A consistent approach to complaint-handling across the ombud schemes and the amendments that will be introduced by the Conduct of Financial Institutions Bill (COFI) are two of the factors that shaped the Ombud Council’s approach when it drafted the new Rules for the Office of the Pension Funds Adjudicator (OPFA).
The Ombud Council – the statutory regulator of the country’s ombud schemes – last month published the draft Rules for public comment.
According to the explanatory memorandum, the Rules do not expand the Adjudicator’s statutory jurisdiction or impose new compliance burdens but are intended to promote transparency, predictability, and efficiency in line with international ombud standards.
The Rules will come into operation one month after final publication, with no additional transition period beyond the consultation process.
They formalise and clarify procedures that the OPFA already follows under the Pension Funds Act (PFA), while introducing procedural enhancements that align with the Ombud Council’s cross-scheme framework and COFI.
The cross-scheme framework is the Council’s effort to achieve consistency of process and terminology across the ombud schemes, while recognising that they currently operate under different statutes and handle different types of disputes.
COFI will restructure and rationalise conduct regulation across the financial sector, replacing multiple product-based statutes with a unified activity-based licensing regime under the Financial Sector Regulation Act (FSRA).
COFI will relocate the OPFA’s statutory basis from the PFA (which will be renamed the Retirement Funds Act) into Chapter 14 of the FSRA. The Ombud Council will then have a single, consolidated legal mechanism to oversee and standardise all ombud functions. The Council has drafted the Rules to ensure that when the OPFA (which will be renamed the Retirement Funds Ombud) is shifted into the consolidated regime, its procedures will largely comply with the new framework. Further amendments to the Rules may be required once COFI is enacted and consequential amendments to the FSRA have been made.
Last year, the Council finalised the new Rules for the FAIS Ombud, which were issued under section 201 of the FSRA using COFI-ready terminology. The Council’s explanatory memorandum says the OPFA’s Rules were developed within the same COFI-compliant drafting framework so that both sets of Rules will transition smoothly into the new regime.
Two examples of the influence of COFI terminology are how the Rules identify complainants (Rule 3) and the complaints that the OPFA can address (Rule 4).
Rule 3 confirms that an eligible complainant includes the complainant’s lawful successor, dependant, nominee, and authorised representative. The memorandum explains this mirrors COFI’s broader definition of “complainant”, which is expected to apply to all ombud schemes.
Likewise, Rule 4(1)(a) adopts the COFI-inspired language that an “expression of dissatisfaction” is a complaint, and Rule 4(1)(b) clarifies that complaints against funds, administrators, or employers can arise from their agents’ actions.
The Rules cannot conflict with or override the primary provisions of the PFA. Therefore, Rules 3 and 4 do amend the definitions contained in the Act; instead, they focus on specific elements within those definitions, to clarify the types of complainants and complaints that fall within the Adjudicator’s jurisdiction, Leanne Jackson, the Chief Ombud of the Ombud Council, told Moonstone.
Although the draft Rules do not introduce material changes to the OPFA’s complaint-handling processes, stakeholders may find some provisions more noteworthy than others.
Conciliation of complaints
Rule 7 requires the OPFA to consider conciliated settlement in the first instance and at any stage of the complaint process. In practical terms, the Adjudicator “must … consider whether there is a reasonable prospect of resolving a complaint by a conciliated settlement acceptable to all parties”. The conciliator may be an OPFA staff member or an external neutral, and the process must preserve the Adjudicator’s objectivity. Sub-rules 7(3) to (5) establish a written settlement recommendation mechanism whereby a successful conciliation leads to a binding settlement (subject to proof of performance by the parties).
The explanatory memorandum states that Rule 7 is intended to “promote and facilitate the option of conciliated settlements”, reinforcing the Act’s objective of resolving disputes “in a procedurally fair, economical, and expeditious manner”. This aligns with a broader policy trend favouring mediation and conciliation as alternatives to formal adjudication.
Jackson said stakeholder comments on Rule 7 will be particularly interesting. Retirement fund complaints operate within a rigorous legal framework, so the cases dealt with by the OPFA are not directly comparable with those handled by other ombud schemes. The courts have consistently held that a fund is a creature of its registered rules and can do only what its rules require. There’s as not much flexibility to “give a little, take a little”. A fund is either acting in accordance with its rules, or it is not, Jackson said.
The other consideration is that a very high percentage of complaints concern criminal conduct – employers deducting contributions from employees but not paying them over to the fund. Cases about conduct that amounts to contravening legislation and is criminally punishable do not lend themselves to a settlement negotiation, Jackson said.
In the explanatory memorandum, the Ombud Council recognises that mediation or conciliation will not always be appropriate or feasible for the OPFA given the legal framework, and it does not expect the proportion of settlements to approach the rates seen in other ombud schemes.
Nevertheless, Jackson said the Council would like to see a concerted effort to move towards less formal settlements – where the cases permit. Conciliation, as opposed to having to issue a formal determination, is consistent with the spirit of an ombud scheme, she said.
