The Independent Assessor reviews complaints about the standard of service provided by the Australian Financial Complaints Authority (AFCA) in resolving complaints.
The Independent Assessor works independently of AFCA’s internal complaints process and considers complaints on a case-by-case basis. The Independent Assessor does not have the power to review the merits or substance of an AFCA decision.
Complainants, representatives and financial firms who are affected by how AFCA has dealt with a complaint may lodge a complaint with the Independent Assessor. Before you make a complaint to the Independent Assessor, AFCA must have had a reasonable opportunity to respond to the complaint through its internal complaints and feedback process.
Before submitting a complaint, please read these frequently asked questions.
- Who is the Independent Assessor?
- What are the Independent Assessor’s Terms of Reference?
- Who can complain to the Independent Assessor?
- When can the Independent Assessor consider a complaint?
- What might constitute exceptional circumstances?
- What complaints can the Independent Assessor assess?
- What complaints can’t the Independent Assessor assess?
- How will the Independent Assessor assess your complaint?
- What outcomes are possible?
- How much compensation can the Independent Assessor award?
- Can you appeal the Independent Assessor’s findings?
- How can I make a complaint to the Independent Assessor?
Who is the Independent Assessor?
The Independent Assessor is appointed by, and reports to, the AFCA Board and works in accordance with the Independent Assessor’s Terms of Reference. The Independent Assessor is not part of the day-to-day running of AFCA and does not answer to AFCA’s senior management or Chief Ombudsman.
The Independent Assessor reports on issues affecting AFCA’s complaint handling performance and can make recommendations to AFCA in response to issues arising from service complaints.
The current Independent Assessor of AFCA is Melissa Dwyer. Melissa has over 20 years’ experience as a senior executive in the private, public and not-for-profit sectors, specialising in governance, internal audit and integrity reform. She was the Victorian Department of Education and Training’s Chief Audit Executive and architect of its integrity reform program following investigations by the Independent Broad-based Anti-corruption Commission (IBAC).
Melissa’s qualifications include a Bachelor of Arts, Bachelor of Commerce and a Masters in Professional and Applied Ethics (Dean’s honours list), all from the University of Melbourne.
What are the Independent Assessor’s Terms of Reference?
The Independent Assessor Terms of Reference (ToR) are approved by the Australian Securities and Investments Commission (ASIC) and are separate from AFCA’s Rules. The ToR sets out the scope of the Independent Assessor’s role and the process for dealing with a complaint, including:
- the types of complaints the Independent Assessor can consider;
- the complaint process;
- the remedies the Independent Assessor can recommend; and
- the process to be followed when the Chief Ombudsman of AFCA disagrees with the Independent Assessor’s recommendations.
Who can complain to the Independent Assessor?
Any person or business directly affected by how AFCA deals with a complaint against a financial firm can complain to the Independent Assessor, including:
- financial firms
- joined parties.
When can the Independent Assessor consider a complaint?
The Independent Assessor can consider a complaint provided the following criteria is met:
- the related complaint between the complainant and the financial firm is closed (unless exceptional circumstances exist), and;
- AFCA has had a reasonable opportunity to consider and respond to the complaint through its internal complaints and feedback process, and;
- the complaint is submitted within three months of receiving AFCA’s response to the complaint.
What might constitute exceptional circumstances?
In most circumstances the Independent Assessor will only consider a complaint after the case with the financial firm is closed. However, in exceptional circumstances, the Independent Assessor can request AFCA to put its investigation on hold, while she considers the service complaint.
The Independent Assessor will consider exceptional circumstances on a case-by-case basis. By definition, exceptional circumstances are rare and unusual.
Exceptional circumstances should relate to the service complaint itself, rather than the circumstances of the complaint against the financial firm.
Objections to a preliminary assessment, including objections about the fairness or impartiality of the decision, do not amount to exceptional circumstances. These complaints should be directed to AFCA for its consideration in determining the matter.
What complaints can the Independent Assessor assess?
The Independent Assessor can assess complaints about the standard of service provided by AFCA in handling a complaint, including, but not limited to, complaints about:
- the professionalism, competence and attitude of staff;
- fairness and impartiality;
- adherence to AFCA’s process.
What complaints can’t the Independent Assessor assess?
The Independent Assessor deals with complaints about the standard of service provided by AFCA. Complaints the Independent Assessor cannot assess include those about:
- the actions or inactions of a financial firm
- decisions or findings by AFCA, including preliminary assessments, determinations and jurisdictional decisions
- AFCA’s handling of a systemic issue
- AFCA’s fees.
The Independent Assessor cannot change or overturn a determination or jurisdictional decision. The Independent Assessor is not an appeal or review mechanism for a decision or judgements on the facts or merits of a dispute.
In addition, the Independent Assessor will not assess a complaint that is:
- the same as a complaint previously addressed by the Independent Assessor;
- frivolous, vexatious or malicious.
How will the Independent Assessor assess your complaint?
Your complaint will be reviewed against the Independent Assessor’s Terms of Reference to ensure it falls within the Independent Assessor’s jurisdiction to assess.
The Independent Assessor’s office will write to you to confirm what will be assessed and may ask for more information from you and/or AFCA.
After considering the information and submissions provided by you and AFCA about your service complaint, the Independent Assessor will provide you and AFCA with a written assessment of your complaint, setting out the reasons why it was or was not substantiated.
What outcomes are possible?
If the Independent Assessor finds that AFCA has not met its service standards in the handling of your complaint, she may make a recommendation to AFCA’s Chief Ombudsman. Recommendations may include that AFCA:
- apologise for the poor service
- pay you an amount of non-financial compensation for any distress or inconvenience caused by the poor service
- take other action.
The Independent Assessor cannot make a recommendation to the Chief Ombudsman that AFCA re-open, change or correct a determination or other finding issued by AFCA about the merits of a complaint against a financial firm or AFCA’s jurisdiction.
How much compensation can the Independent Assessor award?
If the Independent Assessor recommends that AFCA pay compensation, a conservative approach is taken.
Compensation will be equivalent to what AFCA might award a complainant for non-financial loss against a financial firm in similar circumstances, under the AFCA Rules clause D.3.3.
The Independent Assessor cannot award compensation for financial loss or punitive, exemplary or aggravated damages.
Can you appeal the Independent Assessor’s findings?
There is no further appeal against the Independent Assessor’s findings and recommendations.
How can I make a complaint to the Independent Assessor?
The Independent Assessor’s office generally deals with complaints in writing.
Complaints to the Independent Assessor can be submitted electronically via the online form, or you can download, print and complete the form and submit it by post to:
Australian Financial Complaints Authority
GPO Box 3
MELBOURNE VIC 3001