Financial Services and Pensions Ombudsman Act 2017
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Interpretation | ||
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2. (1) In this Act— | ||
“Act of 1942” means the Central Bank Act 1942 ; | ||
“Act of 1990” means the Pensions Act 1990 ; | ||
“Act of 1995” means the Consumer Credit Act 1995 ; | ||
“Act of 2004” means the Public Service Management (Recruitment and Appointments) Act 2004 ; | ||
“Act of 2014” means the Companies Act 2014 ; | ||
“actual or potential beneficiary”— | ||
(a) in relation to a complaint concerning a pension provider, means a member, an external member, any person who has been a member, any surviving dependant of a deceased member, any person claiming to be a member or a surviving dependant of a deceased member, a contributor to a PRSA, a legal personal representative of a deceased member or deceased contributor, a widow, widower or surviving spouse or civil partner of a deceased member or deceased contributor or any person with an entitlement under a scheme, and | ||
(b) in relation to a complaint concerning a financial service provider, means a consumer, any surviving dependant of a consumer, a legal personal representative of a deceased consumer, a widow, widower or surviving spouse or civil partner of a deceased consumer or any person who is contractually entitled to benefit from a long-term financial service; | ||
“Bank” means the Central Bank of Ireland; | ||
“complaint” means a complaint made in accordance with this Act in relation to the conduct of a financial service provider or a pension provider specified in section 44 (1)(a) and (b) respectively; | ||
“complainant” means a person who makes a complaint under section 44 (1) that is— | ||
(a) a consumer, | ||
(b) an actual or potential beneficiary, | ||
(c) a person acting on behalf of an actual or potential beneficiary, or | ||
(d) a person of a class specified in regulations made by the Minister under section 4 ; | ||
“consumer”, in relation to a financial service, means— | ||
(a) (i) a natural person, not acting in the course of business, | ||
(ii) a sole trader, partnership, trust club or charity (not being a body corporate), with an annual turnover in its previous financial year (within the meaning of section 288 of the Act of 2014) of €3 million or less, or | ||
(iii) an incorporated body that— | ||
(I) had an annual turnover in its previous financial year (within the meaning of section 288 of the Act of 2014) of €3 million or less, and | ||
(II) is not a body corporate that is a member of a group of companies (within the meaning of section 8 of the Act of 2014) with a combined annual turnover (in the previous financial year (within the meaning of section 288 of the Act of 2014) of the group of companies), of greater than €3 million, | ||
that— | ||
(A) is a customer of a financial service provider, | ||
(B) is a person or body to whom a financial service provider has offered to provide a financial service, or | ||
(C) has sought the provision of a financial service, | ||
(b) a consumer who was, in relation to a credit agreement, a customer of the financial service provider in a case where a credit servicing firm undertakes credit servicing in respect of the credit agreement concerned, | ||
(c) an actual or potential beneficiary of a financial service, or | ||
(d) an employee or a former employee entitled to benefit from an income continuance plan; | ||
“consumer”, in relation to a pension product, means an actual or potential beneficiary of an occupational pensions scheme, a trust RAC or a PRSA who believes they have suffered financial loss because of maladministration of the scheme, trust or PRSA, as the case may be; | ||
“Council” has the meaning given to it by section 37 ; | ||
“credit agreement” has the meaning given to it in section 28 of the Central Bank Act 1997 ; | ||
“credit servicing” has the meaning given to it in section 28 of the Central Bank Act 1997 ; | ||
“credit servicing firm” has the meaning given to it in section 28 of the Central Bank Act 1997 ; | ||
“custodian” means a financial institution appointed to hold securities or other assets of a scheme, whether in physical or electronic form; | ||
“Deputy Financial Services Ombudsman” means a person appointed by the Financial Services Ombudsman Council under section 57BJ(1) of the Act of 1942; | ||
“Deputy Ombudsman” has the meaning given to it by section 8 (1)(b); | ||
“dissolved bodies” means— | ||
(a) the Financial Services Ombudsman’s Bureau, | ||
(b) the Financial Services Ombudsman Council, and | ||
(c) the office of the Pensions Ombudsman; | ||
“establishment day” shall be construed in accordance with section 6 ; | ||
“external member”, in relation to a scheme, means any person who, having been admitted to membership under the rules of the scheme, remains entitled to any benefit under the scheme in respect of a period of service whilst employed outside the State; | ||
“financial services” includes financial products; | ||
“Financial Services Ombudsman” means a person appointed by the Financial Services Ombudsman Council under section 57BJ(1) of the Act of 1942; | ||
“Financial Services Ombudsman’s Bureau” means the bureau established by section 57BI of the Act of 1942; | ||
“Financial Services Ombudsman Council” means the council established by section 57BC of the Act of 1942; | ||
“financial service provider” means any of the following: | ||
(a) a regulated financial service provider within the meaning of section 2(1) of the Act of 1942; | ||
(b) a credit intermediary that is required to be authorised by the Competition and Consumer Protection Commission under Part XI of the Act of 1995; | ||
(c) a pawnbroker that is required to be authorised by the Competition and Consumer Protection Commission under section 8 of the Pawnbrokers Act 1964 ; | ||
(d) a creditor with respect to the performance of his or her obligations under the Act of 1995 and under— | ||
(i) a contract for the provision of credit to a consumer, and | ||
(ii) any contract of guarantee relating to the provision of that credit; | ||
(e) an owner of goods that are subject to hire-purchase under a hire-purchase agreement with respect to the performance of his or her obligations under the Act of 1995 and under— | ||
