Having just spent 3 years, jumping through hoops for a Complaint to the A.F.C.A, supplying copious documents and photographs (of damage to an insured house, destroyed by a “defined event” of pipe-burst water under the slab, @100,000 ltrs+) and waiting for an A.F.C.A “determination”, I have been gobsmacked to receive a determination in favour of the Insurer (CGU), only requiring them to pay some $10k (plus $5k of Expert witness costs) for a totally destroyed house, which MUST now be demolished, and was insured for $465k at the time of the “defined event”. Along the way, A.F.C.A “preferred” the Reports of Insurer’s Engineers (to my Engineer and Building Expert) who couldn’t even get the following facts correct:
Type of construction,
Orientation of the house, and
Fall of the land.
Indeed, the A.F.C.A not only ignored at least 6 breaches of the Insurance Code of Conduct, by the Insurer, (and actually facilitated at least two more) but also the Insurer’s multiple breaches of their “Duty of utmost good faith”, and the A.F.C.A actually quoted the Insurer’s original (first) conduct code breach IN A.F.C.A’s final determination,i.e. perpetuating THAT breach SIX YEARS after it first occurred and was reported TO the Insurer, by me. One single breach of “duty of utmost…” is sufficient in a Court of Law, to constitute a breach of Contract, with a consequent finding in favour of the “victim”…my Claim has at least a half dozen of such breaches.
Online (Product Review) reviews of A.F.C.A clearly demonstrate Consumer disdain and discontent with A.F.C.A outcomes, but this “Authority” is WHO Consumers are directed to, for financial services Complaints…This “Authority” is failing DISMALLY. Given that the A.F.C.A is FUNDED by the very same financial service providers that the Royal Commission sought to “clean up”…are we really surprised that it transpires that Consumers are yet again left floundering around for “justice”? Indeed, the A.F.C.A “fraudulently” manipulates its own statistics by e.g. In my Case, they requested a “temporary” closure of my Complaint, requiring a new Complaint number when re-opened. I naively agreed, which “got me off their books” within their “two year time frame” (giving the appearance of success by them), but it took me A YEAR, and a full re-lodgement, to get the Case re-opened. This is also a delaying tactic, which serves the Insurer (in this case), by running the Complainant “out of time” to launch Court action. I paid premiums to CGU for 17 years, for a financial service/product, which, when finally needed, would offer to pay out (original offer was only 1/3 of premiums paid, or, just over 0.5% of the sum insured) less than the premiums I paid…let alone being just 3.5% of the sum insured that I paid them for…Hi ho, Hi ho, it’s off to Court we go…
Given the Choice tenacity for Consumer rights, perhaps Choice could undertake a survey of the satisfaction/not, of Consumers in the A.F.C.A…and WIDELY publicize the results (and the fact that they are doing a survey)?
Well…that was useless. I will simply go the Court path, and hope that the Laws as written are ACTUALLY enforced by the Court…GOD HELP CONSUMERS consistently being SCAMMED by INSURERS (read online product reviews for ALL Insurers and the A.F.C.A) who supposedly insure “you”, but deny Claims on fraudulent premises, factual “mistakes” etc., etc.,
Come on Choice…you have had fabulous wins regarding banking, but what about Insurance (last survey I see was in 2018/2019), WE NEED HELP…WE ARE BEING DENIED JUSTICE from financial Products that purport to idemnify us…but simply DON’T…when we most need them, years, or even decades, later. Check Product Review’s website for examples…I haven’t yet found a single Insurance Company that ACTUALLY honors it’s PDS!..let alone their duty of utmost good faith, or, ACL. NO-ONE enforces…the A.F.C.A. are HOPELESSLY conflicted & the Government simply “turn blind eye”…
The AFCA r a disgrace - they side with the Trustee and so does the Ombudsman.
