Abernethy, R (on the application of) v Local Government Ombudsman

A Local Government Ombudsman may refuse to investigate a complaint which appears to involve no significant injustice. The Ombudsman has a very wide discretion under the Local Government Act 1974, and prioritising complaints involving significant injustice is a proper exercise of that discretion, particularly given limited resources. Judicial review proceedings may be dismissed where the original dispute has been resolved, the remaining issue is merely freestanding, and no effective remedy would follow. Article 6 does not require a court to determine an issue which has ceased to have substantial importance to the dispute.

The applicant challenged the Ombudsman’s initial refusal to investigate his complaint about Westminster City Council’s library reorganisation. Permission for judicial review was granted, but the Ombudsman later reconsidered the complaint, investigated it and issued a final report awarding compensation for certain procedural failings.

The applicant sought to reactivate and amend the stayed proceedings to challenge the final report and the original refusal. Mr Justice Turner dismissed those applications and directed the applicant to bring any challenge to the final report in fresh proceedings. The applicant sought permission to appeal, alleging procedural irregularity, infringement of Article 6 and the public importance of the unresolved issue concerning the Ombudsman’s “no significant injustice” approach.

1. Application refused. There was no compelling reason to grant permission to appeal.
2. The Ombudsman could lawfully refuse to investigate on the basis that the complaint appeared to involve no significant injustice. The statutory focus is investigation of maladministration causing injustice under section 21(1) of the Local Government Act 1974. Given the Ombudsman’s limited resources, it was proper to prioritise complaints involving significant injustice.
3. Section 26(10) of the Local Government Act 1974, together with Re Fletcher’s application [1970] 2 All ER 527 and The Queen v The Parliamentary Commissioner for Administration ex parte Dyer [1994] 1 WLR 621, demonstrated that the Ombudsman has a very wide discretion when deciding whether to investigate. The “no significant injustice” test fell within that discretion.
4. The order dismissing the judicial review proceedings was not procedurally defective. Civil Procedure Rule 54.12 addressed setting aside permission and did not prevent dismissal of the substantive application. The court’s powers under Rule 3 and its inherent jurisdiction remained available.
5. Dismissal was consistent with the overriding objective because the substantive dispute concerning the initial refusal had been resolved and the remaining issue lacked merit. Courts do not ordinarily determine freestanding points of law without an effective remedy attached to them.
6. There was no infringement of Article 6. The applicant had obtained the substance of the relief sought, and Article 6 could not compel determination of an issue no longer of substantial importance to the dispute.

• Court of Appeal (Civil Division): Permission to appeal from Mr Justice Turner’s order of 21 January 2002 was refused.
• High Court: Mr Justice Turner dismissed the applications to lift the stay and amend the judicial review proceedings, dismissed the existing judicial review application, and directed the applicant to serve a fresh application.
• High Court: Mr Justice Keene had earlier stayed the proceedings sine die after the Ombudsman offered to reconsider the complaint.