K v Cornwall County Council

Where a claim for damages under the Human Rights Act is properly pleaded alongside judicial review proceedings, the court should not dismiss the proceedings on the assumption that a complaint to the Local Government Ombudsman provides an adequate alternative remedy if section 26(6)(c) of the Local Government Act 1974 prevents the Ombudsman investigating the same matter. A decision based on that mistaken assumption may be revisited on appeal. The Court of Appeal may grant permission to apply for judicial review and remit the matter to the Administrative Court, leaving the damages claim and any issue concerning the effect of an earlier consent order to be determined there. Costs may likewise remain at large where the lower court’s decision is effectively quashed and the judicial review claim continues.

The claimant, a young adult with multiple care needs, sought judicial review of Cornwall County Council’s alleged failure to provide suitable accommodation and also claimed damages under the Human Rights Act. Following undertakings and a consent order, Mr Justice Sullivan refused to restore the judicial review application against the Council and dismissed the proceedings, considering that a complaint to the Local Government Ombudsman was available and sufficient. He also refused to join the West of Cornwall NHS Primary Care Trust because an internal review procedure was available.

On the claimant’s application for permission to appeal, the central issue was whether the Ombudsman could provide an alternative remedy when section 26(6)(c) of the Local Government Act 1974 excluded matters for which court proceedings were available.

1. Application granted. The Court of Appeal granted permission to appeal and permission to apply for judicial review. The matter was returned to the Administrative Court, with the damages claim to be treated as at large in that jurisdiction.
2. Mr Justice Sullivan’s decision had proceeded on a mistaken basis. Section 26(6)(c) of the Local Government Act 1974 prevented the Local Government Ombudsman from investigating maladministration in respect of which the aggrieved person had or had had a remedy by proceedings in a court of law. The Ombudsman therefore could not properly be treated as the alternative remedy for the pleaded damages claim.
3. The Court expressed sympathy for the approach taken below, which reflected what had been said in Anufrijeva about resort to the Ombudsman. That discussion had not expressly taken account of section 26(6)(c), creating the difficulty in the present case.
4. The possible effect of paragraph 2(a) of the earlier consent order remained for determination in the Administrative Court. The claimant could argue that the Council had breached its undertakings so that the provision did not take effect, and alternatively that the order had been entered into under a mistake of law. The Court of Appeal did not decide those issues.
5. Because the decision on restoration was effectively quashed and the judicial review claim remained alive and post-permission, the costs issue also remained at large until the substantive hearing.

• High Court, Administrative Court: Mr Justice Sullivan refused to join the West of Cornwall NHS Primary Care Trust, refused to restore the judicial review application against Cornwall County Council, dismissed the proceedings, and made a costs order subject to enforcement only with leave.
• Court of Appeal (Civil Division): On an application for permission to appeal, the court granted permission, granted permission to apply for judicial review, returned the matter to the Administrative Court, and left the damages and costs issues at large.