I asked them over and over again for information - every time the Trustee sent back the wrong material. I had to nag AFCA to follow it up - I still get irrelevant material. I asked for phone recordings of calls on specific dates - despite keeping all recordings ‘for training purposes’ - the Trustee claimed such recordings didn’t exist. There were major discrepancies between my 6 monthly statements and the list of so-called transactions. When I asked for this to be investigated - the list of transactions ‘disappeared’ and was replaced by another, I could go on and on - but I don’t have time. AFCA decided to close my case before obtaining the material and phone recordings that I had been asking for - for almost 2 years.
I have no income (Centrelink stopped my disability benefit) and have to live entirely off my Super. It depresses me as the balance has been diving downward since the start of the new financial year. I live in Perth and have not been able to find a lawyer willing to take on the Trustee - it seems most of them have ‘Conflicts of Interest’. I am now urgently looking for an interstate lawyer who can help me before the Statute of Limitations stops me proceeding to court. If anyone knows of a company they can recommend - I implore u to let me know - I will have to pay out of my Super - but for me it’s a matter of Ethics. I have a number of questions an experienced lawyer could answer and then I would take advice on whether I had any chance to win in court. I simply cannot give up until I am convinced that I cannot win. The trustee has caused me financial hardship for over 5 years with their silly games - they cannot be allowed to get away with it
In fact AFCA can be a dangerous road to take if your complaint is about Superannuation. If they make a decision it is binding on both parties with no ability to appeal to a Court if it goes contrary to expectations/hopes except on a matter of Error of Law:
“ Our Determination of a Superannuation Complaint comes into effect immediately it is made, unless the AFCA Decision Maker states a later effective date in the Determination.
28 If the Determination varies or substitutes for the original decision of the trustee (or other decision maker), it is taken to be the original decision and, therefore, has effect from the date of the original decision.
29 The Determination also binds third-party decision makers that have been joined to a Superannuation Complaint about a disability benefit.
30 Each party to a Superannuation Complaint has a right of appeal to the Federal Court on a question of law within 28 days after the day when a copy of the Determination has been given to the party (unless the Federal Court allows a further period).
31 We will notify each party that they have a right to appeal to the Federal Court if they think the AFCA Decision Maker has made an error of law in determining a Superannuation Complaint. A party cannot appeal to the Federal Court because it thinks the AFCA Decision Maker should have made a different Determination, unless an error of law has been made.”
So if it is about Super go to a Civil and Administrative Tribunal (CAT) or a Court to try for resolution. We found AFCA quite useless for us in our dealings over Super, thankfully they didn’t make a decision so we weren’t bound and could take other steps to resolve the problem.
I would even say with other financial disputes a CAT or Court is the best way to go as there are at least avenues for appeal if a case goes against you and adding AFCA at the beginning may be useless as they only deal with those businesses that are registered or are required to be registered with them and this approach can add substantial periods of delay. Are they independent? In my opinion well the spiel seems somewhat contradictory “ We work independently, cooperatively and efficiently to resolve financial complaints with a fair outcome”, so it says they are independently cooperative.
Thanks for your detailed information. I started down the AFCA route several months ago. I was expecting a reasonably thorough investigative process. Instead both myself and the superannuation trustee have been send what looks like fairly standard generic questions. The trustee, in their response, has not really answered the questions and instead sent copious amounts irrelevant reports and screenshots. My concerns regarding the trustee responses were ignored by my AFCA case manager. He appeared to be happy that they provided a response, regardless of the content. Seriously, I don’t know how he will be able to make any determination based on the information he has received.
Can you tell me a little more about “CAT”. I have not heard of that before?
As for AFCA, it pays to read exactly what they are and what they do (and thus do not do). Some consider it as well as other similar ‘services’ as nothing more than window dressing to make ‘regulation and oversight’ look like something it is not.
Each state has its own but they are mostly the same. They are as close as we have to a small claims court system whereby a consumer/aggrieved can lodge a complaint. Their determinations do not have the force of law, topic dependent, and sometimes a monetary award might be willingly paid by the loser, while sometimes the winner needs to take the CAT ruling to court to obtain a legal order. OTOH the CATs are generally the ultimate arbiters for planning disputes and a few others issues.
