Often we will work to resolve a complaint with the parties by helping them negotiate a settlement. This may involve us exchanging settlement offers and discussing them with each party. To assist negotiations, we may provide guidance about the type of outcome that might occur through AFCA if a settlement is not negotiated and the complaint proceeds to determination. Show ConciliationSometimes we will hold a telephone conciliation conference with both parties. This is conducted informally. It provides the parties with a chance to hear the other’s perspective in a conversation facilitated by us. During a conciliation we will normally provide the parties with guidance on the issues raised in the complaint and what outcome might be provided if the complaint proceeded to Determination. If negotiations or a conciliation conference do not achieve an agreed settlement, we will decide the complaint. Formal methods to resolve complaintsIf informal methods to resolve a complaint don’t work, or there is a reason to progress the matter without conducting any negotiations or conciliation with the parties, we will make a decision on the merits of the complaint (also referred to as a determination). Often we will provide the parties with a preliminary assessment before making a binding decision. Sometimes, however, we proceed very quickly to make a binding decision. Preliminary assessmentWe may provide a preliminary assessment verbally or in writing. A preliminary assessment includes:
Typically, we will give the parties seven days (for fast track complaints) or 30 days (for other complaints) to tell us whether they are willing to settle a complaint based on the preliminary assessment we have provided or, alternatively, whether they want the complaint to proceed to a determination. Determination (a binding decision)A determination is the final stage in our complaint resolution process. For complaints not relating to superannuation and a regulated superannuation fund, you may choose to accept the decision we make, or not. Other than by reference to the courts, it is not possible to appeal a determination. When determining a complaint, the AFCA decision maker must do what is fair in all the circumstances, and take into account:
There are different decision-making requirements for superannuation complaints. Please refer to our Operational Guidelines for more information about this. In summary though, when determining a superannuation complaint, the AFCA decision maker must consider whether the original decision made by a trustee, insurer, RSE provider or other person was fair and reasonable in all the circumstances. If we are satisfied that the trustee’s decision was fair and reasonable in relation to the complainant (and, in the case of a decision about payment of a death benefit, all joined parties) in the circumstances, we must affirm the original decision. Find out more about how we make decisions A determination will be made in writing, and will outline the reasons for the decision. Any remedy that we award, whether it be monetary compensation or some other remedy will also be included. The financial firm is required to comply with our decision, if you choose to accept it. The determination will set out:
If you accept our determination, the financial firm must provide any remedy in the determination within the timeframe we have stated. Determinations for superannuation complaints, however, normally come into effect immediately once they are made, and do not require you to accept the determination. If a financial firm does not comply with a determination, we are required to report this to ASIC. For non-superannuation complaints, if you choose not to accept our determination, you have a right to pursue your claim against the financial firm through the courts. If you accept the determination the complaint will normally resolve on the basis set out in the determination, but if for some reason you become dissatisfied with this outcome and wish to take your matter to another forum, you should seek legal advice. Closing or withdrawing a complaintClosingWe may decide that it is not appropriate to continue considering your complaint. This could be because you haven’t suffered a loss, or you have already been appropriately compensated or the financial firm hasn’t committed an error. We will not exercise our discretion to exclude a complaint lightly. It will only be used in cases where there are compelling reasons for deciding that we should not consider or further consider a complaint. If we decide to close your complaint, we will inform you and the financial firm in writing with reasons. You are able to object if we advise that we have exercised our discretion to not further consider your complaint. If you object, we will formally review and consider your objection. WithdrawingYou may, at any stage, tell us that you do not want to continue with your complaint. We may also conclude that you want to withdraw your complaint if you fail to respond to us when we ask you to contact us and provide information. In either case, we are unlikely to re-open a complaint unless special circumstances warrant further consideration of the complaint. Our Rules and Operational Guidelines provide further information about closing and withdrawing complaints. Note: This text is reproduced, based or adapted from AFCA's Operational Guidelines.
Insurance claims can take a long time to finalise when you’re waiting for a decision to be made by the insurance company. Here we explain your rights in terms of information that you can request and how to lodge a dispute if that is required. EXAMPLE CASEKaren was involved in an accident where she was not the at-fault driver. She is claiming on the at-fault driver’s insurance policy. She’s called, and nothing. Weeks go by. Someone always promises to call back but never does. They want more information and documents. Karen is not pleased. So what should Karen do?Lodge a dispute! Karen has been waiting for more than three weeks, but after two she could have lodged a dispute. Insurers don’t like disputes, so it’ll put your case on someone’s desk to hurry it along. There are also rules for how long an insurer can take to make a decision on a claim. How to lodge a disputeIf we are handling your case, we can deal with this on your behalf. If you’re going it alone, here’s the process. Step 1: Internal dispute resolutionEvery insurance company has a dispute’s handling department. You can call the insurer and lodge a dispute, telling them you have a dispute or complaint regarding the delay on your claim. The General Insurer Code of Practice dictates that insurers have 15 business days to respond to your dispute. If they need further information or documentation, then they must request it from you and decide on another timeframe within which to settle the dispute. If you can’t reach an agreement, you can lodge a complaint with the Australian Financial Complaints Authority (AFCA – formerly the Financial Ombudsman Service or FOS). If a complaint has not been resolved within 45 days from the first time you raised the dispute, you can lodge a complaint at AFCA. In this case, the insurer’s internal disputes resolution team must keep you updated at least every 10 business days. Step 2: AFCA complaintsAll insurance companies must be a member of an external dispute resolution scheme, like AFCA. We can help you lodge a complaint with AFCA or see the AFCA website. Exceptional circumstancesThere are some circumstances where a delay may be allowed, which are known as exceptional circumstances. Exceptional circumstances include:
Use of external experts in claims assessmentExperts must provide a final report to the insurer within 12 weeks of the request being made. If the report does not materialise in this time, the insurer will keep you updated. You can request all reports, which must be sent to you within 10 business days. If a claim is being investigated, the insurer may not release information, but may not do so ‘unreasonably’. Claiming interest on your payout If you believe the insurance company is unreasonably delaying your claim, ultimately you may be able to seek interest payments. We can help you with your claim. Call us, free, to discuss your case and see if we can help you. |
How long does an insurer have to resolve a complaint?
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