The Financial Services Tribunal, which replaced the FSB Appeal Board from 1 April 2018, provides a person who is “aggrieved” by a “decision” of a “decision-maker” to apply to the Tribunal for a reconsideration of such a decision.
In a recent case, the Tribunal referred a decision by a pension fund back for a re-evaluation of its decision to exclude a beneficiary as it had failed to submit the documents on which it based its decision to the Pension Fund Adjudicator as well as the Tribunal.
The newly published Financial Tribunal rules now contain specific requirements with regards to the provision of documents on which decisions are based.
Changes and additions to the original rules
Application for reconsideration of decisions
Timeframe
According to the rules, an application for reconsideration must be made:
- within 30 days after the applicant has received the reasons for the decision from the decision maker (section 229 of the Act refers);
- or in all other cases, the application must be made within 60 days after the applicant was informed of the determination/decision, or any longer period that may be allowed if good cause is shown.
Format
The application for reconsideration must be drafted to conform as far as possible to either the standard Form A or the newly introduced Form B. Form A must be used if the decision of the relevant decision-maker is in favour of another party; and Form B must be used if the decision does not affect another party but only the applicant.
The updated rules explain the detail of the format of the underlying documents that need to be furnished to the Tribunal’s secretariat:
Upon receipt of the application for reconsideration, the decision-maker must, within 30 days of the date of receipt thereof, furnish the Tribunal secretariat with a hard copy or an electronic PDF version of a properly collated indexed and paginated bundle of the relevant underlying documents on which the decision was based together with further reasons, where necessary. Duplicates and documents that are not relevant to the application for reconsideration may not form part of the record. Records that do not comply with this provision will be returned to the decision-maker. (Item 14 of Rules)
The detail of the application for leave to reconsider resulting from decisions made by the office of the FAIS Ombud has been amended and those resulting from Pension Fund Adjudicator determinations have been added as well.
Decisions made by the FAIS Ombud’s office
For an application for leave to reconsider to be valid, it must be lodged with the secretariat AND all other parties to the decision. It must be in accordance with Form C and contain:
- a copy of the original application submitted to the Ombud;
- the decision letter;
- full particulars of the grounds (stated succinctly) on which the application is based and, if necessary, must deal with the aspect of condonation should the application be filed out of time.
Only documents relevant to the decision may be submitted. All documents must be properly marked, not duplicated, collated and in a single file. The Tribunal does not accept applications lodged piecemeal.
The FAIS Ombud, on receipt of an application for leave to reconsider, must provide the Tribunal secretariat with a hard copy or an electronic PDF version of a properly collated bundle of the relevant underlying documents on which the decision was based. Duplicates and documents that are not relevant to the application for leave to reconsider may not be included. Records that do not comply with this provision will be returned to the Ombud.
Determinations made by the Pension Funds Adjudicator
Upon receipt of the application for reconsideration, the respondent (other than the decision-maker) may within 14 days of the date of receipt thereof, furnish the Tribunal secretariat with written submissions in response to the application, where necessary.
Thereafter the respondent may, upon receipt of the applicant’s notice to amend or augment the grounds on which the application is based, within 14 days of the date of receipt thereof, furnish the Tribunal secretariat with further written submissions, if necessary.
Other grievances
Most of the cases published recently focused on the thorny issue of debarments, and failure by FSPs to follow due procedure. This is likely to take up even more time of the Tribunal as news gets out that perceived unfair practices can now be contested in a far more cost-effective and equitable manner.
It is important that, before individuals who are “aggrieved” by a “decision” of a “decision-maker” apply to the Tribunal for a reconsideration of the decision, they understand and follow the detail of the rules as prescribed.
Click here to download the updated Financial Services Tribunal Rules, inclusive of Forms A, B and C.
