The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015

Regulation 8

SCHEDULE 1 U.K. Competent Authorities

PART 1 U.K.

Column 1	Column 2
Financial Conduct Authority	Financial Ombudsman Service
Legal Services Board	Office for Legal Complaints

PART 2 U.K.

Civil Aviation Authority Gambling Commission Gas and Electricity Markets Authority Office of Communications The lead enforcement authority for the purposes of the Estate Agents Act 1979 M1

Marginal Citations

M1 1979 c.38.

Regulation 9(2)

SCHEDULE 2 U.K. Information that an ADR applicant must supply

a) the ADR applicant's name, contact details and website address;

b) information regarding the structure and funding of the ADR applicant, including such information as the competent authority may require regarding its ADR officials, their remuneration, term of office and by whom they are employed;

c) the rules of the alternative dispute resolution procedure to be operated by the ADR applicant;

d) any fees to be charged by the ADR applicant;

e) where the ADR applicant already operates an alternative dispute resolution procedure, the average length of the alternative dispute resolution procedure;

f) the language in which the ADR applicant is prepared to receive initial complaint submissions and conduct the alternative dispute resolution procedure;

g) a statement as to the types of disputes covered by the alternative dispute resolution procedure operated by the ADR applicant;

h) the grounds, if any, on which the ADR applicant may refuse to deal with a dispute;

i) a reasoned statement which sets out how the ADR applicant complies, or proposes to comply, with the requirements set out in Schedule 3.

Regulation 9(4)

SCHEDULE 3 U.K. Requirements that a competent authority must be satisfied that the [F1 person] meets

Textual Amendments

F1 Word in Regulations substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), reg. 2(2)

Alternative dispute resolution services offered by the [F1 person] U.K.

1.  The [F1 person] —

(a) offers alternative dispute resolution services in relation to a domestic dispute or cross-border dispute brought by a consumer against a trader;

(b) is not formed for the purpose of dealing only with one particular domestic dispute or cross-border dispute;

(c) does not offer alternative dispute resolution services in relation to a domestic or cross-border dispute in circumstances where an ADR official responsible for the dispute is either employed or remunerated directly by a trader who is a party to the dispute.

Access to the ADR entity U.K.

2.  The [F1 person] —

(a) maintains an up-to-date website which provides the parties to a domestic dispute or cross-border dispute with information regarding the alternative dispute resolution procedure operated by the [F1 person] ;

(b) provides the information referred to in sub-paragraph (a) to a party on a durable medium, if a party requests it;

(c) ensures that its website enables a consumer to file an initial complaint submission and any necessary supporting documents online;

(d) permits the consumer to file an initial complaint submission by post, if the consumer wishes;

(e) enables the exchange of information between the parties via electronic means or, if a party wishes, by post;

(f) accepts disputes covered by Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes M2 .

Marginal Citations

M2 OJ No L 165 18.6.2013 p1.

Expertise, Independence and Impartiality U.K.

3.  The [F1 person] —

(a) ensures that an ADR official possesses a general understanding of the law and the necessary knowledge and skills relating to the out-of-court or judicial resolution of consumer disputes, to be able to carry out his or her functions competently;

(b) appoints each ADR official for a term of office of sufficient duration to ensure the independence of that person's actions and provides that no ADR official can be relieved of his or her duties without just cause;

(c) ensures that no ADR official discharges his or her duties in a way that is biased as regards a party to a dispute, or the representative of a party;

(d) remunerates an ADR official in a way that is not linked to the outcome of the alternative dispute resolution procedure;

(e) where it appoints more than one ADR official, ensures that an ADR official, without undue delay, discloses to the [F1 person] a circumstance that may, or may be seen to—

(i) affect the ADR official's independence or impartiality; or

(ii) give rise to a conflict of interest with a party to the dispute which the ADR official is asked to resolve;

(f) ensures that the obligation to disclose a conflict of interest is a continuing obligation throughout the alternative dispute resolution procedure;

(g) ensures that in circumstances where its ADR officials are employed or remunerated exclusively by a professional organisation or business association, the [F1 person] has a ring-fenced budget at its disposal which is sufficient to enable it to carry out its functions as an ADR entity;

(h) ensures that where the operating model of its alternative dispute resolution procedure is to have a collegial body of representatives of both professional organisations or business associations, and consumer organisations, its ADR officials comprise an equal number of representatives of consumer interests and trader interests.

