Jackson v Parliamentary Ombudsman

A public authority may decline to intervene in a matter where the complainant has, or had, an alternative route for independent adjudication. A complaint challenging that discretionary refusal is not necessarily a complaint of maladministration. The Parliamentary Ombudsman may decline to investigate where the substance of the complaint concerns the exercise of such discretion rather than administrative misconduct. Judicial review permission should be refused where the Ombudsman’s conclusion was lawfully and rationally reached.

Mr Jackson sought permission to appeal from the refusal by Mr Justice Moses to permit judicial review of decisions of the Parliamentary Ombudsman. The Ombudsman had concluded that complaints concerning the Department of Education’s failure to intervene in his dismissal from Burnley College did not raise maladministration. The Ombudsman relied, in part, on the availability of proceedings before an Employment Tribunal.

The first decision was dated 7 March 2000 and was arguably challenged out of time. The Ombudsman maintained the same conclusion in a further decision dated 20 March 2001. The central issue was whether the Ombudsman’s treatment of the complaint was unlawful or irrational.

1. Permission refused. Lord Justice Latham dismissed the application for permission to appeal and agreed with the conclusion of Mr Justice Moses.
2. The applicant’s complaint substantially concerned the Secretary of State’s discretionary decision whether to intervene in his employment dispute. The Secretary of State was entitled to regard the matter as one for resolution through the available Employment Tribunal proceedings, even though another Secretary of State might have taken a different view.
3. The Parliamentary Ombudsman was entitled to conclude that the complaint did not concern maladministration but a refusal to exercise a discretionary power where an alternative external route for investigation had existed. That conclusion was neither unlawful nor irrational.
4. The applicant’s later evidence had not enabled him to overcome the procedural rule in Ladd v Marshall before the Employment Appeal Tribunal. That background did not provide a basis for judicial review of the Ombudsman’s decision.
5. A separate issue concerning the applicant’s daughter was not before the court because she had made no application herself, which was a necessary prerequisite to investigation of her case.
6. The application for permission to appeal was dismissed. The transcript was to be supplied to the applicant at public expense.

• Court of Appeal (Civil Division): Permission to appeal from the decision of Mr Justice Moses dated 28 November 2001 was refused. The court upheld the refusal of permission to apply for judicial review.