occurred of which the FCA should be informed.
The regulator expects firms to advise it of any complaints, as part of routine complaints data reporting, which includes your obligations in relation to ongoing alerts for retail adviser complaints.
Fos referral
Regardless of the decision you reach, a client has the right to refer a complaint to the Fos, unless it falls under the time-barring rules outlined below.
Your customer might, for example, disagree with a decision to reject their complaint or think that insufficient redress has been offered. In each of these circumstances, they can ask the Fos to adjudicate.
It will consider whether the complainant is ‘eligible’ or the matter would be more appropriately dealt with by a court, arbitration or another complaints scheme.
You will receive confirmation from a Fos case handler that a complaint has been referred and they will likely ask for more information, such as T&Cs, the application form and suitability report.
Ideally, you should send through as much evidence as you can to support your decision.
The case handler will keep you and the complainant updated throughout the process and inform both parties of their final decision. Where applicable, a level of redress will be suggested.
If you or the client disagree with the complaint handler’s findings, you both have the right to refer the matter to an ombudsman.
At this point, you will need to send any other relevant information that you feel supports your decision. All of the evidence will then be looked at and assessed in line with regulation, law and good practice before the ombudsman provides their opinion.
The complainant will then be given time to consider the outcome. If they accept the decision, it will become legally binding and you must do whatever the ombudsman has recommended to put things right.
However, if the client rejects the ombudsman’s decision, they can still take the matter to court.
Time barring
There are a couple of reasons why the Fos will not consider a complaint. They are detailed in DISP 2.8 but briefly, a complaint cannot be referred if:
- It is more than six months after the firm provided the client with a final response letter;
- The event being complained about happened more than six years ago; or (if later)
- It is more than three years from the date on which the client became aware (or ought to have been reasonably aware) they had cause for complaint.
This rule can be of considerable use if a matter arises about historic advice, where there has been regular communication with the client since.
Cases that are referred to the ombudsman for a final decision are all published on the Fos website: Ombudsman decisions.