Conflict of interests procedure U.K.

4.  The [F1 person] has in place the following procedure in the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—

(a) where possible, the ADR official is replaced by another ADR official to handle the particular dispute;

(b) if the ADR official cannot be replaced by another ADR official—

(i) the ADR official must refrain from conducting the alternative dispute resolution procedure, and

(ii) the [F1 person] must, where possible, propose to the parties that they submit the dispute to another ADR entity which is competent to deal with it;

(c) if the dispute cannot be transferred to another ADR entity, the [F1 person] —

(i) must inform the parties to the dispute of the circumstances of the conflict of interest,

(ii) must inform the parties to the dispute that they have the right to object to the conflicted person continuing to handle the dispute, and

(iii) can only continue to deal with the dispute if no party to the dispute objects.

Transparency U.K.

5.  The [F1 person] makes the following information publicly available on its website in a clear and easily understandable manner, and provides, on request, this information to any person on a durable medium—

(a) its contact details, including postal address and e-mail address;

(b) a statement that it has been approved as an ADR entity by the relevant competent authority once this approval has been granted;

(c) its ADR officials, the method of their appointment and the duration of their appointment;

(d) the name of any network of bodies which facilitates cross-border alternative dispute resolution of which it is a member;

(e) the type of domestic disputes and cross-border disputes which it is competent to deal with, including any financial thresholds which apply;

(f) the procedural rules of the alternative dispute resolution procedure operated by it and the grounds on which it can refuse to deal with a given dispute in accordance with paragraph 13;

(g) the language in which it is prepared to receive an initial complaint submission;

(h) the language in which its alternative dispute resolution procedure can be conducted;

(i) the principles the [F1 person] applies, and the main considerations the [F1 person] takes into account, when seeking to resolve a dispute;

(j) the preliminary requirements, if any, that a party to a dispute needs to have met before the alternative dispute resolution procedure can commence;

(k) a statement as to whether or not a party to the dispute can withdraw from the alternative dispute resolution procedure once it has commenced;

(l) the costs, if any, to be borne by a party, including the rules, if any, on costs awarded by the [F1 person] at the end of the alternative dispute resolution procedure;

(m) the average length of each alternative dispute resolution procedure handled by the [F1 person] ;

(n) the legal effect of the outcome of the dispute resolution process, including whether the outcome is enforceable and the penalties for non-compliance with the outcome, if any;

(o) a statement as to whether or not alternative dispute resolution procedures operated by it can be conducted by oral or written means (or both);

(p) the annual activity report required to be prepared under regulation 11(2).

Effectiveness U.K.

6.  The [F1 person] —

(a) ensures that its alternative dispute resolution procedure is available and easily accessible to both parties irrespective of where they are located including by electronic means and non-electronic means;

(b) ensures that—

(i) the parties to a dispute are not obliged to obtain independent advice or be represented or assisted by a third party although they may choose to do so;

(ii) the alternative dispute resolution is available free of charge or at a nominal fee for consumers;

[F2 (c) notifies the parties to a dispute as soon as it has received the complete complaint file, unless the person has already notified the parties that it refuses to deal with the dispute in accordance with paragraph 15;]

(d) notifies the parties of the outcome of the alternative dispute resolution procedure within a period of 90 days from the date on which the [F1 person] [F3 issues the notice under sub-paragraph (c)] except that, in the case of a highly complex dispute, the [F1 person] may extend this period but must inform the parties of this extension and the expected length of time that it will need to conclude the alternative dispute resolution procedure.

Textual Amendments

F2 Sch. 3 para. 6(c) substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(a)

F3 Words in Sch. 3 para. 6(d) substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(b)

Fairness U.K.

7.  The [F1 person] —

(a) ensures that during the alternative dispute resolution procedure the parties may, within a reasonable period of time, express their points of view;

(b) provides a party to a dispute within a reasonable period of time, upon request, with the arguments, evidence, documents and facts put forward by the other party to the dispute, including a statement made, or opinion given, by an expert;

(c) ensures that the parties may, within a reasonable period of time, comment on the information and documents provided under paragraph (b);

(d) informs the parties that they are not obliged to retain a legal advisor, but that they may seek independent advice or be represented or assisted by a third party at any stage of the alternative dispute resolution procedure;

(e) notifies the parties of the outcome of the alternative dispute resolution procedure on a durable medium and gives the parties a statement of the grounds on which the outcome is based.

