Chapter 13 Notes on key cases

Ombudsmen

Bradley v Work and Pensions Secretary [2008] EWCA Civ 36: First judicial review challenge to a decision by the Government not to accept the recommendations in a Parliamentary Ombudsman’s report. The Court of Appeal rejected the Parliamentary Ombudsman’s argument that ‘the Secretary of State must proceed on the basis that the ombudsman’s findings of injustice caused by maladministration are correct unless they are quashed in judicial review proceedings’ [135]. The Court held that it is not necessarily unlawful for a public authority to reject the Ombudsman’s conclusions, even if those conclusions were rational. The judges held that it is ‘in the parliamentary arena’ [41] that a minister must justify a decision not to give a remedy recommended by the Parliamentary Ombudsman, and that a minister might lawfully give, as part of that justification, reasons for rejecting the Ombudsman’s findings of maladministration.See pp 485-7.
Nevertheless, the Court quashed the minister’s response as unlawful, on the ground that ‘no reasonable Secretary of State could rationally disagree’ with the ombudsman’s findings [73]. The Court ordered him to make a fresh decision on the basis that the Ombudsman was right that the Government’s role in the pension crisis had involved maladministration.
R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855: The Court of Appeal held that a Council was entitled to a declaration that the Local Government Ombudsman’s conclusion was unauthorized by law and of no effect. The Ombudsman reported that a complainant had suffered injustice as a result of the Council’s maladministration, even though he could not say that good administration would have prevented the problem. The Court of Appeal overruled the approach of Nolan J, who considered that relief was unnecessary because the Council could just respond to the Ombudsman’s report with equal publicity.
R v Local Commissioner for Administration, ex p Bradford Metropolitan City Council [1979] QB 287: The Court of Appeal refused to grant an order prohibiting the Local Government Ombudsman from investigating alleged maladministration by a local authority. Although s 26(2) Local Government Act 1974 requires a complaint to specify ’the action alleged to constitute maladministration’, there need not be a specific assertion of maladministration (e.g. delay, incompetence). It is sufficient to specify the action in connection with which the complaint of maladministration was made. Lord Denning MR considered the meaning of ‘maladministration’, and Eveleigh LJ held that a faulty decision may amount to maladministration.
R v Parliamentary Commissioner for Administration, ex p Balchin [1997] JPL 917: Sedley J held that in investigating a complaint of maladministration by the Department of Transport, the Parliamentary Ombudsman unlawfully failed to take account of a potentially decisive relevant consideration. The Secretary of State approved a road order made by a County Council; although the Department had no authority to require compensation to person’s affected by the plan, the Balchins (whose adjacent land was blighted by the plan) complained that the Department should have demanded assurances that they would be adequately compensated. Sedley J held that the relevant consideration omitted by the Ombudsman was the hostile stance of the Council, and the potential effect if the Secretary of State drew the Council’s attention to its discretionary power to purchase blighted land.
R v Commissioner for Local Administration, ex p Croydon LBC [1989] 1 All ER 1033 (QBD): Parents complained to the Local Government Ombudsman regarding a decision of an Education Appeal Committee. The Local Education Authority sought judicial review of the Ombudsman’s finding of maladministration and the Court of Appeal granted a declaration that the Ombudsman’s report was void and of no effect. Woolf LJ gave guidance on the meaning of the exclusion investigations by the ombudsmen where the complainant has a ‘remedy by way of proceedings in any court of law’ (Local Government Act 1974 s 26(6)).
R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621: A complainant sought judicial review of the Parliamentary Ombudsman’s refusal to re-open an investigation, the scope and outcome of which the complainant was dissatisfied with. The High Court refused the application. Whilst the Court accepted that the Ombudsman was subject to judicial review, it indicated that the courts would not readily be convinced to interfere with the Ombudsman’s broad discretion and Simon Brown LJ indicated that it would be very difficult to mount an effective attack on unreasonableness grounds. The Ombudsman was entitled to limit the scope of his investigation, and fairness did not require the complainant to be shown the draft report. Once the report was submitted to the relevant MP and department, the Ombudsman would be unable to re-open his investigation without another MP referral.
R v LCA, ex p Liverpool City Council [2001] 1 All ER 462 (CA): The Local Government Ombudsman found maladministration in the conduct of local councillors in granting planning permission for the erection of a new stand at a football club’s stadium. The Court of Appeal refused an application for judicial review of the Ombudsman’s report. First, in determining bias, the Ombudsman need not be constrained by the legal standard for bias, because although maladministration and unlawfulness are overlapping, they are not synonymous. Secondly, the Court of Appeal adopted a broad interpretation of the proviso to Local Government Act 1974 s 26(6). This section excludes the Ombudsman’s jurisdiction where the complainant has an alternative remedy; the proviso allows the Ombudsman nevertheless to investigate if satisfied that it is not reasonable to expect the complainant to have resort to the alternative remedy.