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130 | Orders under section 128 |
| |
(1) | An interested body may, at any time, recommend to the Lord Chancellor that |
| |
the Lord Chancellor make an order under section 128(3)(b), (4)(d) or (5)(c). |
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(2) | An interested body must, if requested to do so by the Lord Chancellor, |
| |
consider whether or not it is appropriate to make a recommendation under |
| 5 |
| |
(3) | An interested body must, before making a recommendation under subsection |
| |
| |
(a) | publish a draft of the proposed recommendation, |
| |
(b) | invite representations regarding the proposed recommendation, and |
| 10 |
(c) | consider any such representations which are made. |
| |
(4) | Where the Lord Chancellor receives a recommendation under subsection (1), |
| |
the Lord Chancellor must consider whether to follow the recommendation. |
| |
(5) | If the Lord Chancellor decides not to follow the recommendation, the Lord |
| |
Chancellor must publish a notice to that effect which includes the Lord |
| 15 |
Chancellor’s reasons for the decision. |
| |
(6) | In this section “interested body” means— |
| |
| |
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| 20 |
131 | Acts and omissions by employees etc |
| |
(1) | For the purposes of this Part and the ombudsman scheme, any act or omission |
| |
by a person in the course of the person’s employment is to be treated as also an |
| |
act or omission by the person’s employer, whether or not it was done with the |
| |
employer’s knowledge or approval. |
| 25 |
(2) | For the purposes of this Part and the ombudsman scheme, any act or omission |
| |
by a partner in a partnership in the course of carrying on, in the usual way, |
| |
business of the kind carried on by the partnership is to be treated as also an act |
| |
or omission by the partnership. |
| |
(3) | But subsection (2) does not apply if the partner had no authority to act for the |
| 30 |
partnership and the person purporting to rely on that subsection knew, at the |
| |
time of the act or omission, that the partner had no such authority. |
| |
132 | Continuity of complaints |
| |
(1) | The ability of a person to make a complaint about an act or omission of a |
| |
partnership or other unincorporated body is not affected by any change in the |
| 35 |
membership of the partnership or body. |
| |
(2) | Scheme rules must make provision determining the circumstances in which, |
| |
for the purposes of the ombudsman scheme, an act or omission of a person |
| |
(“A”) is, where A ceases to exist and another person (“B”) succeeds to the whole |
| |
or substantially the whole of the business of A, to be treated as an act or |
| 40 |
| |
(3) | Rules under subsection (2) must, in relation to cases where an act or omission |
| |
of A is treated as an act or omission of B, make provision about the treatment |
| |
| |
| |
|
| |
| |
of complaints under the ombudsman scheme which are outstanding against A |
| |
at the time A ceases to exist. |
| |
(4) | Scheme rules must make provision permitting such persons as may be |
| |
specified in the rules to continue a complaint made by a person who has died |
| |
or is otherwise unable to act; and for that purpose may modify references to the |
| 5 |
complainant in this Part and in scheme rules. |
| |
133 | Operation of the ombudsman scheme |
| |
(1) | Scheme rules must set out the procedure for— |
| |
(a) | the making of complaints under the ombudsman scheme, and |
| |
(b) | the investigation, consideration and determination of complaints by an |
| 10 |
| |
| |
(a) | must provide that a complaint is to be entertained under the |
| |
ombudsman scheme only if the complainant has made the complaint |
| |
under that scheme before the applicable time limit (determined in |
| 15 |
accordance with the scheme rules) has expired, and |
| |
(b) | may provide that an ombudsman may extend that time limit in |
| |
| |
(3) | Scheme rules made under subsection (1) may (among other things) make |
| |
| 20 |
(a) | for the whole or part of a complaint to be dismissed, in specified |
| |
circumstances, without consideration of its merits; |
| |
(b) | for the reference of a complaint, in specified circumstances and with the |
| |
consent of the complainant, to another body with a view to it being |
| |
determined by that body instead of by an ombudsman; |
| 25 |
(c) | for a person who, at the relevant time (within the meaning of section |
| |
128(7)) was an authorised person in relation to an activity to be treated |
| |
in specified circumstances, for the purposes of the scheme and this Part, |
| |
as if that person were a co-respondent in relation to a complaint; |
| |
(d) | about the evidence which may be required or admitted and the extent |
