Two roads out of the same complaint. The free road can be closed
This is what happens when a person complains, and the dispute then reaches a court. On the left and in the middle are the free roads, in banking and in social care, where a body other than a court looks at the complaint. On the right is the court road, where the person has to prove everything. Every gate below is a published rule, and every date is from a record the campaign holds.
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The firm has eight weeks to investigate and answer. Where a mortgage was sold on an advice basis, the firm, not the customer, has to show the sale was suitable.
It must tell you that you can take the complaint to the Financial Ombudsman. It has no choice: not saying so would breach its own regulator’s rules.
Free to you. The firm pays the case fee. This is the road where the burden of proof sits with the firm.
The Ombudsman may have no power to look at it
It cannot consider a complaint brought more than six years after the event, or more than three years after you knew you had cause to complain, unless the firm consents. The firm decides whether to consent.
And then it cannot look at the handling either
Handling a complaint is not itself a regulated activity. The Ombudsman can look at how a complaint was dealt with only where it can look at the complaint underneath. If the complaint is out of time, both doors shut together.
Once the firm sues, the Ombudsman can stop
Where the subject of a complaint is being dealt with by a court, the Ombudsman may dismiss that complaint without ever considering whether it is right or wrong.
The door that never opened is counted as the answer
A firm may close a complaint on the ground that it has already responded, and point to its earlier correspondence as the response.
The council investigates its own conduct and answers at stage one, then at stage two if you ask. In this case: stage one on 20 September 2018, six complaints, none upheld; stage two on 1 April 2020, “I am unable to uphold your complaint.”
Asking a Member of Parliament to write is what most people do next. A council normally logs that as a member enquiry, with its own response times. It is not a complaint: it opens no stage, it produces no decision the ombudsman can review, and it does not stop the twelve month clock. In this case the family’s MP wrote to the chief executive on 4 October 2019 and again on 14 October. A director replied and a meeting was arranged for 6 November. No complaint stage was opened by that route.
Free to you. It investigates maladministration and service failure. It cannot question a decision taken without maladministration, however much you disagree with it.
More than twelve months on, and it will not normally look
The Ombudsman may not investigate unless the complaint reaches it within twelve months of the person first having notice of the matter, unless it decides there are good reasons.
It can find maladministration. It cannot make the finding a court makes
The Ombudsman investigates how a council acted. A question only a court can decide is outside its power, and it says so.
Once legal proceedings are in view, it steps back
Where the person had a remedy in a court, the Ombudsman may not investigate unless it would be unreasonable to expect them to have used it.
On 30 March 2023, between those two decisions, a senior manager in the council’s children’s social care wrote: “I would like to offer my personal apologies to you and your family that your experiences of children’s social care and some of the processes have caused long term emotional distress and for this I am very sorry.” Every free route had closed. The apology came anyway. It is not a remedy, and it is not a finding.
The Court’s own protocol says a possession claim should be a last resort and must not normally be started unless all other reasonable attempts to resolve the situation have failed.
The remedy for starting too early is a stay, not the end of the claim. The claim carries on.
Rule 1.1 of the Civil Procedure Rules tells the Court to deal with the case “justly and at proportionate cost”, and rule 1.2 makes that objective override every power the Court has.
The word “fairly” appears once, at rule 1.1(2)(d), as one of seven factors that apply only “so far as is practicable”, and beside a factor that weighs your hearing against the Court’s other work. Cost is in the sentence that overrides. Fairness is not. This campaign calls it the optional fairness rule.
An appeal court will not interfere with case management unless the decision was outside the range open to the judge. Whether you were right never decides how your case is run.
A claim over £21,553.58 of arrears. 283 weeks from claim to trial, against a national mean of 68.6. Twelve hearings listed, ten held. Five months for the Court to calculate its own fee. Six months to answer one letter, and an apology for it.
The roads where a body other than a court looks at the complaint can be shut: by time, by scope, by the other side’s decision to go to court, and in banking by the firm’s own decision that it has already answered. The road where you have to prove everything cannot be shut at all, and the rule that governs it names cost in the sentence that overrides, and does not name fairness.
Fairness First asks for one change, made by the committee that already exists: name fairness in rule 1.1 alongside proportionate cost, where Parliament put it in section 1(3) of the Civil Procedure Act 1997.
Why this has to change: how one sentence produces every gate on this chart, and why one word closes it.
Sources. Complaint handling and referral rights: FCA Handbook, DISP 1. Time limits and the firm’s consent: DISP 2.8.2 R. Dismissal without considering the merits where a court is dealing with the subject matter: DISP 3.3.4A R(4). Complaint handling is not a regulated activity, and the quoted words: Financial Ombudsman Service decision, complaint reference 2154-3391, 9 July 2019. The opening, withdrawal and stated reasons of the April 2020 complaint, and the direction to the litigation solicitors: the firm’s own letter of 8 April 2020 (reference 9680681), its own complaint emails of 3 and 6 April 2020, and its solicitors’ letters of 3 and 9 April 2020. Possession as a last resort: Pre-Action Protocol for Possession Claims based on Mortgage Arrears, paragraph 7.1. The overriding objective and its effect: Civil Procedure Rules, rules 1.1 and 1.2. The rule-making duty: Civil Procedure Act 1997, section 1(3). 68.6 weeks is the mean time from claim to trial on the fast, intermediate and multi tracks in January to March 2026: Ministry of Justice, Civil Justice Statistics Quarterly, published 11 June 2026. Case management on appeal: Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [33]; Mannion v Ginty [2012] EWCA Civ 1667 at [18]. The banking case is Santander UK PLC v Stuart Thompson, claim G1PP9250. No judge is named, because the argument is about a rule and not a courtroom. The proceedings are continuing and nothing here is intended to influence their outcome.
Sources, social care. Local Government Act 1974, sections 26(1), 26(6)(c), 26B and 34(3); Local Government and Social Care Ombudsman final decision 19 017 420, 28 May 2020, and letter of 6 June 2023, reference 23 002 163; the council’s letters of 20 September 2018, 20 March 2019, 1 April 2020 and 30 March 2023. The council is the London Borough of Bexley. No officer is named. The family is not named and is not identified anywhere on this site, and this site does not say who they are.
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