R Bankole v Financial Ombudsman Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 21 November 2012 |
| Neutral Citation | [2012] EWHC 3555 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3851/2010 |
| Date | 21 November 2012 |
[2012] EWHC 3555 (Admin)
Mr Justice Sales
CO/3851/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
The Claimant appeared in person
Mr D Loveday (instructed by Financial Ombudsman Services Legal Department) appeared on behalf of the Defendant
This is an application for judicial review of a decision by the Financial Ombudsman Service ("FOS") to treat a complaint by Mr Bankole to the FOS about the conduct of Lloyds TSB in relation to him as being out of time under the statutory regime governing the FOS. On the basis of that decision the Ombudsman has declined to consider the merits of Mr Bankole's complaint about the conduct of LLoyds TSB.
The factual background is as follows. In 2006 to 2007 Mr Bankole owned a property in Hackney under a mortgage to TSB. He invested sums borrowed from LLoyds TSB on short term loans at high interest rates in upgrading that property. He did this in the hope that in due course he would be able to remortgage the property with Lloyds TSB on longer term cheaper interest rates. In the event, the valuation produced by surveyors instructed to value the property for the purposes of the remortgage transaction was too low to support the new arrangements Mr Bankole was seeking. Mr Bankole felt that the valuation was unreasonably low and sought to persuade the bank that the property was worth more so that it should proceed with the remortgage transaction. The bank was unpersuaded. Mr Bankole as a result had to go on paying high interest rates on the borrowing he had with the bank.
He was aggrieved and complained to the bank, acting by its local manager Ms Patel, first in March 2008 then by letter dated 16 May 2008. The bank acknowledged this complaint by letter dated 21 May 2008 from its customer service recovery centre and said it would investigate. The bank wrote a further letter dated 3 June 2008 saying it was still investigating the matter and referring to the possibility of a complaint to the FOS. Both those letters bore a reference number 1046715. Curiously, on 19 June 2008 the bank wrote another letter to Mr Bankole, this time bearing a reference number 1053197, in terms similar to those of the letter dated 21 May 2008, again beginning:
"I am just writing to let you know that we have received your complaint."
It later emerged from the FOS's investigations with the bank that it had by an error re-logged Mr Bankole's original complaint and that this had had the effect of generating a separate stream of letters about it under this different reference number.
On 25 June 2008, Lloyds TSB sent Mr Bankole a letter headed "Final Response". It bore the reference number 1046715. It set out detailed reasons why the bank rejected Mr Bankole's complaint. In summary, the bank said that it was entitled to rely on the surveyor's valuation of Mr Bankole's property it had received rather than a higher valuation proposed by Mr Bankole himself. The letter informed Mr Bankole of his right to complain to the FOS provided he did so within 6 months. It also enclosed information about how a complaint to the FOS could be made. It is clear that this letter meets the definition of a "final response" for the purposes of the rules governing the FOS. However, in these proceedings Mr Bankole denies that he received it. The letter also suggested that if Mr Bankole was unhappy with the surveyor's valuation they had their own formal complaints procedure and he should deal with them directly. By letter dated 10 January 2008 Mr Bankole wrote to the surveyors to make a formal complaint about their valuation. Despite having sent the final response rejecting Mr Bankole's complaint, on 21 July 2008 the bank's customer service recovery centre wrote to Mr Bankole again under reference number 1053197 in terms similar to the letter of 3 June 2008, apologising for the delay in responding to his complaint and saying: "We are still actively looking into it". It also made reference to the possibility of a complaint to the FOS. On 22 August 2008, the surveyors wrote to Mr Bankole rejecting the substance of his complaint to them.
Finally, again under reference number 1053197, the bank wrote to Mr Bankole on 21 October 2008 to say that notwithstanding previous letters saying it was still looking into his complaint it considered that it had been fully addressed in discussion with his business manager, Ms Patel, in September 2008 and that the investigation had now been stopped. The letter went on:
"That doesn't mean we won't re-open it if you later think of anything that we haven't properly answered or you change your mind. All you need to do then is to call me on [telephone number] or write to me at the address at the top of this letter and I'll do my best to address your concerns.
