Starr v Local Commissioner For Administration

The Local Government Ombudsman has a discretionary power, rather than a duty, to investigate a complaint under Local Government Act 1974, section 26. That discretion includes whether the complaint is timely, whether it discloses maladministration causing injustice, and whether another right or remedy exists. Its exercise is reviewable only on ordinary judicial-review grounds, including Wednesbury unreasonableness or plain legal error. A complainant’s circumstances may be viewed globally, but that does not prevent individual complaints being assessed separately or justify relief without a reviewable error. In homelessness matters, the practical question is whether the person had a place in which to live at the relevant time.

The claimant sought permission to appeal against Maurice Kay J’s refusal of permission to apply for judicial review and his costs order. The proposed judicial review challenged decisions by the Local Commissioner for Administration concerning complaints about Swindon Borough Council and Ashfield District Council, including homelessness, housing, council tax, gas supply, eviction and rehousing.

Turner J had previously refused permission on the grounds of delay and lack of arguable grounds. Maurice Kay J held that the Commissioner’s letters of 29 June 2000 and 8 January 2001 were potentially reviewable, but that the later letter of 2 February 2001 was merely a reply. The central issues were whether the complaints had been wrongly divided and treated as out of time, whether the Commissioner’s decisions were legally or irrationally flawed, and whether the proceedings had been brought promptly.

1. Applications dismissed. The court refused to extend time and upheld the refusal of permission to apply for judicial review. The costs order of £1,750, summarily assessed and adjourned generally, was within the judge’s discretion.
2. Under section 26(1) of the Local Government Act 1974, the Commissioner has a discretionary power to investigate a written complaint by a member of the public claiming injustice caused by maladministration. The power is not a duty. Under section 26(4), a complaint made more than 12 months after the cause arose cannot be entertained unless the discretionary proviso is engaged. Section 26(6) likewise restricts investigation where the complainant has another right or remedy, subject to its proviso.
3. The Commissioner’s exercise of those discretions was amenable to judicial review only if unreasonable in the Wednesbury sense, plainly erroneous, or otherwise affected by legal error. Whether circumstances amounted to maladministration or injustice was largely a matter of fact and judgment for the Commissioner. The court considered that the findings concerning the complaints within the available period were open to her and disclosed no reviewable error.
4. Even treating the complaints as one purported global complaint, the claimant was not entitled to relief. A global presentation did not remove the time issue or establish maladministration or injustice. In homelessness cases, the practical question was whether the claimant actually had a place in which to live at the relevant stage, apart from the separate question of intention.
5. The applications had also not been made promptly. The claimant’s status as a litigant in person, unfamiliarity with housing law and reliance on the overriding objective did not justify interference with the lower courts’ findings on delay. The letter of 2 February 2001 was properly treated as a reply rather than a separate decision, as illustrated by R. v. CLA ex parte Colin Field. The approach to the Commissioner’s discretionary function was supported by R. v. Parliamentary Commissionary ex parte Balchin [1997] General Planning Law 917.

• Court of Appeal (Civil Division): Applications dismissed. The court upheld Maurice Kay J’s refusal of permission and the costs order.
• High Court: Maurice Kay J refused permission to apply for judicial review and ordered costs of £1,750, adjourned generally.
• High Court: Turner J had earlier refused permission on the papers because the claim was out of time and disclosed no properly arguable grounds.