AFCA entering uncharted territory on super complaints

The transfer of up to 20 unfinished cases from the Superannuation Complaints Tribunal (SCT) to the Australian Financial Complaints Authority (AFCA) represents a step into unprecedented legal territory and the consequences need to be clearly communicated to the super fund members involved.

That is the warning to AFCA from the Association of Superannuation Funds of Australia (ASFA) which has pointed out that, in most instances, the unfinished complaints will have been in existence for a number of years.

“The cessation of the SCT and the transfer of its remaining complaints is a significant legal development, one that is unprecedented for the superannuation industry,” ASFA has warned in a submission.

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“Given the magnitude of the change and its impact, ASFA considers it imperative that clear communication is provided to affected consumers. ASFA is of the view this communication should be provided by the SCT and AFCA.

“It is likely that a superannuation trustee involved in an unresolved complaint before the SCT will, in the course of any communication with the complainant, provide some notification. However, where a consumer is involved in a dispute with their superannuation provider that has progressed to external dispute resolution (EDR) and remained unresolved for an extended period of time, we consider they are more likely to take note —and place trust in — information received from the EDR body (or bodies) considering their claim.”

The ASFA submission said that while the proposed changes are expected to affect only a small number of consumers, their potential impact on those consumers should not be underestimated.

“Where a consumer’s appeal from a determination of the SCT remains with the Federal Court, the decision or conduct to which it relates will quite likely have occurred several years ago. These consumers will need to be provided with certainty that AFCA can take any actions that may previously have fallen to the SCT, to ensure that the court’s judgment is given effect to,” it said.

“Given the SCT ceased to accept new superannuation complaints after 31 October, 2018, a consumer involved in a transferred complaint has already waited an unacceptably long time for resolution. They will, understandably, be concerned that they may face further delays, and may be apprehensive about how the transfer to AFCA may affect them practically.

“They will require reassurance and clear information about how they may personally be affected. Significantly, we anticipate that many of the complainants with unresolved SCT complaints will not have legal representation to help them navigate this important change.”

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