8.  Subject to paragraphs 9 and 10, in relation to an alternative dispute resolution procedure which aims at resolving a dispute by proposing a solution, the [F1 person] ensures that the parties— U.K.

(a) have the possibility of withdrawing from the alternative dispute resolution procedure at any stage if they are dissatisfied with the performance or operation of the alternative dispute resolution procedure;

(b) before the alternative dispute resolution procedure commences, are informed of their right to withdraw from the alternative dispute resolution procedure at any stage;

(c) are informed, before agreeing to or following the proposed solution—

(i) that they have a choice as to whether or not to agree to, or follow, the proposed solution;

(ii) that their participation in the alternative dispute resolution procedure does not preclude the possibility of them seeking redress through court proceedings;

(iii) that the proposed solution may be different from an outcome determined by a court applying legal rules; and

(iv) of the legal effect of agreeing to, or following the proposed solution;

(d) before expressing their consent to a proposed solution or amicable agreement, are allowed a reasonable period of time to reflect.

9.  Paragraphs 8(a) and 8(b) do not apply to the [F1 person] in respect of a party who is— U.K.

(a) a trader; and

[F4 (b) obliged under an enactment, rules of a trade association, or term of a contract, to participate in an alternative dispute resolution procedure.]

Textual Amendments

F4 Sch. 3 para. 9(b) substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(c)

10.  Paragraph 8 does not apply to the [F1 person] in respect of a party who is— U.K.

(a) a trader; and

[F5 (b) obliged under an enactment, rules of a trade association, or term of a contract, to accept the solution proposed by the person if the consumer accepts the solution.]

Textual Amendments

F5 Sch. 3 para. 10(b) substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(d)

Legality U.K.

11.  In relation to an alternative dispute resolution procedure which aims at resolving a dispute by imposing a solution on the consumer, the [F1 person] ensures that—

(a) in a situation where there is no conflict of laws, the solution imposed by the [F1 person] does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by agreement by virtue of any enactment;

(b) in a situation involving a conflict of laws—

(i) where the law applicable to the sales contract or service contract is determined in accordance with Article 6(1) and (2) of Regulation (EC) No 593/2008 on the law applicable to contractual obligations M3 the solution imposed by the [F1 person] does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the law of the member State in which the consumer is habitually resident;

(ii) where the law applicable to the sales contract or service contract is determined in accordance with Article 5(1) to (3) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations M4 the solution imposed by the [F1 person] does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the mandatory rules of the law of the member State in which the consumer is habitually resident.

Marginal Citations

M3 OJ No L 177 4.7.2008 p6.

M4 OJ No L 266 9.10.1980 p1.

12.  For the purposes of paragraph 11 “habitual residence” is be determined in accordance with Regulation (EC) No 593/2008 M5 . U.K.

Marginal Citations

M5 OJ No L 177 4.7.2008 p6.

Grounds to refuse to deal with a dispute U.K.

13.  The [F1 person] may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—

(a) prior to submitting the complaint to the [F1 person], the consumer has not attempted to contact the trader concerned in order to discuss the consumer's complaint and sought, as a first step, to resolve the matter directly with the trader;

(b) the dispute is frivolous or vexatious;

(c) the dispute is being, or has been previously, considered by another ADR entity or by a court;

(d) the value of the claim falls below or above the monetary thresholds set by the [F1 person];

[F6 (e) the consumer has not submitted the complaint to the person within the time period specified by the person, which shall not be less than the prescribed period.]

(f) dealing with such a type of dispute would seriously impair the effective operation of the [F1 person].

Textual Amendments

F6 Sch. 3 para. 13(e) substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(e)

[F7 13A.— (1) Subject to sub-paragraph (2), the “prescribed period” is 12 months from the date on which the trader informs the consumer that the trader is unable to resolve the consumer’s complaint (the “notice date”).

(2) Where the notice date occurred prior to the date on which the relevant competent authority approved the person as an ADR entity, under regulation 9(4), the “prescribed period” is the time period for submission of complaints as set out in the rules operated by that person on the notice date.]

