Complaints against The Commission
The Commission’s current complaints scheme has been in force since 13 September 2005 and was last updated with effect from 19 July 2013 to reflect the transfer of functions, including financial services, from the Minister for Economic Development to the Chief Minister. There is a two-tier mechanism for investigation of complaints against the Commission: first, an investigation by the Commission itself, and second, a separate investigation of the complaint by an outside party where it has not proved possible to resolve the matter through the Commission’s internal complaints procedure. Further details of the complaints scheme are given below.
Who may complain?
Complaints may be lodged by, or on behalf of, any person (whether individual or corporate) directly affected by an act or omission of the Commission in the performance of its functions. The person must have suffered inconvenience, distress or loss as a result of the act or omission complained of.
Which complaints will be considered?
The complaints scheme is designed to deal with dissatisfaction arising from alleged unreasonable or unprofessional behaviour on the part of the Commission and its staff. This must involve specific instances of misconduct such as lack of integrity, bias, mistakes or unreasonable delay.
Which complaints will not be considered?
The scheme does not deal with disputes over the merits of regulatory decisions that could be, or have been, the subject of statutory appeal, or other matters that could be more appropriately dealt with through legal proceedings such as judicial review. Nor does it deal with complaints about the making or content of Commission policies, guidance or Codes.
The complaints scheme also does not deal with complaints whose substance is that the Commission has failed to act as a Financial Services Ombudsman, for which it has no statutory authority.
Other matters are also ruled out, relating to: dealings between the Commission and other governmental or regulatory authorities; the investigation of any crime; contractual or commercial transactions involving the Commission; and remuneration and personnel matters.
When must complaints be lodged?
A complaint must be lodged not later than twelve months after the date on which the complainant first became aware of the circumstances of the complaint, unless the complainant can show reasonable grounds for delay.
How should complaints be lodged with the Commission?
A complaint that is to be considered under the scheme should in the first instance be made in writing or by email to the Commission Secretary. To enable the matter to be investigated efficiently, the complaint should be as detailed as possible and should be accompanied by a copy of all relevant documentation and correspondence. The complainant should also indicate the nature of the remedy being sought.
How will the Commission handle complaints?
The Director General will investigate all complaints received (unless the Director General is the subject of the complaint). If necessary, the Director General will be assisted by a senior member of the Commission's staff who has not been involved in the matter complained about.
All complaints will be acknowledged within five working days of receipt and will be investigated as quickly as possible. If an investigation is not completed within four weeks the complainant will be contacted and given a likely completion date. The aim is to complete an investigation within eight weeks.
If a complaint is upheld, the complainant will be notified of the steps that will be taken to remedy the matters complained about. This may include, for example, a suitable apology or a decision to change the way the Commission works. If a complaint is rejected, the complainant will be told the reasons why.
A complainant who is dissatisfied with the decision of the Director General may refer the matter in writing or by email to the Chairman of the Commission who will undertake a review of the decision. The Chairman aims to complete his review within four weeks. Where the Director General is the subject of the complaint, the Chairman will conduct the investigation.
What is the role of the Chief Minister?
A complainant who is still not satisfied after review by the Chairman of the Commission, or is dissatisfied about the Commission’s progress on dealing with the complaint or a refusal to deal with the complaint, may refer the matter to the Chief Minister. Any such referral should include an explanation of why the complainant is dissatisfied and all relevant background information about the complaint. The Chief Minister will consider the complaint and will seek an explanation from the Commission on how it has handled the complaint.
If the Chief Minister considers that further investigation of the complaint is required, he may request the Commission to appoint a person under Article 10 of the Financial Services Commission (Jersey) Law 1998 to carry out the investigation. The Chief Minister will not, however, be obliged to institute an investigation and may refuse to do so if, for example, he believes that the complaint is vexatious or frivolous or falls outside the scope of the complaints scheme.
What is the role of the Investigator?
Although the appointment of a person (the “Investigator”) to investigate the complaint will be made by the Commission, the person will be from outside the Commission and will be expected to investigate the complaint in an impartial and objective manner. The Commission will consult with the Chief Minister on the name and terms of reference of the person to be appointed, and will not appoint a person whom the Chief Minister considers to be unsuitable.
The Investigator will be able to examine both the substance of a complaint and the way in which the Commission has handled it. The Investigator will have access to the information relating to the complaint that is available to the Commission, and will be able to make enquiries of Commission staff, who will be expected to cooperate with the investigation. The Commission will meet all costs of the investigation.
The Investigator will be subject to the same rules on confidentiality as apply to the Commission.
The Investigator will produce a report setting out his or her findings on the complaint and any recommendations for remedial action. The Commission will have the right to respond to the report. The report and the Commission’s response will be submitted to the Chief Minister, who will then decide how he wishes to reply to the complainant. The Chief Minister will normally publish the report and the Commission’s response unless he considers that it is not in the public interest to do so. Unless considered necessary, the Investigator will not name any person or body (apart from the Commission) in his report.
The Investigator’s recommendations on remedial action to be taken by the Commission may include whether the Commission should issue an apology or make changes to its procedures. Such recommendations will not be binding on the Commission, but if the Commission does not accept any of the recommendations in the report, it will be obliged to explain in its response the reasons for this and what alternative action, if any, it intends to take. The report will not preclude the bringing of legal proceedings by the complainant.
19 July 2013
Mr Christopher F Renault
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