Parish, R (on the application of) v The Pensions Ombudsman

The Pensions Ombudsman’s discretion to investigate a complaint must be exercised on the basis of the complaint actually advanced. A complaint is not barred merely because an earlier judicial review determined a materially different case, even if the two complaints share factual issues. The court may intervene where the Ombudsman declines to investigate on the mistaken premise that the complaint has already been decided. The Ombudsman’s jurisdiction includes fact-finding and consideration of maladministration, including faulty or incompetent administration falling short of a legal breach. A possible statutory bar arising from earlier employment tribunal proceedings requires examination of whether those proceedings were “in respect of” the matters to be investigated.

Prof. Parish sought enhanced pension benefits following the termination of his employment by the Health Development Agency. He first complained to the Pensions Ombudsman that, assuming the performance criticisms relied on by the Agency were correct, his dismissal should nevertheless have been treated as being in the interests of the efficiency of the service.

He also issued judicial review proceedings on substantially the same assumed factual basis. Stanley Burnton J refused permission on the merits. The claim was later discontinued after the Ombudsman accepted that he had jurisdiction to investigate.

Prof. Parish subsequently advanced a different complaint: that the performance criticisms were spurious and that the true reason for dismissal had to be investigated. The Ombudsman declined to investigate, considering that the complaint had already been determined by the earlier judicial review. The central issue was whether that conclusion was correct.

1. The Ombudsman’s decision was based on a mistaken premise. The original complaint and the earlier judicial review proceeded on the assumption that the performance criticisms relied on by the Health Development Agency were correct. The later complaint challenged that assumption and asked the Ombudsman to investigate the true reason for the dismissal. It therefore had not already been determined by the Administrative Court.
2. The Ombudsman’s discretion was reviewable. Whether to investigate was ordinarily a matter for the Ombudsman’s discretion. However, he exercised that discretion because he considered that the complaint had already been decided. That conclusion was erroneous, so the exercise of discretion was flawed and amenable to judicial review.
3. The issue remained capable of investigation. Even if regulation E3(2)(b)(ii) of the National Health Service Pension Scheme Regulations 1995 permitted the employing authority to withhold agreement, it could not be assumed that the Board would have reached the same conclusion had it known the true reason for dismissal. The Guidelines and Regulations required further consideration of the scope of the phrase “in the interests of the efficiency of the service”.
4. The Ombudsman’s new statutory point was unresolved. The Ombudsman argued that section 146(6)(a) of the Pension Schemes Act 1993 barred investigation because the employment tribunal proceedings concerned the true reason for dismissal. That issue could not be decided without further evidence, particularly the tribunal pleadings. A common factual issue did not necessarily mean that the matters to be investigated had been the subject of proceedings within section 146(6)(a).
5. The hearing was adjourned for further argument on that statutory point. Costs, the terms of the order and permission to appeal were left over.

1. Earlier Administrative Court proceedings: Stanley Burnton J considered the original judicial review claim on its merits and refused permission to proceed. The claim was later discontinued.
2. High Court (Administrative Court): The present judicial review claim was partly determined. The court held that the Ombudsman had proceeded on a mistaken premise, but adjourned the claim for further argument on a separate possible statutory bar under section 146(6)(a) of the Pension Schemes Act 1993.