Textual Amendments

F7 Sch. 3 para. 13A inserted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(f)

14.  The [F1 person] ensures that its policy regarding when it will refuse to deal with a dispute, including in relation to the level of any monetary threshold it sets, does not significantly impair consumers' access to its alternative dispute resolution procedures. U.K.

[F8 14A.   The decision in paragraph 13 can be made at any time prior to the expiry of three weeks of the date upon which the person received the final submissions of the parties, but it cannot be made after the person has notified the parties under paragraph 6(c) that it has received the complete complaint file.] U.K.

Textual Amendments

F8 Sch. 3 para. 14A inserted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(g)

[F9 15.   Where a person decides to refuse to deal with a dispute, the person must as soon as reasonably practicable, provide the parties with a reasoned explanation of the grounds for not considering the dispute.] U.K.

Textual Amendments

F9 Sch. 3 para. 15 substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(h)

[F10 16.   Where, following the expiry of the period referred to in paragraph 14A, it appears to the person that one of the parties has sought to mislead the person as regards the existence or non-existence of one of the grounds for it to refuse to deal with a dispute, the person may immediately refuse to deal further with the dispute.] U.K.

Textual Amendments

F10 Sch. 3 para. 16 substituted (9.7.2015) by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (S.I. 2015/1392), regs. 1(2), 2(15)(i)

Regulation 10(1)

SCHEDULE 4 U.K. Information to be included in the list maintained by a competent authority

a) the name, contact details and website address of the ADR entity;

b) the fees, if any, charged by the ADR entity;

c) the language in which complaints can be submitted to the ADR entity and in which the ADR entity can conduct alternative dispute resolution procedures;

d) the types of domestic dispute and cross-border dispute covered by the alternative dispute resolution services provided by the ADR entity;

e) the sectors and categories of domestic disputes and cross-border disputes covered by the ADR entity;

f) whether or not the alternative dispute resolution procedure is or can be conducted as an oral or a written procedure;

g) whether the outcome of the alternative dispute resolution procedure is binding;

h) the grounds on which the ADR entity may refuse to deal with a given dispute in accordance with paragraph 13 of Schedule 3.

Regulation 11(2)

SCHEDULE 5 U.K. Information to be included in an ADR entity's annual activity report

a) the number of domestic disputes and cross-border disputes the ADR entity has received;

b) the types of complaints to which the domestic disputes and cross-border disputes relate;

c) a description of any systematic or significant problems that occur frequently and lead to disputes between consumers and traders of which the ADR entity has become aware due to its operations as an ADR entity;

d) any recommendations the ADR entity may have as to how the problems referred to in paragraph (c) could be avoided or resolved in future, in order to raise traders' standards and to facilitate the exchange of information and best practices;

e) the number of disputes which the ADR entity has refused to deal with, and percentage share of the grounds set out in paragraph 13 of Schedule 3 on which the ADR entity has declined to consider such disputes;

f) the percentage of alternative dispute resolution procedures which were discontinued for operational reasons and, if known, the reasons for the discontinuation;

g) the average time taken to resolve domestic disputes and cross-border disputes;

h) the rate of compliance, if known, with the outcomes of the alternative dispute resolution procedures;

i) the co-operation, if any, of the ADR entity within any network of ADR entities which facilitates the resolution of cross-border disputes.

Regulation 11(3)

SCHEDULE 6 U.K. Information which an ADR entity must communicate to the relevant competent authority every two years

a) the number of disputes received by the ADR entity and the types of complaints to which the disputes related;

b) the percentage share of alternative dispute resolution procedures which were discontinued before an outcome was reached;

c) the average time taken to resolve the disputes which the ADR entity has received;

d) the rate of compliance, if known, with the outcomes of its alternative dispute resolution procedures;

e) any recommendations the ADR entity may have as to how any systematic or significant problems that occur frequently and lead to disputes between consumers and traders could be avoided or resolved in future;

f) where the ADR entity is a member of any network of ADR entities which facilitates the resolution of cross-border disputes, an assessment of the effectiveness of its co-operation in that network;

g) where the ADR entity provides training to its ADR officials, details of the training it provides;

h) an assessment of the effectiveness of an alternative dispute resolution procedure offered by the ADR entity and of possible ways of improving its performance.