| 30 |
to which it should be oral or written; |
| |
(e) | for requiring parties to the complaint to attend to give evidence and |
| |
produce documents, and for authorising the administration of oaths by |
| |
| |
(f) | about the matters which are to be taken into account in determining |
| 35 |
whether an act or omission was fair and reasonable; |
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(g) | for an ombudsman, in such circumstances as may be specified, to |
| |
award expenses to persons in connection with attendance at a hearing |
| |
| |
(h) | for an ombudsman to award costs against the respondent in favour of |
| 40 |
| |
(i) | for an ombudsman to award costs against the respondent in favour of |
| |
the OLC for the purpose of providing a contribution to resources |
| |
deployed in dealing with the complaint if— |
| |
(i) | the complaint against the respondent is determined or |
| 45 |
otherwise resolved substantially in favour of the complainant, |
| |
| |
| |
| |
|
| |
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(ii) | in the ombudsman’s opinion the respondent failed to deal with |
| |
the complaint in accordance with the regulatory arrangements |
| |
which the relevant approved regulator has made under section |
| |
| |
(j) | for an ombudsman to award costs against the complainant or the |
| 5 |
respondent in favour of the OLC for the purpose of providing a |
| |
contribution to resources deployed in dealing with the complaint, if in |
| |
the ombudsman’s opinion that person acted so unreasonably in |
| |
relation to the complaint that it is appropriate in all the circumstances |
| |
of the case to make such an award; |
| 10 |
(k) | for the purpose of facilitating the settlement of a complaint with the |
| |
agreement of the parties to it; |
| |
(l) | for specified persons to be notified of complaints, determinations and |
| |
directions under the ombudsman scheme. |
| |
(4) | The circumstances specified under subsection (3)(a) may include the |
| 15 |
| |
(a) | the ombudsman considers the complaint or part to be frivolous or |
| |
vexatious or totally without merit; |
| |
(b) | the ombudsman considers that the complaint or part would be better |
| |
dealt with under another ombudsman scheme, by arbitration or by |
| 20 |
| |
(c) | the ombudsman considers that there has been undue delay in the |
| |
making of the complaint or part, or the provision of evidence to support |
| |
| |
(d) | the ombudsman is satisfied that the matter which is the subject of the |
| 25 |
complaint or part has previously been dealt with under another |
| |
ombudsman scheme, by arbitration or by other legal proceedings; |
| |
(e) | the ombudsman considers that there are other compelling reasons why |
| |
it is inappropriate for the complaint or part to be dealt with under the |
| |
| 30 |
(5) | No person may be required by scheme rules— |
| |
(a) | to provide any information or give any evidence which that person |
| |
could not be compelled to provide or give in evidence in civil |
| |
proceedings before the High Court, or |
| |
(b) | to produce any document which that person could not be compelled to |
| 35 |
produce in such proceedings. |
| |
(6) | Scheme rules may authorise an ombudsman making an award of costs in |
| |
accordance with rules within subsection (3)(h), (i) or (j) to order that the |
| |
amount payable under the award bears interest, from a time specified in or |
| |
determined in accordance with the order, at a rate specified in or determined |
| 40 |
in accordance with the rules. |
| |
(7) | An amount due under an award made in favour of a person by virtue of |
| |
provision made under subsection (3)(g), (h) or (j) is recoverable as a debt due |
| |
| |
| 45 |
“party”, in relation to a complaint, means— |
| |
| |
| |
| |
| |
|
| |
| |
(c) | any other person who in accordance with scheme rules is to be |
| |
regarded as a party to the complaint; |
| |
“specified” means specified in scheme rules. |
| |
134 | Delegation of an ombudsman’s functions |
| |
(1) | An ombudsman may delegate to a member of the OLC’s staff appointed under |
| 5 |
paragraph 11 of Schedule 15— |
| |
(a) | any function of the ombudsman in relation to the making, investigation |
| |
or consideration of a complaint; |
| |
(b) | any other function conferred on the ombudsman by or by virtue of this |
| |
| 10 |
(2) | Nothing in subsection (1) applies to the following functions— |
| |
(a) | the function of determining a complaint; |
| |
(b) | the function of deciding that a complaint should be dismissed by virtue |
| |
of rules under section 133(3)(a); |
| |
(c) | the Chief Ombudsman’s power to consent to the appointment of an |
| 15 |
assistant ombudsman under section 122; |
| |
(d) | the duties imposed on the Chief Ombudsman by section 123 (Chief |
