Emma RadmoreThe High Court has refused an application for a judicial review of a FOS decision that it had no jurisdiction to address a complaint because the complaint was made out of time.
The claimants had complained to their mortgage provider about an increase to the SVR of their mortgage, which had originally been a fixed interest-rate only mortgage which reverted to a SVR interest-rate only mortgage in 2009. The bank had responded in 2013 and 2014, not upholding the complaint, and the mortgage was redeemed in 2016. The claimants then complained in 2022, on the basis that they had been trapped as mortgage prisoners as a result of the bank not providing a new product in 2009 and them being unable to remortgage to another lender. The complaint referenced the possible time bar and said that another lender did not time bar the complaint and that the complainants trusted a similar approach would apply here. The lender did in fact investigate the complaint, did not uphold it, and sent the standard wording advising the claimants of their right to refer he complaint to the FOS. The response was silent on whether the lender would consent to a referral that could be time-barred (except insofar as the complainant did not refer to the FOS within the necessary time frame from receipt of the lender’s final response: on this, the lender said it would not consent, but that is not relevant to this case because the complainant did refer within those timescales) – but the relevant DISP rule required them to indicate in the response whether or not they would consent to waive time limits.
The claimants did take their case to the FOS and at that point the lender told the FOS it would not consent to the complaint proceeding. As a result, the FOS found that it did not have jurisdiction, given the complaint was brought more than 6 years after the event complained of and more than 3 years after the claimants knew or should reasonably have known that they had cause to complain. According to DISP, the Ombudsman can only consider complaints in these circumstances if either the failure to comply with time limits was a result of exceptional circumstances or the respondent firm agreed to the Ombudsman considering the complaint. Before 2015, the relevant DISP provision had referred only to the respondent not objecting, as opposed to positively consenting.
The claimants said that the lender had waived its right to rely on the time-bar or had impliedly consented to it and as a result it was not open to the Ombudsman to decide she had no jurisdiction on the basis of a time bar. They said that any reasonable person would conclude the lender had consented to the matter going forwards notwithstanding the historic time bar since the claimants had expressly asked it to waive it, and the final response referred only to the time limit between receipt of the final response and the referral to the FOS.
The judge held that, based on the relevant wording of DISP, the Ombudsman had not misdirected herself in law, so the application for judicial review was dismissed.