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When do the time barring rules apply?

When it comes to complaints, timing is an important factor. As Prince Harry discovered when he had his phone-hacking claim against the Sun thrown out by a judge in 2023, complaints made out of time may not be considered.

If a customer brings a complaint to your door, they usually need to do so within six years of the event. However, the FOS also recognise that it’s possible to remain unaware of a problem until after six years have passed. In such cases, the complaint must be made within three years of the date when the problem was first discovered, or could reasonably have been discovered.

Additionally, the FOS could consider a complaint in the event that “exceptional circumstances” have caused a delay in filing a complaint. And this is where it all becomes a little murky.

Sometimes, the Financial Ombudsman Service bend their own rules

In our experience, if the FOS decide they want to handle a complaint, they will find a reason to interpret time-barred rules and may appear to bend them. Meanwhile, if the FOS prefer not to deal with the complaint, they will adhere rigidly to the law.

The FOS is not bound by the legal principle of precedent and have zero obligation to remain consistent. This flexing of the rules can be very frustrating, and potentially costly.

Unfortunately, we have seen several examples of this. One such case concerned a pension transfer complaint that was directed straight to the FOS.

Although the complaint related to advice given in 2012, unable to rely on the fact that the complaint should be time-barred, we gathered the facts and delivered further indisputable arguments to protect the IFA from costly damages.

In this instance, the complaint was withdrawn without further redress, but there’s little to guarantee that this will always be the case.

As a result, even if you believe that a complaint focuses on events too far in the past to be considered by the FOS, it’s always wise to deliver a rigorous and robust defence, if that is fair in the circumstances.

Whether time-barred complaints are investigated seem to be at the discretion of the Financial Ombudsman Service

With the FOS able to award up to £430,000 from April 2024, and a growing number of speculative complaints from complaint management companies, the livelihoods of hardworking IFAs and wealth managers are becoming increasingly precarious.

Indeed, every day, the FOS are making potentially life-changing judgements that could affect you.

Whatever the timescale, if you’ve received a complaint, your best course of action is to investigate it  fairly (we have a guide on doing just this) and, if appropriate, mount a robust defence.

As professional advisers with more than 50 years’ combined experience of managing compliance and regulatory matters at the very highest of levels, we understand how to effectively manage and resolve complaints.

Get in touch

Jencap Partners ensure a pragmatic approach to dispute resolution. From evaluation of the complaint to the “final response” and beyond, we take care of every aspect of the process. Plus, subject to your PI insurance policy, your legal defence costs may be covered.

If you’d like to find out more about how we can help you resolve a complaint, we’d be delighted to answer your questions.

Please email mail@jencap.partners, book a short call by completing our online form, or call 029 2000 2325.