Despite provisions in the National Credit Code, the National Consumer Credit Protection Act and other relevant codes, some consumers do not always receive copies of all requested documents from their FSP during the internal dispute resolution process.
This article provides an overview of FSPs’ obligations under the Code of Banking Practice and our position on whether or not it is appropriate for a consumer or advocate to escalate complaints to FOS Australia on the sole basis that an FSP has failed to provide copies of documents on request within the specified timeframe.
The right to copies of documents
The Code of Banking Practice has four sets of obligations that relate to the provision of documents:
- Production of documents to consumers. The Code sets timeframes for the production of specific/prescribed documents. These are usually documents that came into existence after a banking service is provided eg contracts, statements of account etc. The timeframes are 14 days for prescribed documents under 1 year old and 30 days for older documents (assuming the FSP still holds those documents).
- Production of documents to guarantors. Guarantors are entitled to a prescribed set of documents (including some about the borrower) before they agree to become guarantors.
- Compliance with laws relating to banking services. Includes the obligations under s185 of the National Credit Code, for example, which sets out obligations for producing specific documents – these are similar to the Banking Code.
The NCC applies to credit providers across the board and this obligation also brings into play the similar obligations under the predecessor to the NCC, namely the Uniform Consumer Credit Code (UCCC) which had similar provisions to the NCC.
- Compliance with privacy obligations. Privacy legislation applies to most FSPs because of their size and turnover. Where an FSP holds information about an applicant, the applicant may request copies of that information under the privacy laws. The Office of the Australian Information Commissioner has issued a set of guidelines to help entities manage their timeframes when handling requests to which the Privacy Principles apply.
Why documents are requested
Often consumers or advocates ask for copies of documents as an important step to identify what did and did not happen, what was or was not offered / charged / represented.
It is an important right under the Code, and a useful tool for consumers and advocates when considering the merits of a matter, in the same way that FOS relies on the same types of documents to assess a dispute.
Will FOS Australia consider a dispute on the sole basis of relevant documents not being supplied during IDR?
Yes. Where a consumer or advocate asks for copies of documents and is unhappy with an FSP’s response, then ASIC RG165 establishes FOS Australia’s power to consider these matters, even though there are no other issues in dispute.
In most cases such disputes will be assigned to our Fast Track process, where an Adjudicator will issue a decision that the FSP provides the documents within 14 days of acceptance of the decision.
Find out more about our Fast Track process by watching a short video linked on our website titled Process Quick Guide.