Summary dismissal of complaints
Rule 8 stipulates the grounds for the summary dismissal of a complaint. The Adjudicator may issue a dismissal determination without full investigation if, on an initial review, it is “to the knowledge of the Adjudicator, or on the facts provided by the complainant”, clear that the complaint meets one of four criteria. These grounds are that the complaint:
- has no reasonable prospect of success;
- has already been satisfactorily addressed by the respondent;
- has previously been considered by the Adjudicator; or
- is being pursued in a frivolous, vexatious, or abusive manner.
The Adjudicator may also dismiss a complaint at any later stage if new information reveals one of these circumstances, or deem a matter abandoned if the complainant unreasonably fails to co-operate.
The explanatory memorandum observes that Rule 8 is intended to ensure that complaints that do not warrant a full investigation do not tie up adjudication resources unnecessarily.
Jackson said she is also looking forward to stakeholders’ comments on Rule 8, because there is a view that, on a strict interpretation of the PFA, every complaint requires a full investigation. She said this raises the questions, “What constitutes an investigation?” and “How much investigating must be done?”
In her view, on a proper interpretation, if, on an initial look at the complaint, it is apparent that the complaint will not succeed, it should be appropriate for the Adjudicator to dismiss it.
Rule 8 recognises the circumstances where it is not effective or efficient to spend large amounts of time on “no hope” cases. This is in keeping with international best practice and the rules of the other ombud schemes.
Jackson said Rule 8 does not prejudice complainants, because a complainant can take a decision by the Adjudicator to dismiss a complaint to the Financial Services Tribunal.
Default determinations in the event of a lack of response
Under Rule 9(1), if a party fails to respond within a reasonable time, the Adjudicator may proceed on the evidence available. More specifically, Rule 9(2) provides that after giving the respondent clear notice with deadlines and warning of consequences, if “no response is received” from the respondent, the Adjudicator may issue a default determination as the final outcome. In such cases, the decision may be based solely on the complainant’s submissions and any other available information, provided the Adjudicator considers it sufficient for a fair determination.
The explanatory memorandum states this rule codifies what has been OPFA practice: enabling a default judgment if a respondent declines to engage. Rule 9 ensures that complaints do not stall indefinitely because the respondent is silent.
Costs and interest orders
Rule 10 authorises the Adjudicator to award costs and interest as part of any final determination. Under Rule 10(1), the Adjudicator may grant costs against a respondent or, in cases of improper conduct by the complainant, against the complainant, in favour of the other party. Rule 10(2) sets out the factors the Adjudicator must consider in quantifying costs (for example, time spent, complexity, and inconvenience).
The explanatory memorandum states that this provision aligns the OPFA with the FAIS Ombud and with pending amendments under COFI. It recalls that section 30E(1)(a) of the PFA already empowers the Adjudicator to make any court-available order (including costs and interest). Rule 10 therefore clarifies that in practice the Adjudicator may impose costs. Importantly, sub-rule 10(1) limits costs against complainants to instances of “improper or unreasonable” conduct or inordinate delay. The memorandum makes it clear that costs awards (particularly against complainants) will be exceptional, intended only for “severe instances” of misconduct.
Jackson said the costs rule was included primarily for consistency with other schemes – analogous provisions were incorporated even if they are seldom used. The OPFA is a free service, so she expects cost orders to be rare, reserved for “extreme” cases of abuse or egregious delay.
Regulatory liaison and enforcement co-operation
Rule 14 establishes a formal architecture for the OPFA’s co-operation with the Financial Sector Conduct Authority, the Ombud Council, and other recognised ombud schemes, codifying arrangements that previously operated largely on an informal basis.
Under Rule 14(1) and (2), the Adjudicator must advise the FSCA of any material contravention of these Rules or any persistent or material failure to co-operate with the Adjudicator by a regulated entity and must inform the entity concerned that such notification has been made. The explanatory memorandum describes this as a mechanism to operationalise regulatory feedback loops contemplated by section 217 of the FSRA.
Jackson said the provision turns long-standing practice into a rule-based obligation. The PFA has always referred serious non-compliance to the FSCA, particularly where an employer fails to pay contributions, but Rule 14 now makes that process transparent and obligatory.
This is most clearly seen in Rule 14(6), which requires the Adjudicator to report every material contravention of section 13A of the PFA (failure to remit contributions) to the FSCA, to share information with law-enforcement agencies where appropriate, and – where the facts are already public – to publish the identities of defaulting funds or employers.
The explanatory memorandum characterises this as a “significant enhancement intended to support enforcement and deterrence objectives”, enabling closer alignment between the adjudicatory and supervisory arms of the financial sector framework.
Although the PFA criminalises other contraventions of the Act, the Ombud Council deemed it appropriate for the Rule to refer specifically to section 13A because of the prevalence and impact of this conduct, Jackson said. “It’s to try and contribute to the efforts that the FSCA and others are making to stop this awful behaviour or at least create consequences for it.”
Comments on the draft Rules must be submitted on this template by Friday, 14 November 2025.
