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

Section 146(6)(a) does not prevent the Pensions Ombudsman investigating a complaint merely because an Employment Tribunal has considered a related factual issue. The statutory question is whether the matter that would be the subject of the Ombudsman’s investigation has been begun in other proceedings. Different legal questions may arise from the same facts. A claim concerning unfair dismissal is distinct from an investigation into whether dismissal occurred in the interests of the efficiency of the service. Although the Ombudsman retains a discretion whether to investigate, a decision refusing investigation on legally erroneous grounds may be quashed. The court should ordinarily preserve that discretion rather than compel investigation unless no residual discretionary issue remains.

The claimant had brought Employment Tribunal proceedings against the Health Development Agency concerning the reasons for, and fairness of, his dismissal. The unfair-dismissal claim was settled, expressly preserving any pension-related claim.

The claimant later asked the Pensions Ombudsman to investigate whether his dismissal had occurred in the interests of the efficiency of the service. The Ombudsman declined to investigate, relying in part on the Employment Tribunal proceedings and other matters addressed in earlier judicial-review proceedings. Following a further hearing ordered in the court’s earlier judgment, the issue was whether section 146(6)(a) barred the proposed investigation and what relief should follow.

1. Statutory bar. The Employment Tribunal had been required to decide whether the dismissal was unfair. The Ombudsman’s proposed investigation concerned whether the dismissal was in the interests of the efficiency of the service. Those were different matters, even though the true reason for dismissal was a factual issue common to both. The mere existence of a common factual issue did not mean that the matter proposed for investigation had been begun in the Employment Tribunal. Section 146(6)(a) of the Pensions Schemes Act 1983 therefore did not prevent investigation.
2. Relief. The Ombudsman had a discretion whether to investigate a particular complaint. The reasons previously relied upon for refusing to investigate had been legally displaced, but the court would not compel investigation if other matters remained capable of engaging that discretion, including possible time-limit issues. The appropriate relief was therefore to quash the refusal and declare that section 146(6)(a) did not preclude investigation, while preserving the Ombudsman’s discretion.
3. Costs. The Ombudsman was ordered to pay the claimant’s costs incurred since the judgment of 20 January 2009. Apart from costs already dealt with by Mr Justice Walker, there was no order as to costs for the earlier stages, reflecting shared fault in the parties’ handling and reading of correspondence.

The judgment followed an earlier judgment in the same judicial-review proceedings, delivered on 20 January 2009, which ordered a further hearing on the Ombudsman’s new jurisdictional point. The present court quashed the Ombudsman’s refusal and granted a declaration concerning section 146(6)(a).