A man has failed in a High Court challenge over the refusal of the Financial Services and Pensions Ombudsman (FSPO) to entertain his complaint about being denied information relating to his late mother’s bank accounts.
The man was in a dispute with his sister over whether the sister, who held the accounts jointly with her mother, became beneficially entitled to the funds after the mother died in 2015, or alternatively whether the funds fell to be distributed as part of the estate.
Both the man and his sister were executors of the estate. However, only the sister took out a grant of probate in 2017 which meant administration of the estate vested in her as personal representative of the deceased. The brother was therefore what is called a “non-proving” or inactive executor.
In 2022, the brother sought information on the two accounts which were held with the Educational Building Society (EBS) and which refused to provide the information. The EBS said it was bound to adhere to the instructions outlined in the grant of probate which had appointed the sister as administrator.
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He then made a complaint to the FSPO who ruled the brother was not an “appropriate person”, within the meaning of section 45 of the Financial Services and Pensions Ombudsman Act 2017, to make a complaint on behalf of the estate of his deceased mother. This was in circumstances where he had not been formally appointed personal representative in the grant of probate, the EBS said.
The man then brought High Court judicial review proceedings challenging that decision. The FSPO opposed the challenge.
In a judgment, Mr Justice Garrett Simons ruled the man had brought his proceedings well outside the time limit for bringing judicial reviews.
The judge said a period of almost seven months elapsed between the date of the FSPO decision and the filing of the High Court challenge with a further two months passing before the matter first came before the court in June 2024.
There was no explanation for the length of the delay and there was no proper basis for the court to grant the man an extension of time to bring the challenge, he said.
While the delay issue was sufficient to dispose of the proceedings, the judge said that notwithstanding this he was addressing the grounds on which the challenge was brought. This was because it gave rise to an issue of statutory interpretation in relation to the entitlement to make a complaint which is of general public importance.
The judge said an “appropriate person” in a situation like this, under the FSPO Act, is his or her legal personal representative.
Circumstances can arise where a legal representative of a deceased discovers an irregularity in a bank account of a deceased, for example in relation to the charging of interest, and may want access to an account.
However, the Act did not extend “to embrace the contingency which arises in the present case”, he said. That is a complaint that a financial service provider was wrongfully refusing to allow a non-proving executor access to a deceased person’s banking records, he said.
A non-proving executor may at a subsequent date apply for a grant of probate, known as double probate, but pending that happening the non-proving executor does not have the status of a legal personal representative, he said.
The applicant in this case therefore does not have the requisite standing to make a complaint to FSPO, he said.
The FSPO decision was correct insofar as the Ombudsman correctly concluded he did not have the jurisdiction to entertain the complaint, he said.
However, the reasoning by which the FSPO reached the conclusion was erroneous in law and the reliance on section 45 of the FSPO Act 2017 was misplaced, he said.
While it would be open to the court to remit the matter back to the FSPO for reconsideration in accordance with the court’s judgment, such an exercise would be of no practical benefit as the outcome would be the same – that is the complaint would be inadmissible – he said.
