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Client’s right to approach Appeal Board

A recent ruling by the FAIS Ombud sheds light on the right of a client to approach the FSB Appeal Board if dissatisfied with a decision by the Ombud.

In the Harten determination, the complainant initially filed a complaint against the respondent relating to how the latter had dealt with his disability cover in a policy with Mutual and Federal Insurance.

The complaint was summarily dismissed on the basis that there was no reasonable prospect of success and both parties were informed.

The complainant thereafter approached the Board of Appeal (the Board) and submitted that the matter be referred back to the Ombud for determination. The complainant also applied for condonation for the late filing of his appeal to the Board. The Board, having considered the complainant’s written submissions, agreed that it would be appropriate for the complaint to be referred back to the Ombud for reconsideration. The Board, in its ruling stated as follows:

  1. There was no final determination in this matter;
  2. This complaint had to be dealt with “where both the complainant and respondent are entitled to submit their case, furnish facts, information and documents in respect of this matter. Thereafter, the Ombud will consider the merits and furnish a determination”; and
  3. The Ombud’s office should proceed with this matter in terms of section 27(4) and (5) of the Act.

After the Board made known its ruling, notices in terms of section 27 of the Act were delivered to the parties. Both parties made comprehensive written representations. This time, the respondent consulted an attorney who made full written representations supported by comprehensive documentation. The parties were given an opportunity to respond to each other’s representations. The Ombud, through its own investigations, gathered further useful information and thereafter the matter became ready for determination. All the information obtained by the Ombud was referred to the parties who were given an opportunity to comment or respond.

Initially, the respondent submitted that the Ombud no longer enjoyed jurisdiction to determine the complaint in that:

  1. The matter was summarily dismissed and in terms of section 27 (1) (a); this amounted to a final determination. Accordingly this office was functus officio; and
  2. The matter became prescribed in terms of section 27(3) (a) (i) of the Act.

In response, the Ombud explained that the matter had not been finally determined on the merits and that the Board referred the matter back to the Ombud for investigation and determination. The Board ruling thus made it competent for the Ombud to investigate and determine the matter, notwithstanding the previous summary dismissal. It was also pointed out, with reference to section 27(3) (a) (ii) that the complaint had not become prescribed. In addition, the respondent was referred to section 27 (2) of the Act which provides as follows:

“Official receipt of a complaint by the Ombud suspends the running of prescription in terms of the Prescription Act, 1969 (Act No. 68 of 1969), for the period after such receipt of the complaint until the complaint has either been withdrawn, or determined by the Ombud or the board of appeal, as the case may be.”

The Ombud therefore reasoned that it was accordingly not time barred from dealing with the complaint.

Ultimately, the respondent and his attorney accepted that the Ombud had jurisdiction to investigate and determine the complaint and provided comprehensive responses to notices in the investigation of the matter.

The actual determination is also quite interesting and will be discussed in Thursday’s Moonstone Monitor.

Click here to read the Harten determination

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