Maxhuni, R (on the application of) v Commissioner for Local Administration for England

For section 30(1) of the Local Government Act 1974, a Local Commissioner conducts an investigation only where it is taken to completion. A report of its results is required only in that event. A Commissioner who decides not to begin an investigation, or who discontinues one, must instead provide a statement of reasons. The distinction reflects the different functions of a report on the merits and an explanation for not completing an investigation. An otherwise academic appeal may be heard where a discrete question of statutory construction is likely to recur and resolution serves the public interest.

The appellant complained that the London Borough of Newham had delayed dealing with housing-benefit claims affecting him and other hostel residents. The Local Commissioner began an investigation but discontinued it after accepting the authority's proposed compensation as a reasonable remedy. He did not issue a report.

Stanley Burnton J, considering the matter on paper, and Cresswell J, on the renewed oral permission application, rejected the contention that discontinuance required a report. Sedley LJ granted permission to appeal on that issue. Although the succeeding Commissioner later decided to continue the investigation, making the individual dispute academic, the court heard the appeal because the point was of general importance.

The central issue was whether a Commissioner who initiates and then discontinues an investigation must issue a report under section 30(1) of the Local Government Act 1974.

Appeal dismissed unanimously. Lord Justice Simon Brown gave the only reasoned judgment, with Lord Justice Dyson and Sir Swinton Thomas agreeing.

1. The court properly determined the appeal despite its being academic between the parties. The issue was a discrete question of statutory construction, did not require detailed factual examination, and was likely to recur in many cases. This was within the public-interest approach described in R v Home Secretary, ex parte Salem [1999] 1 AC 450.
2. Section 30(1) of the Local Government Act 1974 addresses two alternatives. A Commissioner who conducts an investigation must send a report of its results. A Commissioner who decides not to conduct one must send a statement of reasons.
3. Where an investigation is begun and later discontinued, the word conducts means conducting it to completion, rather than merely initiating it. The results of an investigation are the merits-based product of a completed inquiry into maladministration. They state whether injustice was caused and whether the complaint is upheld or rejected.
4. Accordingly, discontinuance is within the second alternative. It requires a statement explaining why the investigation was not completed, not a report of results. The broad discretion under section 26(10) to initiate, continue or discontinue an investigation did not alter that construction.
5. R v Commissioner for Local Administration, ex parte Croydon LBC [1989] 1 All ER 1033 did not assist the contrary argument. Its discussion of section 26(6) was not determinative, since the same practical considerations govern a later-discovered alternative remedy whether the relevant discretion is treated as arising under the proviso to section 26(6) or section 26(10).

The court upheld Cresswell J's construction. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the construction adopted below: [2002] EWCA Civ 973.
• High Court, Queen's Bench Division, Administrative Court (Cresswell J): on a renewed oral application for permission to apply for judicial review, held that discontinuance of an investigation did not require a report under section 30(1) of the Local Government Act 1974.
• High Court, Queen's Bench Division, Administrative Court (Stanley Burnton J): had reached the same conclusion when considering the application on paper.