The Financial Services and Markets Act 2000 (Transitional Provisions) (Complaints Relating to General Insurance and Mortgages) Order 2004

Complaints made after commencement about acts or omissions before commencement

2.—(1) Subject to the provisions of this Order, the compulsory jurisdiction resulting from section 226 of the Act(1) applies to a complaint referred to the new scheme after the relevant commencement date which relates to an act or omission occurring before that date if the conditions mentioned in paragraph (2) are satisfied (notwithstanding that the conditions in subsection (2)(b) and (c) of that section are not met).

(2) The conditions are that—

(a) the act or omission is that of a person (“R”) who, at the time of that act or omission, was subject to a former scheme;

(b) R was an authorised person on or after the relevant commencement date;

(c) the act or omission occurred in the carrying on by R of an activity to which that former scheme applied; and

(d) the complainant is eligible and wishes to have the complaint dealt with under the new scheme.

(3) For the purposes of paragraph (2)(d), where the complainant is not eligible in accordance with the rules made under section 226(6) and (7) of the Act (power to specify in rules the classes of persons who are eligible complainants), an ombudsman may nonetheless, if he considers it appropriate, treat the complainant as eligible if he would have been entitled to refer an equivalent complaint to the former scheme in question immediately before the relevant commencement date.

(4) Where the former scheme in question is the GISC Facility, a complainant is not to be treated as eligible for the purposes of paragraph (2)(d) unless—

(a) he is an individual; and

(b) he is acting otherwise than solely for the purposes of his business.

(5) Where the former scheme in question is the MCAS Scheme, a complainant is not to be treated as eligible for the purposes of paragraph (2)(d) if—

(a) the complaint does not relate to a breach of the Mortgage Code(2);

(b) the complaint concerns physical injury, illness, nervous shock or their consequences; or

(c) the complainant is claiming a sum of money that exceeds £100,000.

(6) A complaint falling within paragraph (1) is referred to in this Order as a “relevant transitional complaint”.

(1)

Modified by S.I. 2001/2326.

(2)

Published by the Council of Mortgage Lenders, 3 Savile Row, London W1S 3PB in April 1998 (second edition).