Senior-Milne, R (on the application of) v The Parliamentary and Health Service Ombudsman

The Parliamentary Ombudsman’s jurisdiction depends on the statutory distinction between prudential regulation and business regulation. Prudential regulation concerns an insurer’s ability to meet its liabilities; supervision of information supplied to policyholders about a demutualisation is business regulation where the complaint concerns alleged misleading effects on policyholders. A judicial review claim must be brought promptly and within the statutory or procedural time limit. A claimant cannot avoid that requirement by characterising a decision as a continuing failure where the grounds arose on a particular date. A complaint to the Parliamentary Ombudsman must ordinarily be referred by a Member of the House of Commons. Permission may be refused where the challenge has no realistic prospect of success.

The claimant, a former Scottish Widows policyholder, complained that the Financial Services Authority had failed properly to supervise a circular issued before Scottish Widows’ demutualisation. The Parliamentary Ombudsman concluded that the complaint concerned business regulation outside her jurisdiction and declined to investigate.

The claimant sought judicial review out of time. He also sought judicial review of the Ombudsman’s failure to investigate a later complaint alleging that her staff had misled him about jurisdiction. The court considered whether either claim had a realistic prospect of success.

1. First claim: permission to apply for judicial review was refused. The Parliamentary Ombudsman was entitled to conclude that the complaint about the 1999 Circular concerned business regulation. Prudential regulation focused on whether Scottish Widows could meet its liabilities, including its guaranteed annuity rate liabilities. The complaint instead concerned whether policyholders had been misled into agreeing to the demutualisation. The Ombudsman’s jurisdictional conclusion was logical and correct: [2009] EWHC 2240 (Admin).

2. The distinction was not altered by the Insurance Companies Act 1982. The statutory requirements concerning notice and information supplied to policyholders did not convert supervision of the Circular into prudential regulation.

3. In any event, the claim was brought outside the requirement in Part 54.5 of the Civil Procedure Rules 1998 that a claim be filed promptly and within three months after the grounds first arose. The relevant date was the Ombudsman’s decision letter of 6 February 2008. There was no continuing reviewable decision, and the explanation for delay did not justify extending time under Part 3.1(2)(a).

4. The allegation that the Ombudsman’s staff concealed material facts was unsupported. The claimant had been told the reasons for the jurisdictional decision, and no relevant concealment was shown.

5. Second claim: the application was dismissed. The later complaint had not been referred through a Member of the House of Commons, as required by section 5(1) of the Parliamentary Commissioner Act 1967. Even if an exception were possible, the correspondence disclosed no proper basis for investigating the allegation that staff had lied, and the complaint had no reasonable prospect of success.

6. The defendant was awarded £3,120 for the costs of the Acknowledgement of Service. The approach in R (Mount Cook Land Ltd) v Westminster City Council [2004] 1 PLR 29 was applied.

The judgment records that permission had previously been refused on paper by His Honour Judge Kaye QC. The present hearing was a renewed application for permission before the Administrative Court. Permission was refused on the first claim and the second claim was dismissed.