A Short Guide to Super-Complaints

Following on from our blog in November last year considering the influence of the little known regulatory super-complaint mechanism (Insights | Punter Southall Analytics | How Super-Complaints Have Shaped UK Legislation and Regulation), part two looks a bit deeper into how super-complaints work: who can bring them, on what basis and to which regulators.

As we covered last time, super-complaints are defined by the Enterprise Act 2002 (EA02) and can be submitted to a regulator if features of a market for goods or services appear to be harming consumer interests.[1]

But not anyone can make a super-complaint – only certain bodies that represent the interests of consumers (according to the Secretary of State) are eligible to do so, and they have to be designated as “super-complainants” by statutory instrument in the EA02.

What are the criteria to be a super-complainant?

To be designated as a super-complainant by the Secretary of State, a body needs to meet certain criteria, including:

1. Representation – the body must represent the interests of consumers, or specific groups of consumers.
2. Independence and Accountability – the body must have independence, as well as robust and transparent governance structures to avoid conflicts of interest or doubts around integrity.
3. Expertise – the body must have relevant expertise and experience (usually over a minimum of two years) to ensure complaints are informed and credible
4. Evidence Gathering – the body must be able to demonstrate its ability and capacity to put together reasoned complaints and deal with relevant economic and competition issues.
5. Co-operation – the body must be willing to co-operate with regulators and take their guidance into account.[2]

Which regulators can receive a super-complaint?

Like the super-complainants themselves, regulators need to be designated before they can receive and address a super-complaint. [3]

When super-complaints were first introduced in 2002, they could only be made to the Office of Fair Trading (OFT), which was superseded in 2014 by the Competition and Markets Authority (CMA).

This has since been expanded, and super-complaints can now be made to a range of sectoral regulators, including:

• The Financial Conduct Authority (FCA)
• The Payment Systems Regulator (PSR) – although the Government announced last week that the PSR would be consolidated with the FCA in due course
• The Office of Road and Rail (ORR)
• Ofcom

Who can make a super-complaint?

Different designated consumer bodies are permitted to make super-complaints to different designated regulators. Some have the ability to submit complaints to multiple regulators, for example Which?, Citizens Advice, and the Federation of Small Businesses. [4]

Other designated bodies include:

• The Campaign for Real Ale Limited
• The Consumer Council for Water
• The General Consumer Council for Northern Ireland
• The National Consumer Council
• The Scottish Association of Citizens Advice Bureaux
• The Money and Mental Health Policy Institute
• Age UK

What is the basis of a super-complaint?

One of the key features of a super-complaint is that it identifies structural or systemic issues harming consumers in a market, rather than identifying unfair practices or misbehaviour of individual companies.

Some of the most well-known super-complaints to date include:

• Payment Protection Insurance super-complaint (better known as PPI) made by Citizens Advice to the OFT in 2005
• Card Payment Surcharges super-complaint made by Which? to the OFT in 2011
• Loyalty Penalties in the Mobile, Broadband, Cash Savings, Home Insurance and Mortgages markets super-complaint made by Citizens Advice to the CMA in 2018

What happens once a super-complaint has been made?

Super-complaints require the regulator to respond within 90 days with next steps, which can include:

• Taking enforcement action
• Agreeing voluntary changes with the industry
• Launching a market study / market investigation
• Recommending action by the government or another regulator

Alternatively, a regulator can find a complaint to be unfounded. Due to the relatively short time allowed for a regulator to review a super-complaint and decide on next steps, it is essential that super-complainants have done adequate research and presented a well-formed argument.

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We hope you've found this article of interest.

If you'd like to discuss it, or any other matters where we may be able to assist you, please contact David Rankin on david.rankin@puntersouthallgroup.com.

[1] What are super-complaints? - GOV.UK

[2] Super-complaints: guidance for bodies seeking designation as super-complainants - GOV.UK

[3] Enterprise Act 2002

[4] The Enterprise Act 2002 (Bodies Designated to make Super-complaints) (Amendment) Order 2009