Financial Services
Ombudsman (Case-Fee and Levy) (Jersey) Regulations 2015
Made 21st January 2015
Coming into force 21st
January 2015
THE STATES, in pursuance of Articles 6 and 26 of, and paragraphs 3 and 4
of Schedule 2 to, the Financial Services Ombudsman (Jersey) Law 2014[1], have made the following
Regulations –
1 Interpretation
In these Regulations –
“budget”
means the budget approved for a year under paragraph 2 of Schedule 2
to the Law;
“fee scheme” has the meaning given by Regulation 2(1);
“financial year” has the meaning given by paragraph 1
of Schedule 2 to the Law;
“Law” means the Financial
Services Ombudsman (Jersey) Law 2014[2];
“levy notice” has the meaning given by Regulation 8(3);
“levy scheme” has the meaning given by Regulation 4(1);
“registered provider” has the meaning given by Regulation 7(3).
2 Fee
scheme: prescription, contents and effects
(1) The
OFSO must prescribe, and may amend, a scheme (the “fee scheme”) of
case-fees payable to the OFSO by respondents in respect of complaints against
them that are referred to the OFSO, in circumstances prescribed in the scheme.
(2) The
OFSO must publish the fee scheme or amendment.
(3) The
fee scheme or amendment does not take effect until a date specified in the fee scheme
or amendment, being a date later than the date of its publication.
(4) The
fee scheme –
(a) must provide for the amount of the case-fee, or of each description
of case-fee, or for the means of calculating that amount;
(b) may do so on any basis appearing to the OFSO to be appropriate;
(c) must provide for the determination of the date by which
payment of a case-fee is due;
(d) may
do so by requiring payment of one or more case-fees at or in respect of any
stage of the handling of a complaint by the OFSO, or at a later date when a
levy is payable by a respondent, or at a date determined by any other means;
(e) may set a rate of interest payable on any amount of a
case-fee remaining outstanding after payment is due;
(f) may provide for the OFSO to waive a case-fee at the OFSO’s
discretion in circumstances specified in the scheme; and
(g) may,
in relation to any or all of sub-paragraphs (a) to (f), make different
provision for different descriptions of complaints, including (without
limitation) descriptions related to whether the respondent in the complaint –
(i) is a registered provider,
(ii) is zero-rated under Regulation 7(4)(a) or (b) for the
levy scheme, or
(iii) has
any other characteristic.
(5) A
respondent to a complaint must, before the date by which payment of a case-fee
is due under the fee scheme in relation to that complaint, pay to the OFSO that
case-fee, determined under the fee scheme in respect of that complaint.
(6) If the
case-fee is not paid in full by that date, the OFSO may recover as a civil debt
from the respondent –
(a) any amount of the case-fee remaining unpaid on that date;
and
(b) any interest accruing on that amount at a rate set by the
fee scheme under paragraph (4)(e).
3 Fee
scheme: consultation
(1) Before
the OFSO prescribes the first fee scheme the Minister must inform the OFSO of the
outcome of any steps taken by the Minister, whether before or after the
commencement of these Regulations, to discuss the potential provisions of that fee
scheme with persons appearing to the Minister appropriate from among financial
service providers and their representatives.
(2) The
OFSO must, subject to paragraph (4) –
(a) take that information into account in prescribing the first
fee scheme;
(b) publish,
with the first fee scheme, the OFSO’s response to that information,
particularly stating reasons for departure from any potential provisions
discussed by the Minister;
(c) after the first fee scheme is published, consult the persons
mentioned in paragraph (3) as to whether any amendment should be made to
the first fee scheme; and
(d) if, in the period of 4 months following publication of
the first fee scheme, the OFSO does not amend that fee scheme as a result of
the consultation, publish its reasons for not doing so.
(3) Before
prescribing any subsequent fee scheme or varying a fee scheme, the OFSO must
consult –
(a) any body appearing to the OFSO to be representative of the
interests of all or any of the descriptions of financial service provider who
may be liable to pay case-fees under the fee scheme; and
(b) any other person appearing to OFSO to be appropriate.
