R (on the application of Bankole) v Financial Ombudsman Service [2012] EWHC 3555, Queen’s Bench Division, Administrative Court

Summary

In November 2012, the Administrative Court dismissed an application for judicial review of the Financial Ombudsman Service’s (“FOS”) decision that it did not have the jurisdiction to consider a complaint made to it that was outside the six month time limit rule.

Background

Between 2006 and 2007, Mr Bankole owned a property that was mortgaged with Lloyds TSB (the “Bank”). Mr Bankole subsequently sought to remortgage his property. However, the Bank’s surveyor’s valuation of the property was too low to support the remortgage requirements.

Mr Bankole complained to the Bank on 16 May 2008. After correspondence with Mr Bankole, the Bank sent a “Final Response” letter dated 25 June 2008 setting out the reasons why it had rejected the complaint.

The Bank informed Mr Bankole that it considered it was entitled to rely on the surveyor’s valuation and informed him of his right to complain to the FOS together with information on how to make a complaint. This included an explanation that he should do so within six months of the Final Response. Mr Bankole claimed that he never received the Bank’s “Final Response” letter.

Mr Bankole subsequently contacted the FOS to raise a complaint.  The FOS decided that the complaint was made after the six month deadline of the “Final Response”. Given that the Bank’s “Final Response” letter had been sent to Mr Bankole in accordance with applicable rules (Dispute Resolution Complaints DISP 2.8) the FOS did not consider it had jurisdiction to hear the complaint.

Mr Bankole sought judicial review of the FOS decision.

Decision

On 21 November 2012, the Administrative Court dismissed the application for judicial review of the FOS decision. The court held that the “Final Response” letter had been issued lawfully in accordance with the applicable rules regardless of whether or not the response had in fact been received.

The court did not consider that there were any exceptional or unfair circumstances to be taken into account by the FOS in considering whether to hear the complaint.  In that regard, the FOS decision was not irrational and thereby subject to judicial review.

Conclusion

The court’s decision highlights the importance of drafting “Final Response” letters to complaints that comply with the applicable rules, including emphasising time limits to the complainant. If these requirements are met, it will be difficult for a complainant to succeed in challenging any FOS finding on jurisdiction.

This case is also a reminder of the challenges to evidentiary burdens when seeking judicial review. Mr Bankole may have felt that he had a reasonable prospect of success given that he claimed not to have received the “Final Response” letter. Had Mr Bankole sent a letter to the Bank querying whether he would receive a response, the result may have been different.