Teal blue header image

FCA plans for extending FOS jurisdiction in APP frauds

On the 26 June 2018 the Financial Conduct Authority (FCA) published a consultation paper (CP18/16) setting out its proposed changes to its Dispute Resolution: Complaints Sourcebook (DISP) in relation to victims of authorised push payment (APP) fraud

Background

The FCA is concerned that APP fraud is increasing. At present victims of APP fraud cannot complain to the Financial Ombudsman Service (FOS) about the Payment Service Provider (PSP) receiving their payment where their own PSP is not at fault. The FCA is therefore consulting on:
(1) whether to require firms to handle these complaints in line with DISP, and
(2) a proposal to allow eligible complainants to refer these complaints to the FOS if they are unhappy with the outcome reached by the receiving PSP, or if they have not received a response to the complaint at all.

The consultation is part of an ongoing industry response to the Which? super-complaint to the Payment Systems Regulator (PSR) and the FCA regarding measures to safeguard consumers against APP fraud. The proposals are intended to be in addition to the work carried out by the PSR.

Consultation

The key points of the consultation are as follows:

  • The FCA proposes to require PSPs who receive the payment to handle complaints in line with the DISP sourcebook complaint handling rules, and allow eligible complainants to refer their complaints to the FOS.
  • To accommodate this, the FCA proposes to extend the jurisdiction of the FOS so it can consider complaints against third parties for acts or omissions from 1 January 2019. The industry code currently being developed by the PSR would be a relevant consideration for the FOS when determining these complaints.
  • The FOS is willing to consider other suggestions for extending its voluntary jurisdiction to include complaints about other kinds of fraud. The FOS has asked for views on whether this is something firms would want.
  • The Payment Services Directive 2 (PSD2) requires the receiving PSP to co-operate with the payer's PSP to recover funds if the account details the payer provides are incorrect. PSD2 also requires that disputes between payment service users and PSP concerning a PSP's obligations under Titles III and IV of PSD2 can be considered by an Alternative Dispute Resolution scheme. The FOS has asked for views on whether these complaints should be bought within the compulsory or voluntary jurisdiction of the FOS.

The proposed changes would be facilitated by amendments to the DISP sourcebook and the Glossary of the FCA handbook.

Comment

This consultation, along with the PSR report, increases the mounting pressure on PSPs to alter the way in which they handle APP fraud. If the proposed changes are implemented there will be greater obligations on receiving PSPs to respond to complaints and may require PSPs to increase security measures by carrying out further checks on account opening.

The FCA invites comments on the consultation by 26 September 2018, with final rules to take effect in January 2019.

For more information please contact Richard Hayllar (Partner), Warren Clark (Partner), Alanna Tregear (Associate) or Emma Davey (Trainee Solicitor).

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Insights & events View all