I’m in WA and checking out that website now. Really appreciate your help. My complaint process has been going on for some 11 months and I feeling a little worn down. I’m a patient man, but surely there is only so much delay you can blame on COVID.
My situation is very similar to the circumstances of this judgement by the federal court in April - https://download.asic.gov.au/media/ajonl1ai/orders-westpac-inadequate-fee-disclosure.pdf. I’m not sure why the Trustee has not acknowledged that. How do I get my case in front of a lawyer so that I can make the courts aware that the trustee is continuing to ignore issues that are systemic in nature? I’m not looking for personal compensation, but want to avoid others having to go through my pain over the last 11 months.
Because this is likely a Federal Issue the Administrative Appeals Tribunal (AAT) is perhaps the best course. But as you are in a Super dispute now and AFCA are involved, you may be locked into that process and possibly binding outcome (if they make a decision). If you attempt to withdraw they may still find either for you or against you and your withdrawal may have no impact on that decision except to allow them to state you conceded. I would be speaking to a law expert to see what options might be open to you before taking any further steps.
Indeed, the keenness is often a displayed response to a party going to AFCA by the Super industry. Our case was for my daughter, the response from the Insurer was in my opinion just whitewashing, ACFA seemed well pleased with response by the insurer (again only my opinion and not a statement of fact). Thankfully they didn’t make a binding decision except to say the Insurer was correct in their interpretation and application of their Insurance T&Cs and PDSs (Terms and Conditions and the Product Disclosure Statements).
I felt the PDS had conflicting information. AFCA said as it was all in the PDSs that they had to accept the PDS was the correct determinational document. So basically in the end we had to prove that death would most likely occur within 2 years to be able to access the full funds (tax free), but to access the full funds death would need to likely occurring within 12 months. There is a lot of this I feel in the Super Industry.
ASIC and/or APRA can still argue that a business did not follow the Law. ASIC or APRA if complained to may still decide to take a case to Court, even if AFCA are involved in a personal dispute about the matter. There is no way to ensure ASIC or APRA take/make a case. All a person can do is lodge a complaint with ASIC and or APRA and hope they decide the matter is important enough for them to seek Court action. Much like the ACCC , ASIC and APRA are opaque as to when/if and what cases they may seek to prosecute. A sign perhaps needs to be put above some doors “Abandon Hope All Ye Who Enter Here”. I’d be one to say that the Royal Commission showed that most of these oversight bodies failed in their duty to be oversight bodies, but they didn’t fail to carry out the policy of those who created them.
Thanks Grahroll. I really appreciate you providing me with that information and details regarding your case, particularly under those circumstances. I have now contacted APRA. As you say, that is probably all I can do. As for AFCA, I’ve invested a significant amount of time in this already, so will continue the fight.
I have been attempting to resolve a blatant fee-for-no-service issue for the last 11 months. The issue has been subject to two internal reviews and was referred to AFCA back in early January. I was told by my AFCA Case manager that he had completed a preliminary review of the case and had identified some discrepancies in the information provided to him by my superannuation trustee. It appeared to me that things might be heading in the right direction after going around in circles for nearly a year.
Then a few days later I received a letter from AFCA stating that my case has been paused pending an review of AFCA “approaches” which started back in April 2021. I’m no conspiracy theorist, but that sounds kind of strange. Here is a extract from the letter:
"This complaint is about superannuation fees and charges. Based upon the issues in dispute and the information received from the parties, my preliminary assessment will need to consider AFCA’s approach to Superannuation fees and charges (the Approach). In April 2021, AFCA was asked by an industry association to undertake a formal review of the Approach. AFCA has agreed to undertake this review and expects it to be completed within three months.
While the review is being undertaken, AFCA has decided not to issue any preliminary assessments or determinations that involve the application of the Approach. This means cases up until this stage of investigation can continue to be managed by AFCA’s general complaint handling approach, but cannot progress to preliminary assessment."