(4) Paragraphs (2)(b),
(2)(c) and (2)(d) do not apply if the OFSO consults on the first fee
scheme as if it was a subsequent fee scheme for the purpose of paragraph (3).
4 Levy
scheme: prescription and publication
(1) The
OFSO must prescribe, and may amend, a scheme (the “levy scheme”)
under which, in any financial year in respect of which the OFSO decides that a
levy is payable –
(a) the liability for a levy is to be divided among those
liable;
(b) the amounts of levy are to be calculated; and
(c) the persons liable are to be notified.
(2) The
OFSO must publish the levy scheme or amendment.
(3) The
levy scheme or amendment does not take effect until a date specified in the levy
scheme or amendment, being a date later than the date of its publication.
5 Levy
scheme: consultation
(1) Before
the OFSO prescribes the first levy scheme the Minister must inform the OFSO of
the outcome of any steps taken by the Minister, whether before or after the
commencement of these Regulations, to discuss the potential provisions of that
scheme with persons appearing to the Minister appropriate from among financial
service providers and their representatives.
(2) The
OFSO must –
(a) take that information into account in prescribing the first levy
scheme;
(b) publish,
with the first levy scheme, the OFSO’s response to that information,
particularly stating reasons for departure from any potential provisions
discussed by the Minister;
(c) after the first levy scheme is published, consult the
persons mentioned in paragraph (6) as to whether any amendment should be
made to the first scheme; and
(d) if, in the period of 4 months following of the first levy
scheme, the OFSO does not amend that scheme as a result of the consultation,
publish its reasons for not doing so.
(3) Before
prescribing any subsequent levy scheme or varying a levy scheme, the OFSO must
consult –
(a) any body appearing to the OFSO to be representative of the
interests of all or any of the descriptions of financial service provider who
may be liable to pay levies under the levy scheme; and
(b) any other person appearing to OFSO to be appropriate.
(4) Paragraphs (2)(b),
(2)(c) and (2)(d) do not apply if the OFSO consults on the first levy
scheme as if it was a subsequent levy scheme for the purpose of paragraph (3).
6 Levy
scheme: calculation of total amount required
(1) The
manner in which the total amount required by the OFSO in levies under these
Regulations for a particular spending year (within the meaning of Regulation 7)
is to be determined is by calculating, using the values obtained under paragraphs (2)
and (3), the result of the formula 
.
(2) For
the purpose of paragraph (1) the value of “X” is to be obtained
by calculating the total of the amounts that the OFSO estimates for that year,
having regard to its budget, as –
(a) the costs, appearing to the OFSO to relate to that year, that
are to be incurred by the OFSO and by the equivalent body under the law of
Guernsey (“the Guernsey body”);
(b) any amount by which it appears to the OFSO to be necessary
that a reserve of the OFSO, or the Guernsey body or both, should be increased
in that year; and
(c) any deficit from the previous year in the funds of the OFSO,
or the Guernsey body or both, after allowing for accumulation of a reserve.
(3) For
the purpose of paragraph (1) the value of “Y” is to be obtained
by calculating the total of the amounts that the OFSO estimates in relation to
that year, having regard to its budget, as –
(a) the income, by way of case-fees, of the OFSO and the
Guernsey body; and
(b) any other income of the OFSO, or the Guernsey body or both, other
than by way of levies; and
(c) any surplus from the previous year in the funds of the OFSO,
or the Guernsey body or both, after allowing for accumulation of a reserve.
(4) For
the purpose of this Regulation the OFSO may, in respect of any calculation –
(a) make its own estimates;
(b) rely on estimates made by the Guernsey body; or
(c) make estimates jointly with the Guernsey body.
(5) For
the purpose of paragraph (2)(a) the costs to be
incurred may, without limitation, include –
(a) the repayment of any loans and payment of interest on loans;
and
(b) the costs of establishing the OFSO and the Guernsey body, as
well as of their operation.