Regulation 16

SCHEDULE 7 U.K. Consequential amendments

Financial Services and Markets Act 2000 U.K.

1.—(1) The Financial Services and Markets Act 2000 M6 is amended as follows.

(2) In section 404B (complaints to the ombudsman scheme) M7 —

(a) after subsection (1) insert—

“(1A) Subsection (1) does not apply if the consumer and the relevant firm agree that it should not apply.”;

(b) after subsection (2) insert—

“(2A) The way in which a complaint mentioned in subsection (2) is to be determined by the ombudsman is to be as mentioned in subsection (4).

(2B) Subsection (2A) does not apply if the consumer and the relevant firm agree that it should not apply.”; and

(c) for subsection (3) substitute—

“(3) In the following provisions of this section “relevant complaint” means—

(a) a complaint mentioned in subsection (1) other than one in relation to which subsection (1A) applies, or

(b) a complaint mentioned in subsection (2) other than one in relation to which subsection (2B) applies.”.

(3) In Schedule 17 (the ombudsman scheme) M8 —

(a) in paragraph 1 after “In this Schedule—” insert—

““ADR Directive” means Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC M9 ;

“ADR entity” means any entity which is listed by a member State in accordance with Article 20(2) of the ADR Directive;”;

(b) in paragraph 2—

(i) renumber the existing paragraph as sub-paragraph (1); and

(ii) at the end of sub-paragraph (1) insert—

“(2) The FCA must exercise any function falling within sub-paragraph (3) in a way which is consistent with enabling the scheme operator, at all times, to qualify as an ADR entity and to meet the quality requirements in Chapter II of the ADR Directive.

(3) The following functions of the FCA fall within this sub-paragraph—

(a) making rules for the purposes of section 226;

(b) approving rules made for the purposes of section 227;

(c) specifying an amount under section 229(4);

(d) approving rules made under section 230;

(e) taking steps under sub-paragraph (1);

(f) appointing or removing members of the board under paragraph 3(2);

(g) taking steps under paragraph 3A(1);

(h) making rules under paragraph 7(3);

(i) making rules under paragraph 13;

(j) consenting to scheme rules under paragraph 14(7), other than rules relating to fees;

(k) approving the fixing, variation, addition or removal of standard terms under paragraph 18, other than terms relating to the making of payments to the scheme operator; and

(l) approving arrangements under paragraph 19(3).”;

(c) in the heading immediately preceding paragraph 13, omit “procedural”;

(d) in paragraph 13, in sub-paragraph (1)—

(i) after “unless” insert “ — (a) ”, and

(ii) at the end of paragraph (a) insert

“, or

(b) in the case of a complaint other than a relevant complaint within the meaning of section 404B, the respondent agrees that the complaint should be entertained despite the complainant having referred it under the ombudsman scheme after the applicable time limit has expired.”; and

(e) in paragraph 14 after sub-paragraph (3) insert—

“(3A) The scheme operator must exercise the function of making scheme rules in a way which is consistent with enabling the scheme operator to qualify as an ADR entity and to meet the quality requirements in Chapter II of the ADR Directive.”.

Marginal Citations

M6 2000 c. 8.

M7 Sections 404-404G were substituted for the original section 404 by the Financial Services Act 2012, section 14(1).

M8 Schedule 17 was amended by the Financial Services Act 2012, section 39 and Schedule 11, paragraphs 13-30; the Consumer Credit Act 2006, sections 59(2), 61(10) and Schedule 2; the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013, S.I. 2013/1881; the Electronic Money Regulations 2011, S.I. 2011/99; the Payment Services Regulations 2009. S.I. 2009/209; the Crime and County Courts Act 2013, section 17 and Schedule 9; the Tribunals, Courts and Enforcement Act 2007, section 62(3) and Schedule 13.

M9 OJ No L 164, 18.6.2013, p63.

Regulation 20(2)

SCHEDULE 8 U.K. LISTED DIRECTIVE

Provisions of Directive	Specified UK Law
Article 13 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) 2006/2004 and Directive 2009/22/EC M10	Regulation 19(1) and (2) of the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 M11

Marginal Citations

M10 OJ No L 165, 18.6.2013, p. 63.

M11 S.I. 2015/542.