(i) a contract for the hire-purchase, and | ||
(ii) any contract of guarantee relating to the hire-purchase agreement or any right to recover the goods from the hirer under the hire-purchase agreement; | ||
(f) an owner of goods that are subject to a consumer-hire agreement with respect to the performance of his or her obligations under the Act of 1995 and under— | ||
(i) a consumer-hire agreement, and | ||
(ii) under any contract of guarantee relating to the consumer-hire agreement or any right to recover the goods from the hirer under the consumer-hire agreement; | ||
(g) a mortgage lender within the meaning of section 2 of the Act of 1995; | ||
(h) any other person of a class specified in regulations made by the Minister under section 4 ; | ||
“financial services industry levy” has the meaning given to it by section 43 ; | ||
“income continuance plan” means an insurance contract taken out by an employer (whether or not in conjunction with employees) designed to pay an income to an employee on the occurrence of certain events specified in the contract that render the employee unable to continue to perform the duties under his or her contract of employment on a long-term basis; | ||
“investment manager” means any person appointed to manage the funds of a scheme or to implement the statement of investment policies and principles of the trustees; | ||
“long-term financial service” means— | ||
(a) subject to paragraph (b), a financial service the duration of which is a fixed term of 5 years and one month, or more, but, notwithstanding that the aggregate term of them may be 5 years and one month (or more), there does not fall within this paragraph a series of consecutive terms in respect of a financial service’s duration (provided no individual one of them is 5 years and one month, or more, in length), or | ||
(b) a financial service that is life assurance to which, by virtue of Regulation 4 of those Regulations, the European Communities (Life Assurance) Framework Regulations 1994 ( S.I. No. 360 of 1994 ) apply (not being life assurance falling within Class VII defined in the first Annex thereto) and regardless of whether the term of which life assurance is fixed at a specified calendar period or not; | ||
“member” means— | ||
(a) in relation to a scheme, subject to sections 62 and 154 of the Act of 1990, any person who, having been admitted to membership under the rules of the scheme, remains entitled to any benefit under the scheme in respect of a period of service whilst employed within the State, and | ||
(b) in relation to a trust RAC, any person whose occupational activities entitle, or will entitle, the person to retirement benefits (within the meaning of Article 6 of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 20031 ) in accordance with the rules of the trust RAC; | ||
“Minister” means the Minister for Finance; | ||
“occupational pension scheme” means any scheme or arrangement other than an overseas pension scheme within the meaning of section 770 (1) of the Taxes Consolidation Act 1997 — | ||
(a) which is comprised in one or more instruments or agreements, | ||
(b) subject to section 154 of the Act of 1990, which provides or is capable of providing in relation to employees in any description of employment within the State, benefits, and | ||
(c) which— | ||
(i) has been approved of by the Revenue Commissioners for the purpose of Chapter 1 of Part 30 of the Taxes Consolidation Act 1997 , | ||
(ii) is a scheme or arrangement in respect of which an application for approval under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997 is being considered, | ||
(iii) is a statutory scheme to which section 776 of the Taxes Consolidation Act 1997 applies, | ||
(iv) is a scheme to which section 790B of the Taxes Consolidation Act 1997 applies, | ||
(v) is a scheme, other than a scheme specified in subparagraph (i), (ii) or (iii), the benefits of which are paid in whole or in part out of moneys provided from the Central Fund or moneys provided by the Oireachtas, or | ||
(vi) has been approved by the Revenue Commissioners for the purpose of one or more of the following: | ||
(I) section 32 of the Finance Act 1921 ; | ||
(II) section 34 of the Finance Act 1958; or | ||
(III) section 222 or 229 of the Income Tax Act 1967 ; | ||
“Office” has the meaning given to it by section 7 (1); | ||
“Ombudsman” has the meaning given to it by section 8 (1)(a); | ||
“paying agent” means a person appointed by the trustees of a scheme to administer the payment of benefits under that scheme to beneficiaries and to collect and account for any tax liability arising from such benefits; | ||
“pension provider”, in relation to a scheme, means any of the following: | ||
(a) any employer who adheres to the scheme; | ||
(b) any person or undertaking that provides services to the scheme as a trustee, administrator, registered administrator for the purposes of Part VIA of the Act of 1990, consultant or advisor, investment manager, custodian, paying agent, insurer or actuary; | ||
(c) any person to whom the implementation or interpretation of the rules of the scheme is entrusted; | ||
(d) any other person of a class specified in regulations made by the Minister under section 4 ; | ||
“Pensions Ombudsman” shall be construed in accordance with section 127 of the Act of 1990; | ||
“PRSA” means a personal retirement savings account established by a contributor with a PRSA provider under the terms of a PRSA contract; | ||
“scheme”, in relation to a pension, means an occupational pension scheme, a PRSA or a trust RAC; | ||
“trust RAC” means a trust scheme within the meaning of section 784 (4) of the Taxes Consolidation Act 1997 which has been approved by the Revenue Commissioners for the purposes of section 784(4) or 785(5) of that Act or the application for approval of which under either of those provisions is being considered, other than a trust scheme which, apart from temporary holdings in cash for liquidity purposes, invests only in life assurance policies. | ||
(2) A word or expression that is used in this Act and is also used in the Act of 1942 or the Act of 1990 shall have, unless the context otherwise requires, the same meaning in this Act as it has in either of those Acts. | ||