Can I Make A Complaint About My Bank?
“The short answer is yes. You can complain to the Australian Financial Complaints Authority (AFCA). But only about certain things, and you can only seek certain outcomes.
Sound confusing? It is a little bit.
AFCA was established on 1 November 2018, replacing the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT). According to the AFCA website, it was designed to “provide consumers and small business with fair, free and independent dispute resolution of financial complaints.” (I have explained what is considered a small business in my previous blog “What Does The New Banking Code Of Conduct Mean For Small Business?” which you can find here).
A complaint can be made to AFCA about:
· Credit, finance and loans;
· Banking deposits and payments;
· Investments and finance advice; and
The concepts behind establishing AFCA include it would be able to deal with complaints faster than the previous ombudsman services, it was a central place for consumers to go to complain (making it easier for consumers), and AFCA would be less confusing for consumers.
It is confusing though. The website itself has taken me considerable time to navigate to work out what AFCA can and can’t do, what is needed when lodging a complaint and most importantly, the obligations on a bank once a complaint has been made. I became very familiar with the previous ombudsman service for complaining against a bank, FOS, so I knew what I was looking for. The glaring question in my mind is “how is the average person or business owner supposed to navigate this and have confidence in this complaint process?” I can’t answer that here.
The upshot is complaints against banks can be made to AFCA via the website. Once AFCA becomes involved it will try to negotiate a resolution between the parties. If agreement can’t be reached, it may make a ‘determination’. The complainant needs to agree to the determination for it to be binding (unless the matter relates to superannuation, in which case a determination will be binding regardless of whether the complainant agrees). If the complainant agrees, the bank will be bound by AFCA’s determination.
But what happens if agreement can’t be reached, and you don’t agree with the determination. You are back to where you started and will need to talk to your banking lawyer.
The thing is, once a dispute arises, or once you become aware that you have an issue with your bank, strategy from there can be everything. There can be clauses in your loan contract or facility document (or other related document) that require you to deal directly with your bank and give notice to the bank of your dispute – how you do this can be important. What you do and how you do it can make a significant difference to the way the bank will deal with you, to the options you may have moving forward, and to where you go from there.
My advice – arrange a consultation with your banking lawyer as soon as you are aware of an issue with your bank, or if you think there may be an issue. Seek advice at the earliest opportunity. Don’t underestimate the importance of a well-considered strategy. A complaint to AFCA may be appropriate, but get advice first.
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Tracey Mylecharane - Solicitor
Tracey Mylecharane has more than 12 years experience in legal practice and has been involved in numerous matters with clients who have experienced hardship and difficulty with their banks - this has ranged from simple advice and guidance, to assistance lodging complaints through the ombudsman system, to representing clients in court against banks.