ASIC recently published Regulatory Guide 271 Internal Dispute Resolution (RG 271). The guide updates requirements for financial firms in dealing with consumer and small business complaints under their Internal Dispute Resolution (IDR) procedures.
Among other things, RG 271 clarifies ASIC’s expectations of financial firms in their dealings with paid representatives – including debt-management firms.
Debt-management firms and their role in dispute resolution
Debt-management firms promise to assist consumers in financial hardship. They offer a range of services such as debt negotiation and ‘cleaning’ or ‘fixing’ credit reports.
As part of their service offering to indebted consumers, these entities often lodge complaints with financial firms directly at the IDR stage and/or to an external dispute resolution (EDR) scheme such as the Australian Financial Complaints Authority (AFCA).
Debt-management firms operate on a for-profit basis and charges consumers fees for their services, either upfront or on a ‘success’ basis. Fees can be very high, and the services can sometimes leave consumers already in financial difficulty worse off.
Importantly, it is free for consumers to complain directly to their financial firm or to AFCA.
Financial firms, AFCA and consumer groups continue to raise concerns with ASIC about the conduct of debt-management firms and the potential harms these entities may cause consumers, including that they may provide unsuitable services and engage in predatory conduct.
When is it appropriate to not engage?
Responding to concerns from financial firms, ASIC has included guidance in RG 271 to clarify when we would consider it to be appropriate for a financial firm not to engage with a paid representative. This includes circumstances where a financial firm reasonably believes that a paid representative is not acting in the best interests of the consumer.
ASIC’s guidance also makes it clear that if AFCA has excluded a paid representative from representing a consumer in relation to a complaint under the AFCA Rules, this would also be an acceptable reason for a financial firm to no longer engage with the paid representative, for the duration of the exclusion period.
If financial firms cease to engage with a paid representative by relying on the updated guidance in RG 271, financial firms:
- should clearly explain to a consumer why contact is being made directly and provide reasonable time to respond; and
- can continue to communicate with a consumer directly, even if the consumer still expresses an intention to retain the paid representative.
Paid representatives: ASIC’s guidance for financial firms
ASIC is currently considering technical updates to Regulatory Guide 96 Debt collection guideline: for collectors and creditors (RG 96), and intends an amendment to the section on ‘when a debtor is represented’ to ensure consistency with RG 271.
In the interim, financial firms can engage with paid representatives in a manner that is consistent with RG 271 and the approach set out in this article.
ASIC expects this article will provide financial firms with more clarity about how they can engage with paid representatives including debt management firms. We also support financial firms developing their own initiatives that help to protect consumers.
Background
There is no uniform regulatory framework applying to the activities of debt management firms in Australia. Most debt management firms are not required to hold an Australian credit licence or an Australian financial services licence to provide debt management services.
AFCA bans MCR Partners
On 1 July 2020, AFCA announced its decision to ban paid representative MCR Partners from lodging complaints on behalf of consumers and small businesses. The decision means that MCR Partners including its directors, employees or agents are excluded from lodging complaints with AFCA for a period of 15 months until 30 September 2021.