If we can't agree on a solution at that point, we will help you refer your complaint to the Financial Ombudsman Service for independent arbitration."
On 15 January 2009, Mr Bankole contacted the FOS by telephone to raise with the FOS his complaint about Lloyds TSB. It is common ground that this is the date on which Mr Bankole is to be taken as having made his complaint to the FOS for the purposes of the FOS limitation regime. Mr Bankole later supplied written details of his complaint, including a chronology of events, which he said "details fully the behaviour of TSB towards me…" In that chronology, Mr Bankole included the following entries for July 2008:
"July 2008. Forced to complain to Lloyds TSB head office. Letter written to 3 different departments before letter acknowledged 1 month later.
July 2008. LLoyds TSB respond to complaint, stating that my opinion means nothing to them and that the Surveyors opinion … means everything to them, rejecting my complaint.
July 2008. Decide to follow up with Lloyds TSB's surveyors' complaints procedure, directing points of contention to the 2nd partner, Mr D. Foskett."
The chronology also referred to the response from the surveyors in August 2008. Mr Bankole did not in that chronology refer to the correspondence from Lloyd TSB under the reference number 1053197.
The FOS communicated the complaint to the bank, which referred to its final response letter of 25 June 2008 and maintained that Mr Bankole's complaint to the FOS was out of time under the 6 month limitation rule applicable under the relevant legislation. Adjudicators for the FOS investigated this issue with Mr Bankole and the bank. Mr Bankole denied having received the final response letter. He did this in a telephone conversation on 12 June 2009 with Ms Archer, the FOS adjudicator dealing with that matter at that time. The same day, she wrote a letter to Mr Bankole in these terms:
"I write further to our telephone conversation of 12 June 2009. As you know, Lloyds TSB has told us that your complaint is not one that we can actually deal with. Having now looked into the matter, I am sorry to have to tell you that it appears we cannot consider your complaint any further.
As I explained during our telephone call, Lloyds TSB has sent us a copy of the final response letter sent to you on 25 June 2008. In this letter it stated you had the right to bring your complaint to the Financial Ombudsman Service as long as this was done within six months of the date of the letter. I enclose a copy of the letter for your information [a copy of Lloyds TSB's final response letter dated 25 June 2008 was enclosed].
We are not free to consider all complaints which are brought to us. For example we cannot consider a complaint if it was brought to us more than six months after the date on which the final response letter was sent. Our records show you first contacted us on 15 January 2009 which exceeds the six month period from 25 June 2008.
Because of this, I do not believe we can consider your complaint further. I appreciate that this is likely to come as a disappointment to you. I know that this is not the outcome you were hoping for. But I hope that my explanation has been helpful in setting out clearly why I have taken this view. However, if you disagree with how I have reached my conclusions, please write and tell me by 26 June 2009 —setting out your reasons and including any evidence that you have not already provided and that you think is important to your case. Could you please let me know now if you plan to reply fully but do not think you will be able to meet that deadline.
As we explain in our leaflet, your complaint and the ombudsman, consumers have the right to ask an ombudsman to review the opinion that the complaint be considered further. If we do not hear from you by 26 June 2009, we will assume that you have decided not to pursue the complaint further."
This letter set out the provisional determination of the FOS that Mr Bankole's complaint had been made out of time by reference to the date of the final response letter of 25 June 2008 but it was a provisional decision which was subsequently revisited in definitive form by the FOS.
Mr Bankole did promptly take issue with the position set out in the adjudicator's letter. In a letter which crossed with hers from Mr Bankole to the FOS dated 12 June 2009 and again the letters from him dated 15 June 2009 and 8 July 2009 he again denied that he had received Lloyds TSB's final response letter and now made reference to the subsequent correspondence he had receive from them, enclosing copies for the FOS. The FOS followed up this issue with the bank, who confirmed in a letter dated 22...
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