Summary
Findings by the Parliamentary Ombudsman that maladministration caused injustice are binding on the public authority, subject to judicial review where the findings are objectively flawed, irrational, peripheral or displaced by genuinely fresh evidence. Recommendations are not binding, but a public authority must reconsider them lawfully.
Official information about occupational pension protection was misleading where it suggested that the minimum funding requirement secured accrued benefits without adequately explaining the risks. Causation still required a material increase in risk or loss of a chance of a better outcome in the individual case. A large-scale failure to provide accurate information did not, without more, establish injustice for every person who suffered pension loss.
Factual background
The claimants were members of occupational pension schemes which had been wound up with insufficient assets to meet their promised benefits. Following a lengthy investigation, the Parliamentary Commissioner for Administration found maladministration in the Government’s pension information, in a 2002 decision concerning the minimum funding requirement, and in the resulting injustice. She recommended that the Government consider restoring affected pension entitlements.
The Secretary of State rejected the relevant findings and recommendation. The claimants sought judicial review, arguing that the Ombudsman’s findings were binding and that the recommendation had been unlawfully rejected. They also advanced a free-standing claim under Article 1 of the First Protocol to the European Convention on Human Rights.
Held
- Parliamentary privilege. Evidence given by the Ombudsman to a House of Commons Select Committee could not be relied on in court because this would inhibit freedom of speech in Parliament and contravene Article 9 of the Bill of Rights 1689. A Select Committee report was not itself excluded by Article 9, but it was not useful to the court on the legal issues, which were for the court to decide.
- Status of Ombudsman findings. The statutory schemes under the Parliamentary Commissioner Act 1967 and the Local Government Act 1974 distinguish findings from recommendations. Findings of maladministration and injustice are binding unless successfully challenged by judicial review. The same principle applies to the Parliamentary Ombudsman. The appropriate exceptions include findings objectively shown to be flawed or irrational, findings peripheral to the decision, or genuine fresh evidence requiring reconsideration. Recommendations are not mandatory orders and are not binding.
- First Finding. The Ombudsman was entitled to find that official information about the minimum funding requirement was inaccurate, incomplete, inconsistent and potentially misleading. The principal leaflet gave the clear impression that members’ pensions were safe whatever happened to the employer, although the statutory scheme did not provide that security. The Secretary of State’s rejection of the maladministration finding was therefore quashed.
- Causation of injustice. The Ombudsman could not treat every person who lost pension benefits on winding-up as having suffered injustice in consequence of maladministration. The statutory requirement of injustice in consequence of maladministration required at least a material increase in risk or loss of a chance of a better outcome caused by the maladministration in the individual case. The rejection of this part of the First Finding was upheld.
- Third Finding. The Secretary of State was entitled to reject the finding that the 2002 change to the minimum funding requirement involved maladministration. The Department had a clear recommendation from the actuarial profession, supported without qualification by the Government Actuary’s Department. The absence of further documentary evidence did not itself establish maladministration.
- First Recommendation. The recommendation to consider restoring pension entitlements was not binding, but its rejection had to be reconsidered in light of the upheld finding that maladministration had occurred. The Secretary of State had not misunderstood the recommendation or unlawfully failed to consider alternative funding arrangements. The rejection was nevertheless quashed because the political assessment might differ once the finding of maladministration was properly accepted.
- Human rights claim. The claim under Article 1 of the First Protocol failed. An occupational pension entitlement did not require the State to provide full reimbursement for losses sustained by a large class whose schemes were not under direct governmental control. The claim was also out of time under section 7(5) of the Human Rights Act 1998; no extension was granted because the claim lacked substantive merit.
The Secretary of State was directed to reconsider the First Recommendation.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
Not stated in the judgment.
Appeal route
- This judgment [2007] EWHC 242 (Admin) High Court (Administrative Court)
- Appealed to[2008] EWCA Civ 36Outcomesecretary of state’s appeal dismissed; claimants’ appeal allowed in part
Key cases cited
15 authorities cited.
- Wilson and others v. Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40
- Pepper v Hart [1993] AC 593
- R v Secretary of State for the Home Department, Ex parte Brind (Brind, Ex parte) [1991] 2 WLR 588
- R v F [2007] EWCA Crim 243
- Carson & Anor v Secretary of State for Work and Pensions [2003] EWCA Civ 797
- Hamilton v Al Fayed [1999] 1 WLR 1569
- R v Parliamentary Comr for Standards, Ex parte Al Fayed [1998] 1 WLR 669
- R v Warwickshire County Council, ex parte Powergen plc [1998] EWCA Civ 2280
- Danaei, R (on the application of) v Secretary Of State For Home Department [1997] EWCA Civ 2704
- Blanco Callejas v Spain 18 June 2002
- R v Local Commissioner for Administration in North and North East of England, Ex p Liverpool City Council [2001] 1 All ER 462
- Prebble v Television New Zealand Ltd [1995] 1 AC 321
- R v Local Comr for Administration for the South, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire, Ex p Eastleigh Borough Council (R v Local Comr for Administration for England, Ex p Eastleigh Borough Council) [1988] QB 855
- Marckx v Belgium (1979) 2 EHRR 330
- R v Parliamentary Commissioner for Administration, ex parte Balchin CO/2323/95
Sign in to see how the court treated each authority. A free account is enough.
Cases citing this case
6 later cases · 1 positive · 3 neutral · 2 caution
Most senior citing decisions:
- Millgate Development Ltd, R (on the application of) v Wokingham Borough Council [2011] EWCA Civ 1062 considered
- Kimathi & Ors v Foreign And Commonwealth Office [2017] EWHC 3379 (QB) considered
- Age UK, R (on the application of) v Secretary of State for Business, Innovation & Skills & Ors [2009] EWHC 2336 (Admin) distinguished
- Wheeler, R (on the application of) v Office of the Prime Minister & Anor [2008] EWHC 1409 (Admin)
- Office of Government Commerce v Information Commissioner (Rev 1) [2008] EWHC 737 (Admin)
- Federation of Tour Operators & Ors, R (on the application of) v HM Revenue & Customs & Ors [2007] EWHC 2062 (Admin)
Sign in for the full treatment table. A free account is enough.