| |
| |
135 | Notification requirements |
| |
(1) | This section applies where a complaint— |
| 20 |
(a) | is excluded from the jurisdiction of the ombudsman scheme under |
| |
section 126, or by virtue of scheme rules made under section 127; |
| |
(b) | is dismissed, or referred to another body, by virtue of scheme rules; |
| |
(c) | is settled, withdrawn or abandoned (or treated as withdrawn or |
| |
abandoned by virtue of scheme rules). |
| 25 |
(2) | The ombudsman must notify— |
| |
| |
| |
(c) | any relevant authorising body, in relation to the respondent, notified of |
| |
the complaint in accordance with rules within section 133(3)(l), |
| 30 |
| and, in a case within subsection (1)(a) or (b), must give reasons for the |
| |
exclusion, dismissal or referral. |
| |
136 | Charges payable by respondents |
| |
(1) | Scheme rules must require respondents, in relation to complaints under the |
| |
ombudsman scheme, to pay to the OLC such charges as may be specified in the |
| 35 |
| |
(2) | The rules must provide for the OLC to reduce or waive a charge in |
| |
| |
(a) | the complaint relates to activity undertaken otherwise than for reward, |
| |
| 40 |
(b) | it appears to the OLC that the amount of a charge, unless reduced or |
| |
waived, would be disproportionate having regard to the gravity or |
| |
nature of the complaint, the value (if any) of the subject matter of the |
| |
| |
| |
|
| |
| |
activity to which it relates, or the consideration payable for the services |
| |
used by the complainant which consist of or include that activity, or |
| |
(c) | it appears to the OLC that the amount of a charge, unless reduced or |
| |
waived, would cause the respondent undue hardship. |
| |
(3) | The rules must also provide for the refund of the whole or part of a charge |
| 5 |
where circumstances coming to the OLC’s attention since the charge was paid |
| |
are such that it appears to the OLC that the amount of the charge, unless wholly |
| |
| |
(a) | is disproportionate having regard to the gravity or nature of the |
| |
complaint, the value (if any) of the subject matter of the activity to |
| 10 |
which it relates, or the consideration payable for the services used by |
| |
the complainant which consist of or include that activity, or |
| |
(b) | causes the respondent undue hardship. |
| |
(4) | Scheme rules must provide that any charge in relation to a complaint shall not |
| |
become payable by a respondent unless the complaint is determined or |
| 15 |
otherwise resolved substantially in favour of the complainant. |
| |
(5) | The rules may, among other things— |
| |
(a) | provide for the OLC to reduce or waive a charge in a particular case |
| |
(other than one to which rules pursuant to subsection (2) apply); |
| |
(b) | set different charges for different stages of the proceedings on a |
| 20 |
| |
(c) | provide for charges to be refunded in specified circumstances (other |
| |
than circumstances in which rules pursuant to subsection (3) apply); |
| |
(d) | provide that if the whole or any part of a charge is not paid by the time |
| |
by which it is required to be paid under the rules, the unpaid balance |
| 25 |
from time to time carries interest at the rate specified in, or determined |
| |
in accordance with, the rules. |
| |
(6) | Any charge which is owed to the OLC by virtue of rules made under this |
| |
section may be recovered as a debt due to the OLC. |
| |
Determinations under the scheme |
| 30 |
137 | Determination of complaints |
| |
(1) | A complaint is to be determined under the ombudsman scheme by reference |
| |
to what is, in the opinion of the ombudsman making the determination, fair |
| |
and reasonable in all the circumstances of the case. |
| |
(2) | The determination may contain one or more of the following— |
| 35 |
(a) | a direction that the respondent make an apology to the complainant; |
| |
| |
(i) | the fees to which the respondent is entitled in respect of the |
| |
services to which the complaint relates (“the fees”) are limited |
| |
to such amount as may be specified in the direction, and |
| 40 |
(ii) | the respondent comply, or secure compliance, with such one or |
| |
more of the permitted requirements as appear to the |
| |
ombudsman to be necessary in order for effect to be given to the |
| |
direction under sub-paragraph (i); |
| |
(c) | a direction that the respondent pay compensation to the complainant of |
| 45 |
such an amount as is specified in the direction in respect of any loss |
| |
| |
| |
|
| |
| |
which has been suffered by, or any inconvenience or distress which has |
| |
been caused to, the complainant as a result of any matter connected |
| |
| |
(d) | a direction that the respondent secure the rectification, at the expense |
| |
