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

The Ombudsman’s discretion to investigate complaints is reviewable on ordinary judicial review grounds, but the court will intervene only in the usual limited circumstances. The statutory exclusion for school-related conduct, management and discipline extends to an authority’s active investigation of such matters. A complaint about the manner of that investigation therefore falls outside the Ombudsman’s jurisdiction where determining maladministration would require examination of the underlying school events. Even if jurisdiction exists, the Ombudsman may decline to investigate where a fair and meaningful outcome cannot be reached without entering matters outside his jurisdiction and public expenditure would not be reasonably incurred.

The claimant challenged the Commissioner’s refusal to investigate complaints about Bromley Council’s handling of allegations that a teacher had mistreated his son. The complaints concerned the alleged bias and inadequacy of the Council’s investigation, including its failure to interview potential witnesses. The Commissioner considered that the complaint was connected with matters excluded from his jurisdiction under the Local Government Act 1974.

The claimant sought judicial review, arguing that the complaint concerned maladministration in the Council’s investigation and that remedies such as an apology or recommendations remained available. The central issues were the construction of the statutory exclusion and, alternatively, whether the Commissioner had lawfully exercised his discretion not to investigate.

1. The claim was dismissed. The court held that the Commissioner’s jurisdiction under section 26 of the Local Government Act 1974 was subject to Schedule 5 paragraph 5(2)(b), which excludes action concerning conduct, curriculum, internal organisation, management or discipline in a maintained school.

2. The relevant action was the Council’s investigation of the allegations. Although the complaint was framed as one about the manner of investigation, an active investigation of alleged conduct in a school was itself action concerning conduct in a school. The statutory language was wide enough to cover the investigation. A merely passive failure to process a complaint might raise a different question, but active investigative steps, however misguided, fell within the exclusion.

3. The Commissioner’s decision was in any event reviewable on ordinary judicial review grounds. Sections 26(8) and 26(10) conferred a wide discretion, so intervention would be justified only where material considerations were ignored, immaterial matters considered, or the decision was perverse: R v the Parliamentary Commissioner for Administration ex parte Dyer 1994 1 WLR 621; R v Local Commissioner for Administration ex parte Eastleigh Borough Council [1988] QB 855.

4. The Commissioner’s reasons did not fully address the claimant’s proposed remedies or the alleged defects in the investigation. Nevertheless, viewed overall, he was entitled to conclude that a fair and meaningful investigation would probably require examination of the underlying school events, which he could not lawfully undertake, and that public expenditure would not reasonably be incurred. The broad concept of injustice in Ombudsman legislation, including unfair or incompetent administration causing a sense of outrage without compensable loss, did not require investigation where a fair result could not be obtained: R v Parliamentary Commissioner for Administration ex parte Balchin [1998] 1 PLR 1.

There was no order as to costs, subject to detailed Community Legal Services assessment. Permission to appeal was refused, with time extended for an application to the Court of Appeal from receipt of the corrected transcript.

First-instance judicial review proceedings. The judgment records that permission to bring the claim had previously been granted by Ouseley J, but no lower-court judgment is identified.