About Ombudsman Determinations
The Determination Phase
The Ombudsman can make a Determination about the complaint if:
- the complaint is not resolved by the end of the Investigation Phase
- the financial services provider (FSP) has not responded to CIO when required to do so under these Rules, or
- CIO has declared the Investigation Phase completed pursuant to Rule 22.5.
The Credit Ombudsman will generally make its Determination based upon:
- the complaint
- the FSP's response
- the consumer’s reply, and
- information and documents CIO has received during the CIO process, including any advice from suitably qualified people.
The Credit Ombudsman will only carry out further investigation of the complaint if it thinks that it is absolutely necessary to do so to enable a Determination to be made.
The Ombudsman’s Determination of the complaint will be in writing and will include the Ombudsman’s reasons for making the Determination.
Agreement during Determination Phase
If the consumer and the FSP come to an agreement about resolving the complaint during the Determination Phase, and one of the parties asks for it, CIO will prepare a Settlement Agreement.
Both the consumer and the FSP must sign the Settlement Agreement for it to be binding on the FSP.
The Credit Ombudsman can make an Award in terms of the Settlement Agreement to enforce it if the Ombudsman is satisfied that:
- the Settlement Agreement was validly signed by both the consumer and the FSP
- the complaint was one which could be dealt with by the Credit and Investments Ombudsman, and
- the FSP has failed to comply with the Settlement Agreement.
What Determinations the Credit Ombudsman can make
The Credit Ombudsman may, having regard to the principles in Rule 12.1, make a Determination that:
- the FSP pay the consumer compensation for any loss the consumer has suffered up to the monetary compensation limit (plus interest calculated in accordance with Rule 9.5, if applicable)
- the FSP do some act or refrain from doing some act in relation to the subject matter of the complaint, or
- no compensation be paid and no orders made.
If the Credit Ombudsman is not satisfied that the complaint has been made out, the Ombudsman will declare the complaint closed.
The amount of compensation will be what the Ombudsman believes is sufficient but not more than is required to compensate the consumer for their loss as a result of the act or omission of the FSP.
The Ombudsman’s Determination will be binding on an FSP only if the consumer accepts that Determination in full and final settlement of their complaint against the FSP.
In considering whether the Determination should require the FSP to do or refrain from doing some act, the Ombudsman will have regard to what is fair and reasonable to put the consumer and the FSP in the position the consumer and the FSP would have been in were it not for the act or omission of the FSP.
In doing this, the Ombudsman will consider what is fair and reasonable for all parties, including someone who is not a party to the complaint but who might be affected by the Ombudsman’s Determination, e.g. a lender.