of the respondent, of any such error, omission or other deficiency |
| 5 |
arising in connection with the matter in question as the direction may |
| |
| |
(e) | a direction that the respondent take, at the expense of the respondent, |
| |
such other action in the interests of the complainant as the direction |
| |
| 10 |
(3) | For the purposes of subsection (2)(b) “the permitted requirements” are— |
| |
(a) | that the whole or part of any amount already paid by or on behalf of the |
| |
complainant in respect of the fees be refunded; |
| |
(b) | that the whole or part of the fees be remitted; |
| |
(c) | that the right to recover the fees be waived, whether wholly or to any |
| 15 |
| |
| |
(a) | a direction is made under subsection (2)(b) which requires that the |
| |
whole or part of any amount already paid by or on behalf of the |
| |
complainant in respect of the fees be refunded, or |
| 20 |
(b) | a direction is made under subsection (2)(c), |
| |
| the direction may also provide for the amount payable under the direction to |
| |
carry interest from a time specified in or determined in accordance with the |
| |
direction, at the rate specified in or determined in accordance with scheme |
| |
| 25 |
(5) | The power of the ombudsman to make a direction under subsection (2) is not |
| |
confined to cases where the complainant may have a cause of action against the |
| |
respondent for negligence. |
| |
138 | Limitation on value of directions under the ombudsman scheme |
| |
(1) | Where a determination is made under the ombudsman scheme in respect of a |
| 30 |
complaint, the total value of directions under section 137(2)(c) to (e) contained |
| |
in the determination must not exceed £20,000. |
| |
(2) | For this purpose the total value of such directions is the aggregate of— |
| |
(a) | the amount of any compensation specified in a direction under |
| |
subsection (2)(c) of section 137, and |
| 35 |
(b) | the amount of any expenses reasonably incurred by the respondent |
| |
when complying with a direction under subsection (2)(d) or (e) of that |
| |
| |
(3) | For the purposes of determining that total value, any interest payable on an |
| |
amount within subsection (2)(a) of this section, by virtue of section 137(4), is to |
| 40 |
| |
| |
(1) | The Lord Chancellor may by order amend section 138(1) in accordance with a |
| |
recommendation made by an interested body under subsection (2). |
| |
| |
| |
|
| |
| |
(2) | An interested body may, at any time, recommend to the Lord Chancellor that |
| |
section 138(1) should be amended so as to substitute the amount specified in |
| |
the recommendation for the amount for the time being specified in that |
| |
| |
(3) | An interested body must, if requested to do so by the Lord Chancellor, |
| 5 |
consider whether or not it is appropriate to make a recommendation under |
| |
| |
(4) | An interested body must, before making a recommendation under subsection |
| |
| |
(a) | publish a draft of the proposed recommendation, |
| 10 |
(b) | invite representations regarding the proposed recommendation, and |
| |
(c) | consider any such representations which are made. |
| |
(5) | Where the Lord Chancellor receives a recommendation under subsection (2), |
| |
the Lord Chancellor must consider whether to follow the recommendation. |
| |
(6) | If the Lord Chancellor decides not to follow the recommendation, the Lord |
| 15 |
Chancellor must publish a notice to that effect which includes the Lord |
| |
Chancellor’s reasons for the decision. |
| |
(7) | In this section “interested body” means— |
| |
| |
| 20 |
| |
140 | Acceptance or rejection of determination |
| |
(1) | When an ombudsman has determined a complaint the ombudsman must |
| |
prepare a written statement of the determination. |
| |
| 25 |
(a) | give the ombudsman’s reasons for the determination, |
| |
(b) | be signed by the ombudsman, and |
| |
(c) | require the complainant to notify the ombudsman, before a time |
| |
specified in the statement (“the specified time”), whether the |
| |
complainant accepts or rejects the determination. |
| 30 |
(3) | The ombudsman must give a copy of the statement to— |
| |
| |
| |
(c) | any relevant authorising body in relation to the respondent. |
| |
(4) | If the complainant notifies the ombudsman that the determination is accepted |
| 35 |
by the complainant, it is binding on the respondent and the complainant and |
| |
| |
(5) | If, by the specified time, the complainant has not notified the ombudsman of |
| |
the complainant’s acceptance or rejection of the determination, the |
| |
complainant is to be treated as having rejected it. |
| 40 |
| |
(a) | the complainant notifies the ombudsman after the specified time that |
| |
the determination is accepted by the complainant, |
| |
| |
| |
|
