Bankole, R (on the application of) v Financial Ombudsman Service

Under the Financial Services and Markets Act 2000 and the DISP rules, the Financial Ombudsman Service primarily decides whether a complaint was made in time. The High Court reviews that decision on ordinary judicial review grounds and does not redetermine the facts. A compliant final response starts the six-month period. Later correspondence does not restart time unless the respondent clearly and formally withdraws the final response. The application failed because the Ombudsman’s finding of receipt was rational, the procedure was fair, and no exceptional circumstances required an extension.

The claimant sought judicial review of the Financial Ombudsman Service’s final decision that his complaint concerning a bank was out of time. The FOS relied on a final response dated 25 June 2008 and found that it had been received, although later correspondence suggested that the complaint remained under investigation. The claimant also challenged the adjudicator’s provisional view and the chief ombudsman’s refusal to reopen the matter.

The central issues were whether the FOS had lawfully applied the DISP time-limit rules, whether its fact-finding and procedure were rational and fair, and whether later correspondence or exceptional circumstances required the complaint to be entertained.

1. Statutory scheme and review. Part XVI of the Financial Services and Markets Act 2000, section 225(1), Schedule 17 and the DISP rules establish a scheme in which the ombudsman determines whether a complaint falls within the applicable time limits. That question is primarily for the FOS. It is not a factual issue for the High Court to determine afresh. Review is confined to the usual judicial review grounds.
2. Operative decisions. The adjudicator’s letter was provisional and invited further representations. It was not the operative decision. The operative decision was the ombudsman’s decision of 5 November 2009. The chief ombudsman had no power to act as a court of appeal from that decision.
3. Receipt and rationality. The ombudsman’s finding that the claimant received the bank’s final response was rationally open on the evidence. The ombudsman relied on the claimant’s chronology, which corresponded closely with the final response, his subsequent complaint to the surveyors, and the bank’s evidence about sending the letter. The finding was supported by evidence and could not be impugned as irrational or unlawful.
4. Final response and later correspondence. The letter complied with the formal definition of a final response in the FSA Handbook. It had not been withdrawn. Subsequent correspondence about the same complaint did not revive or restart the six-month period. That would occur only after a formal and clear withdrawal of the earlier final response. The later letters did not create unfairness in the circumstances.
5. Fairness and exceptional circumstances. The procedure was fair because both parties had notice of the relevant points and an opportunity to comment, and the ombudsman considered the correspondence and understood the claimant’s case. In some circumstances, clear unfairness, potential unfairness or confusion might require the ombudsman to consider an extension for exceptional circumstances on his own initiative. No such unlawfulness arose here: the claimant had received clear notice of the time limit, had not identified an additional exceptional circumstance, and was not unfairly prejudiced by the later correspondence.
6. Disposition and costs. The judicial review application was dismissed. Costs followed the event. The court summarily assessed the defendant’s costs at £10,650.75. Permission to appeal was refused because there was no real prospect of success and no other compelling reason.

1. Financial Ombudsman Service: An adjudicator issued a provisional view on 12 June 2009. The ombudsman then decided on 5 November 2009 that the complaint was out of time. The chief ombudsman subsequently stated that the decision could not be reopened under the FOS rules.
2. High Court (Administrative Court): The judicial review application was dismissed. The court also ordered summary assessment of costs and refused permission to appeal.