The Australian Financial Complaints Authority’s powers are being expanded for 12 months: Do you have a claim?

The Australian Financial Complaints Authority (AFCA) is responsible for providing consumers and small businesses with free and independent dispute resolution for financial complaints. AFCA considers complaints in relation to:

• banking deposits and payments;
• credit, finance and loans;
• insurance;
• investments and financial advice; and
• superannuation.

These complaints were previously handled by the Financial Ombudsman Service, the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal.

Time limits to make a complaint

The usual time limit for making a complaint to AFCA is 6 years from the date you became aware of the financial loss.[1] However, when a complaint has already been through the financial firm’s internal dispute resolution process, the time limit is reduced to 2 years from the date you receive response from the internal dispute resolution process.[2]

Expansion of powers

The Australian Government has announced that AFCA’s powers will be expanded for a period of 12 months from 1 July 2019 to 30 June 2020 to allow people to make complaints about financial matters dating back as early as 1 January 2008.

The expansion of AFCA’s powers will give consumers and small businesses a brief opportunity to raise old complaints against financial firms that they did not pursue in the past for whatever reason which are out of time to be dealt with by AFCA under the present rules.

Common complaints

Slater and Gordon are experts in professional negligence claims and resolving disputes with financial firms and institutions such as banks. Some of the common complaints we have seen against financial institutions and advisors include:

Advice received from a financial advisor

Disputes relating to advice received from a financial advisor can arise where:

• the advice given is not in your best interests;
• the advice does not meet your stated objectives; or
• the advice is not suitable for you having regard to your risk profile.

You can ask AFCA to review the advice you received if it has left you in a worse financial position than before you received it. You may be entitled to compensation if AFCA finds that the advice was inappropriate for your circumstances.

For example, a financial services provider who had advised a client to open a self-managed superannuation fund with a corporate trustee was found to have given inappropriate advice because the client had relatively small superannuation balances and the cost of establishing the fund was high.[3]

National Credit Code facilities

The National Credit Code (NCC) (set out in Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth)) contains various rules which govern the way in which credit providers (such as banks) lend credit to consumers. The NCC applies to most credit contracts entered into on or after 1 July 2010 where the credit is provided:[4]

• for personal, domestic or household purposes; or
• to purchase, renovate or improve residential property for investment purposes; or
• to refinance credit previously provided for this purpose.

AFCA regularly deals with complaints relating to the variation of credit contracts due to financial hardship, unjust transactions and unconscionable interest under the NCC.

For example, if a consumer is unable to meet their obligations under a credit contract due to financial hardship, they may request a change to the terms of that contract.[5] In such circumstances, the credit provider is required to respond to the request within a set time limit and provide reasons if the request is denied.[6] A consumer may complain to AFCA if the credit provider does not meet these requirements.

How do you make a complaint to the AFCA?

If you have a financial complaint, you can lodge a complaint online via the AFCA website. AFCA strongly recommends that consumers and small businesses complain directly to their financial firm first as AFCA may automatically refer their complaint to the financial firm’s internal dispute resolution if this has not occurred before proceeding further.

When lodging your complaint, it is important to:

• identify the specific basis of your complaint;
• identify the loss, or type of loss, you have suffered;
• provide copies of relevant documents which support your claim; and
• prepare and lodge a Statement of Financial Position if you are experiencing financial hardship.

How we can help you

Slater and Gordon can help you by:

• Advising you about any financial complaint you have
• Assisting you to negotiate a resolution of a financial complaint
• Providing you with advice about AFCA’s decision about your financial complaint
• Representing you in any subsequent legal proceedings against a financial institution or advisor

You can learn more about our professional negligence services here, or if you have an enquiry about a financial complaint, you can submit an enquiry online.

[1] AFCA Rules Rule B.4.3 a).

[2] AFCA Rules Rule B.4.3 b).

[3] Financial Ombudsman Service, ‘Key determinations – SMSF should not have been established’ (2016) October 27 The Financial Ombudsman Service Circular <https://www.fos.org.au/fos-circular-27-home/fos-forum/key-determination/>.

[4] NCC s 5(1).

[5] Ibid s 72(1).

[6] Ibid s 72(4)-(5).