Scholarstica Umo, R (On the Application Of) v Commissioner for Local Administration In England

Section 26(6)(c) of the Local Government Act 1974 prevents a local ombudsman investigating maladministration where the complainant has or had a court remedy, subject to the statutory proviso. The existence of factual issues that are difficult to determine by judicial review does not remove the complaint from that provision where the impugned administrative action was connected with the earlier proceedings. Once the complainant has actually commenced judicial review proceedings concerning the relevant action, the proviso does not give the ombudsman discretion to investigate afterwards. Individuals facing both remedies should ordinarily approach the ombudsman first.

The claimant challenged the Commissioner’s refusal to investigate a complaint concerning Enfield London Borough Council’s mistaken advice that she qualified for home student status and a student loan. She had previously brought judicial review proceedings concerning the withdrawal of further loan payments and the council’s reliance on its earlier assessment. The university had also agreed that she could pay home-rate tuition fees. The central questions were whether the earlier proceedings engaged section 26(6)(c) of the Local Government Act 1974, and whether the statutory proviso permitted an investigation despite those proceedings.

1. The application for judicial review was refused. The Commissioner was entitled to treat section 26(6)(c) of the Local Government Act 1974 as engaged because the claimant had potential remedies in common-law legitimate expectation and under section 2 of the Local Government Act 2000.
2. The council’s original decisions in April and July 2000 were central to the earlier judicial review. The earlier claim sought to prevent the council resiling from those decisions and sought continuing financial support based on them. The original decisions were therefore not merely part of the factual history.
3. The fact that some factual issues surrounding an administrative decision may not be readily amenable to judicial review does not take the matter outside section 26(6)(c). The reasoning in R v Commissioner for Local Administration, ex p Field and the approach in R v Commissioner for Local Administration, ex p PH supported that conclusion.
4. The proviso to section 26(6)(c) permits an investigation where it was unreasonable to expect resort to the alternative remedy. However, where court proceedings have actually been instituted, the statutory structure prevents the ombudsman from investigating thereafter. The principles concerning the appropriate use of alternative remedies in Anufrijeva v London Borough of Southwark applied beyond Human Rights Act damages claims and indicated that an ombudsman investigation should generally be considered first.
5. The Commissioner’s decision could not in any event be impugned on public law grounds. The determination of the defendant’s costs was postponed pending further application, with detailed assessment permitted.