(6) For
the purpose of paragraphs (2) and (3) “reserve” means, in
respect of the OFSO, a reserve accumulated under paragraph 6 of Schedule 2
to the Law and taken into account in the OFSO’s budget under paragraph 2(5)(b)
of that Schedule, and in respect of the Guernsey body any equivalent reserve of
that body.
(7) In
respect of a financial year after 2016, this Regulation applies –
(a) without any of the references to the Guernsey body; and
(b) with the substitution, for the formula in paragraph (1),
of the formula “X – Y”.
7 Levy
scheme: imposition of levy
(1) For
the purpose of this Regulation –
(a) the
assessment year is the financial year by reference to which assessment is to be
made as to whether a person is a financial service provider or will be entitled
to zero-rating or other treatment under the scheme; and
(b) the spending year is the financial year by reference to
which the needs of the OFSO are to be assessed.
(2) A
financial service provider must pay a levy if –
(a) it is a registered provider at any time during an assessment
year;
(b) it is not zero-rated under the levy scheme in accordance
with paragraph (4); and
(c) the OFSO serves a levy notice on it under Regulation 8.
(3) A
registered provider, for the purpose of these Regulations, is a financial
service provider that falls within any one or more of the following
descriptions, in relation to the relevant financial service business carried on
by that provider –
(a) a registered person within the meaning of the Financial
Services (Jersey) Law 1998[3];
(b) a certificate holder within the meaning of the Alternative
Investment Funds (Jersey) Regulations 2012[4];
(c) a registered person within the meaning of the Banking
Business (Jersey) Law 1991[5];
(d) a holder of a permit, or a certificate holder, within the
meaning of the Collective Investment Funds (Jersey) Law 1988[6];
(e) a permit holder within the meaning of the Insurance Business
(Jersey) Law 1996[7];
(f) a registered person within the meaning of the Proceeds of
Crime (Supervisory Bodies) (Jersey) Law 2008[8], being so registered (or
deemed registered) in respect of business falling within paragraph 7(1)(b)
of Part B of Schedule 2 to the Proceeds of Crime (Jersey) Law 1999[9].
(4) The
levy scheme –
(a) must
provide for zero-rating for descriptions of registered provider in respect of
which it appears to the OFSO that any complaint, that could relate to an act in
the assessment year by a registered provider of that description, could not be,
or is for any reason sufficiently unlikely to be, eligible for referral to the
OFSO by virtue of Article 7 of the Law;
(b) may provide for zero-rating for other descriptions of registered
provider;
(c) may provide for different rates or methods of calculation of
levy for different descriptions of registered provider to which zero-rating
does not apply;
(d) may provide that zero-rating, or particular rates or methods
of calculation of levy, do not apply to a registered provider unless that registered
provider –
(i) certifies to the
OFSO, in a manner (including as to timing) prescribed by the levy scheme, that
it falls within a description provided for under sub-paragraph (a), (b)
or (c), or
(ii) if the levy scheme so requires (whether in every case or on
demand, or by any other criteria), so certifies to the OFSO and satisfies the
OFSO, in a manner (including as to timing) prescribed by the levy scheme, that
it falls within that description; and
(e) may
set a rate of interest payable on any amount of levy remaining outstanding
after the date specified in a notice under Regulation 8(3)(d) as the date
by which that levy must be paid.
(5) For
the purpose of paragraph (4)(a) the OFSO must in
particular consider, in relation to any description of registered provider,
whether a provider of that description is unlikely in the assessment year –
(a) to have any required relationships with any persons who
could be eligible complainants; or
(b) to carry on any relevant financial services business at all,
or to do so in or from within Jersey.
(6) For
the purposes of paragraphs (4)(b) and (4)(c), and without prejudice to the
generality of those paragraphs, the descriptions of registered provider may
include descriptions based on whether a person became or ceased to be a registered
provider at any point in the assessment year.
