The Office of Fair Trading is able to investigate complaints about insurers approved under the Home Building Act 1989, to provide home warranty insurance in New South Wales.

A complaint means an alleged breach or failure by an insurer (including an intermediary or service provider of an insurer) to comply with the legislative requirements or its conditions of approval to operate in the NSW home warranty market (including the market practice guidelines, claims handling guidelines or any other condition imposed by the Minister).

Insurers are required to have in place effective internal complaint handling mechanisms.

Accordingly, Fair Trading can only become involved in a complaint about an insurer following the completion of the insurer’s internal dispute resolution process and where the insurer has been unable to appropriately resolve the complaint.

Complaints relating directly to decisions of insurers not to indemnify a beneficiary are unable to be investigated by Fair Trading.  There is a right of appeal to the Consumer, Trader and Tenancy Tribunal available to claimants in relation to a decision of an insurer to decline (in part or whole) a claim.

Talk it over with the insurer

If you are aggrieved by the actions of an insurer (or an intermediary or service provider of an insurer) and you feel that these actions constitute a failure of the insurer to comply with the legislation (or the market practice and claims handling guidelines forming part of the insurer’s conditions of approval), you should discuss your complaint in the first instance with the insurer.  It may simply be a misunderstanding which can be resolved through communication.  Be sure to keep all your communication with the insurer for your records.

Role of the Office of Fair Trading

The role of the Office of Fair Trading in investigating a complaint about a home warranty insurer includes:

• providing advice and information to complainants as to their rights and directing complainants (if appropriate) to lodge their complaint, in the first instance, with the insurer
• receiving complaints in relation to the conduct of insurers where the insurer’s internal complaint mechanisms have failed to effectively resolve the complaint
• encouraging, where possible, the mediation and informal resolution of complaints
• inquiring into the conduct of an insurer in relation to any alleged failure to comply with the legislation, conditions of approval, market practice or claims handling guidelines
• determining whether an insurer has breached the legislation, conditions of approval, market practice or claims handling guidelines and, if so, the action to be taken regarding the breach.

Where the matter has been unable to be resolved to your satisfaction through the insurer’s internal dispute resolution process, a complaint may be made to the Office of Fair Trading. A complaint may be made by a builder, owner-builder, beneficiary and a person acting on behalf of another person such as a family member, lawyer, friend or community organisation.

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Complaints may be lodged by downloading a complaint form, completing and forwarding it to the Office of Fair Trading or your nearest Fair Trading Centre. Alternatively, complaints can be lodged with Fair Trading by letter detailing the grounds of the complaint accompanied by supporting documentation.

Generally, anonymous complaints will not be actioned by Fair Trading.

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In attempting to address your complaint to your satisfaction, we ask your assistance with the following:

• clearly identify the issues of your complaint and provide all relevant supporting documentation and information
• where possible, let us know what kind of result or outcome you are hoping for
• let us know if you change your address and or contact telephone number
• immediately advise us of any relevant developments or if you no longer want or need our assistance.

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When your complaint is received by the Office of Fair Trading we will examine it and:

• acknowledge receipt of your complaint in writing within 5 days
• make initial enquiries into your complaint (this may include contacting you)
• consult with other agencies, such as the Australian Prudential Regulation Authority (APRA) or the insurer
• decide whether any further action by the Office of Fair Trading is required.

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Some complaints can be dealt with quickly while others may take some time to investigate. We will find out what happened from the insurer’s perspective and try to resolve the problem through mediation. If the assessment has not been completed within four weeks we will write to you and let you know what is happening with your complaint.

Complex matters may need further investigation, which may add time to the resolution of the complaint. When this occurs, we will provide you with regular updates on the progress of the investigation into your complaint. We anticipate that complex matters would generally be completed within three months.

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There are many possible courses of action that may occur following the assessment of your complaint including.

Providing you with information – Some complaints arise because there is a lack of information available to you. In these circumstances, we will provide you with information that may resolve your complaint.

Referring your complaint to another agency – Sometimes complaints fall within the jurisdiction of other agencies, such as the Australian Prudential Regulation Authority (APRA). In these circumstances, we will refer your complaint to the other agencies and a decision will be made as to the most effective way of addressing your concerns.

Informal mediation or conciliation – We may refer your complaint for informal mediation or conciliation, if suitable. You should advise us if you do not wish to become involved in an informal mediation.

Audit or investigation by Fair Trading or a consultant – If the Office of Fair Trading is of the opinion that your issues are significant or demonstrate a continual course of conduct by an insurer, it may decide to conduct an investigation into your complaint issues.

No Further Action – The Office of Fair Trading also has the discretion not to investigate complaints or to discontinue an investigation if it is determined that the complaint is:

• frivolous, vexatious or not in good faith
• the subject matter is trivial
• the conduct complained of occurred too long ago to justify investigation
• alternative and satisfactory means of redress is or has been available to the complainant
• the complainant has no interest or an insufficient interest in the conduct complained of.

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Often we may need more information to either assess or investigate your complaint. We might ring you to clarify the issues of your complaint, obtain more information or arrange a time to meet with you, so it is important that you notify us of any change in your address and/or contact telephone number.

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If your complaint is complex you may be asked to provide further details in writing or to provide copies of letters, documents or other material.

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If an investigation is undertaken by us we will write to you or call you to tell you the outcome of the investigation. If you are not happy with the outcome, you should discuss your concerns with the nominated Complaints Officer or forward your concerns in writing to the Commissioner for Fair Trading or the Ombudsman.

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If you are from a culturally and linguistically diverse (CALD) background, we will:

• consult with the Community Relations Commission of NSW and
• obtain access to an interpreter for you.

If you wish to speak to us over the telephone through an interpreter, you can call the Telephone Interpreter Service on 13 14 50.

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