Appealing a Determination

A Determination is final and binding on all parties to a case subject to a successful appeal on a point of law. This means we cannot change the Determination, except for minor errors such as typing mistakes.

If you want a Determination changed you must appeal to the High Court in England or Wales, the Court of Session in Scotland or the Court of Appeal in Northern Ireland.

This is a statutory right and you do not need our consent to lodge an appeal.

In England and Wales appeals against Determinations or directions of an Ombudsman require the permission of the High Court.

The person lodging the appeal will need to satisfy the Court that the appeal has a real prospect of success or that there is some other compelling reason why it should be heard.

This requirement does not currently affect appeals in Northern Ireland. In Scotland an appeal follows a different process, known as a “case stated”, which is explained in more detail below.

Any directions made by an Ombudsman can still be enforced pending an appeal unless the court orders a stay or sist (which applies in Scotland).

1. What you need to do

The Ombudsman has directed for England and Wales that the person wishing to appeal must lodge the appeal within 28 days after the date of an Ombudsman Determination.

In Scotland a person wishing to appeal must first write to the Ombudsman within 14 days after the date of the Determination asking him to state a case to the Court of Session and setting out why you think he  has made an error of law.

Different time limits apply in Northern Ireland and local advice should be taken.

The appropriate courts may give an extension in certain circumstances, although this is not guaranteed.

2. Appeal Procedure

2.1   England, Wales and Northern Ireland

The party appealing an Ombudsman Determination is known as the appellant. The respondent will be the party (or parties) on the other side of the matter determined by an Ombudsman.

An Ombudsman should not be made a party to an appeal but must be sent a copy of the Notice of Appeal by the appellant. The High Court suggests that where the appellant is an unrepresented individual, the respondent should also take it upon themselves to confirm that the Ombudsman has been served with the Notice of the Appeal. This is particularly important as the Ombudsman may wish to participate in the appeal. The Ombudsman cannot consider his position unless alerted to the appeal.

If you are an appellant and the court decides that an Ombudsman’s decision should be upheld (meaning your appeal to the court is unsuccessful) then it is expected that you, as the unsuccessful party, should pay the costs of the successful party.

If you are a respondent to an appeal, you have to decide whether or not to appear in person or be represented at the appeal. If you do and the court decides that an Ombudsman’s decision should be changed, you may have to pay some or all of the costs of the appeal.

If you decide not to be represented (or appear) it is not expected that you would have to pay any of the costs.

It may also be possible for you to apply to the court to have costs recovery limited in the appeal.

If you intend to appeal, you may want to consult a solicitor or talk to your local Citizens’ Advice Bureau or law centre.

Our role

We are not usually a party to an appeal. However, if permitted by the court, we can become a party to an appeal; and although we have no right as such it is expected that permission will be freely given. Occasionally we may wish to participate in an appeal. For example, if we believe it would assist the court to come to the right decision or if the outcome of the appeal might affect our legal jurisdiction or office procedures. If we are represented, it will be for this purpose, not to support either side.

We do not advise either party about whether or not to lodge an appeal or the legal steps they should take. If you intend to appeal you may want to consult a solicitor, talk to your local Citizens’ Advice Bureau or contact your local law centre.

Go to useful contacts for a list of websites and other sources of information.

2.2    Scotland

In Scotland, an appeal against a Determination follows a process known as an “Appeal by Stated Case”. The first step is to write to the Ombudsman (within 14 days after the date of the Determination) asking him to state a case and setting out why you think he has made an error of law. There are very specific requirements about what needs to be included in this application. The Ombudsman must send every other party a copy of this application and those parties will have an opportunity to raise additional questions that they would like resolved on appeal.

Once all the parties have had a chance to raise further questions, the Ombudsman must decide whether he is going to “state a case”. This involves the Ombudsman giving full written reasons for this decision in a format set out in the relevant court rules.

Once the stated case is prepared, each party who has raised questions must decide whether they wish to proceed with the appeal. If they do, they must then apply to the Court of Session to begin the court appeal process.

The Ombudsman is entitled to decide not to state a case in relation to some or all of the questions raised. For example, he may do so where it considers that some or all of the questions do not require consideration or are frivolous.

Any party is entitled to ask the Court of Session to require the Ombudsman to state a case where a question is not addressed in the stated case, or where the Ombudsman has refused to state a case in the first place. Again, this must be done within 14 days of notification of the refusal.

In Scotland, a party who is unsuccessful in any court proceedings is normally required to pay their own costs, as well as the costs of the successful party.

You may wish to obtain legal advice from a solicitor or speak to Citizens Advice Scotland as soon as possible if you are considering or otherwise involved in this route. The appeal process in Scotland is a very strict procedure, set out in law.

3. Judicial Review

Certain types of decisions made by the Ombudsman may be challengeable by way of Judicial Review (for example a decision that the Ombudsman is unable to investigate a complaint). Strict time limits apply. This is usually 3 months from the date of the decision being challenged. If you are considering this route, local advice should be taken.

As there is a statutory right of appeal against Ombudsman determinations judicial review is not the appropriate means of challenging a determination.