(7) Without
prejudice to the generality of paragraph (4)(c)
and of Regulation 4(1)(a), the levy scheme may divide the liability for a
levy among those liable on any basis –
(a) whether by specifying classes of registered provider according
to types of business carried on by that class, or otherwise; and
(b) whether in proportion to numbers of complaints referred in
relation to each such class, or otherwise.
(8) The
levy scheme must specify whether the levy is calculated –
(a) on the basis that the year of assessment is the spending
year; or
(b) on the basis that the year of assessment is the financial
year preceding the spending year, or a specified previous year.
(9) If
the levy scheme specifies that the basis that the year of assessment is the
spending year, it must also provide for –
(a) how
assessment is to be made as to whether a person will be a financial service
provider at a future date, or will be entitled to zero-rating or other
treatment under the scheme based on future activity; and
(b) whether and how amounts of levy are to be adjusted if such
an assessment turns out not to have been accurate during or at the end of the
spending year.
8 Levy
scheme: notice and appeal
(1) This
Regulation applies in respect of a financial year if the OFSO’s budget
for that year provides, in accordance with paragraph 2(4) to (6) of Schedule 2
to the Law, for the income of the OFSO for that year to include the proceeds of
a levy.
(2) The
OFSO must serve a levy notice on each person from whom, under the levy scheme,
the OFSO is to demand an amount of levy in respect of that year.
(3) A
levy notice is a notice that –
(a) demands payment of an amount of levy in relation to that
year by that person;
(b) is served under the levy scheme as prescribed under Regulation 4(1)(c);
(c) specifies the amount of levy payable, and how that amount was
calculated under the scheme;
(d) specifies the date, being not less than 28 days after
service of the notice, by which the amount must be paid; and
(e) notifies the recipient of the right of appeal under paragraph (5).
(4) If
the OFSO serves a levy notice on a person –
(a) that person must pay in full the amount demanded, by the
date specified under paragraph (3)(d); and
(b) the OFSO may recover as a civil debt from that person –
(i) any amount remaining unpaid on that date, and
(ii) any interest accruing on that amount at a rate set by the
levy scheme under Regulation 7(4)(e).
(5) A
person on whom a levy notice is served, may, before the date specified under paragraph (3)(d),
appeal to the Royal Court against the service of the notice on the ground –
(a) that the person is not a registered provider;
(b) that zero-rating applies to the person under the scheme; or
(c) that amount demanded has not been correctly calculated under
the scheme.
(6) If
a person appeals under paragraph (5), paragraph (4)(b)
does not apply pending the appeal.
(7) The
Royal Court determining an appeal may –
(a) reject the appeal;
(b) order that no amount is to be paid;
(c) order the OFSO to recalculate the amount of levy; or
(d) substitute an amount of levy recalculated by the court, and
make any order it sees fit as to payment.
9 Review
of Regulations during first year
The OFSO must, after consulting persons appearing to OFSO to be
appropriate and before the expiry of 12 months from the commencement of
these Regulations, publish and provide to the Minister –
(a) proposals as to amendment of these Regulations in relation
to future financial years; or
(b) reasons why the OFSO considers that no such amendment would
be expedient.
10 Amendment
of Schedule 2 to the Financial Services Ombudsman (Jersey) Law 2014
After paragraph 2(6) of Schedule 2 to the Law there is
added the following sub-paragraph –
“(7) For the purposes of sub-paragraphs (4)(a) and (5), in relation to the financial years 2014,
2015 and 2016, the references to financial service providers, fees, levy,
resources, OFSO, income, functions and reserve are to be read as including
references to the equivalents of those terms under any law of Guernsey that
establishes an Ombudsman scheme in relation to financial services.”.
11 Citation
and commencement
These Regulations may be
cited as the Financial Services Ombudsman (Case-Fee and Levy) (Jersey) Regulations 2015
and come into force on being made.
m.n. de la haye, o.b.e.
Greffier of the States