Article written by Andrew Herzig
It is a timely reminder to all during these Covid-19 times of your rights to deal with your bank, insurance provider or financier if an issue arises with respect to their conduct, your inability to pay on time or to vary payments.
A COMPLAINT CAN BE RAISED BY AFCA
The Australian Financial Complaints Authority (AFCA) is a dispute resolution scheme for resolving complaints against financial companies. AFCA could assist you if the need arises. AFCA replaces the Financial Ombudsman Service, the Credit and Investments Ombudsman, and the Superannuation Complaints Tribunal.
AFCA is only available to individuals and small businesses with less than 100 employees. It considers many types of financial complaints, including:
· credit, loans and finance;
· banking payments and transactions;
· investments and financial advice; and
WHAT IS THE PROCESS?
After a complaint is lodged with AFCA, it is typically referred to internal dispute resolution at the financial company which is the subject of the complaint. It is free to participate in this process. If the matter is not resolved, it proceeds through AFCA’s case management process. The processes and timeframes differ depending on whether the complaint is assessed as ‘Fast Track’, ‘Standard & Complex’, or ‘Financial Difficulty’ – however, AFCA’s goal is to resolve most complaints within 90 days from receiving all relevant information regarding the complaint.
AFCA typically resolves complaints through informal methods, such as negotiation and conciliation. However, AFCA can also resolve complaints by providing a ‘preliminary assessment’ – which sets out how AFCA thinks the complaint should be resolved. If the parties do not agree with this assessment, they can proceed to a panel or ombudsman for a ‘determination.’
A ‘determination’ is a binding decision if it is accepted within 30 days – if it is not accepted, you can still pursue a financial complaint through the courts. AFCA will take into account the relevant legal principles, applicable industry codes, and good industry practice in making a ‘determination.’
It is also possible for AFCA to award up to $5,000 for non-financial loss – such as for stress or inconvenience caused by an error of the financial company.
DO I NEED LEGAL REPRESENTATION?
Given the pressure on many businesses of SME size and partnerships and individuals during these Covid-19 times, consideration to making a complaint with AFCA if you believe you are being treated harshly by your Financier or Insurance provider.
AFCA is a free service and is designed so that complaints can be resolved without the need for legal representation. However, we recommend that complainants be legally represented for complex matters. If the matter is complex, AFCA can require the finance or insurance company to reimburse your reasonable legal fees.
You may also be able to avoid the AFCA process by obtaining legal advice early. Recently, a client sought advice regarding an unfair and unreasonable loan payout figure they were quoted by a car finance company. We wrote to the car finance company immediately and secured a 30% reduction of the loan payout figure for our client. Although we did not make a complaint to AFCA on behalf of our client, financial companies are fully aware of AFCA’s process – and they may potentially seek to negotiate an early settlement and avoid any AFCA complaint.
Please contact our Andrew Herzig if you require legal advice regarding a complaint against a financial company.