INSURANCE LAW

Australian Financial Complaints Authority (AFCA)

What powers do AFCA have? 

AFCA has the power to provide an independent solution for individuals and small businesses who have a complaint about a financial product or service.

The Corporations Act 2001 (Cth) gives ASIC the power to oversee AFCA.

 

AFCA’s Complaint Resolution Scheme Rules 13 January 2021

Complaints that AFCA considers.

• Complaints about a Financial Firm that is an AFCA member at the time of that the complaint was submitted to AFCA despite not being an AFCA member during the alleged misconduct.

When AFCA receives a complaint, AFCA will notify the relevant Financial Firm in writing of the complaint.

 

What complaints do AFCA Consider?

• Credit, loans, and finance
• Insurance
• Banking, payments and transactions
• Investments and financial advice
• Superannuation

 

Eligibility

A complaint may be lodged if it is lodged by:

• Consumers, who AFCA define as being an individual.
• Small business with less than 100 employees including a sole trader, a partnership or an incorporated business
• A registered charity
• Club carrying out business with less than 100 employees.

Who are AFCA members?

Some organisations that are required by legislation to be AFCA members include

• Banks and other credit providers
• Superannuation fund trustees
• Financial planning firms
• General insurers
• Insurance broking firms
• Retirement savings account (RSA)
• Stock broking firms
• Fund management companies
• Life insurers

Any other financial firm that holds an Australian Financial Services Licence or Credit Licence or is an Authorised Credit Representative, is required to also be an AFCA member.

Being a member of AFCA ensures that businesses are complying with the licensing requirement of being a member of an external dispute resolution scheme.

 

AFCA Dispute Resolution Process

AFCA complaint resolution process consists of three stages.

1. Registration and Referral stage: the complaint is referred to the financial firm with a time that must respond. This is dependent on the type of complaint.
2. Case Management stage: informal dispute methods are exerted such as negotiation or conciliation. If this is unsuccessful, formal methods may be applied where AFCA may provide a preliminary assessment on the merits of the complaint, or they may make a determination.
3. Decision stage: decisions are made pursuant to the relevant laws, codes of practice and information provided below.

 

Preliminary assessments

This may be provided by AFCA verbally or in writing. These assessments include:

1. Overview of the complaint
2. Issues raised in the complaint and AFCA’s preliminary assessment on these issues.
3. How AFCA think the complaint should be resolved and why.
4. A time provided to respond as to whether a settlement is agreed according to the preliminary assessment. AFCA usually provides 7 days for fast-track complaints, or 30 days for other complaints for parties to respond as to whether they are willing to settle the complaint based on the assessment provided, or whether they want to proceed to determination.

 

Decision makers

A.13 of the AFCA Operational Guidelines to the Rules stipulate that the Chief Ombudsman or their delegate will decide whether the determination should be made by a single Ombudsman or Adjudicator, or by a two- or three person AFCA Panel. This decision is made after considering:

• the complexity of the complaint 
• the amount of loss, as well as other potential consequences of the complaint
• whether the complaint raises a systemic issue
• whether the complaint raises new issues for AFCA of law or good industry practice  
• considerations of efficiency.

 

Determination (binding decision)

Other than by the courts, it is not possible to appeal a determination.

These are further reinforced in the Australian Financial Complaints Authority Operational Guidelines to the rules 1 April 2022.

 

Making a Determination

In the case of a complaint other than Superannuation or Traditional Trustee Company Services, a Determination by an AFCA Decision Maker is final, and is binding upon the parties if accepted by the Complainant within 30 days of receipt of the Determination.

See also Section 1055 Corporations Act 2001.