Evison, R (on the application of) v The Commissioner for Local Administration & Anor

The Local Government Ombudsman has a statutory power, rather than a duty, to investigate maladministration complaints. Where the complainant has a right of appeal, reference or review before a court or tribunal, the complaint is generally barred under section 26(6) of the Local Government Act 1974. The exception applies only where the Ombudsman is satisfied that it is unreasonable, in the particular circumstances, to expect the complainant to use that remedy. Once legal proceedings have been taken concerning the substantive complaint, the Ombudsman may rationally decline to investigate it. The court refused permission to challenge that decision.

The claimant sought renewed permission for judicial review of the Local Government Ombudsman’s decision that he could not investigate his complaint about South Bedfordshire District Council. The complaint concerned alleged maladministration in the council’s handling of dangerous chimney structures at adjoining properties.

The claimant had previously pursued related proceedings in the County Court and other courts, including a claim concerning alleged misrepresentations about the safety and repair of the structures. The central issue was whether the Ombudsman had acted irrationally in concluding that those proceedings engaged the statutory restriction on investigation.

1. Permission refused. The application sought judicial review of the Ombudsman’s decision that he had no jurisdiction to pursue the complaint.
2. Section 26(1) of the Local Government Act 1974 confers a power on the Commissioner to investigate a complaint of injustice caused by maladministration. It does not impose a duty to investigate every complaint.
3. Section 26(6) prevents an investigation concerning an action where the aggrieved person has or had a right of appeal, reference or review before a tribunal or court. The proviso permits investigation only if the Commissioner is satisfied that, in the particular circumstances, it is not reasonable to expect the person to resort to that remedy.
4. The statutory policy gives a complainant a choice between pursuing the Ombudsman’s informal investigative process and taking legal action. Once legal proceedings have been commenced concerning the substantive complaint, the complaint is generally barred from further investigation by the Ombudsman.
5. The claimant had pursued County Court proceedings concerning the alleged condition of the chimney structures and the council’s alleged misrepresentation of their safety. In those circumstances, the Ombudsman had applied the statutory provisions and had acted rationally in declining to investigate further.
6. The interested party was awarded £4,237.96 in costs, comprising £1,737.96 for the acknowledgement of service and £2,500 for subsequent work. The Ombudsman was awarded £3,250, comprising £1,750 for the acknowledgement of service and £1,500 for subsequent work.

The judgment describes earlier County Court, magistrates’ court and High Court proceedings arising from the underlying dispute. This was a renewed application for permission to apply for judicial review. Permission was refused by the High Court (Administrative Court).