Mencap, R (On the Application Of) v Parliamentary Health Service Ombudsman

At the permission stage of judicial review, a claim proceeds if the proposed ground is genuinely arguable; the court need not resolve its merits. It was seriously arguable that breach of the statutory duty to make reasonable adjustments under section 21(1) of the Disability Discrimination Act 1995 could itself amount to maladministration or service failure under section 3 of the Health Service Commissioners Act 1993, without a further showing that conduct fell outside reasonable practice. Where only a declaration about future decision-making is sought, underlying individuals need not be served as interested parties. Important public-interest issues should not be blocked by ordinary defence costs. Permission was granted, the claim remitted, and a reciprocal protected costs cap imposed.

Mencap challenged a joint report by the Parliamentary Health Service Ombudsman and the Local Government Ombudsman concerning complaints about healthcare provided to six people with learning disabilities who had died. Permission to apply for judicial review was refused on the papers and after an oral hearing before Pitchford J in the Administrative Court.

On appeal, Mencap pursued one issue: whether the Ombudsman had adopted an erroneous approach to the relationship between breach of the statutory reasonable-adjustments duty and maladministration or service failure. The appeal also raised procedural defects, delay, the need to serve the doctors concerned, the public interest, and costs. The central question was whether the proposed ground was arguable and, if so, whether those considerations justified refusing permission.

Appeal allowed and permission granted. Richards LJ gave the judgment, with which Goldring LJ agreed. Sedley LJ agreed and emphasised the public importance of the issue.

1. The relevant question at this stage was whether Mencap’s ground was arguable. The Ombudsman’s detailed merits submissions did not demonstrate that the claim was unarguable. The Court therefore left the substantive issue open for determination on the full judicial review hearing.
2. The Ombudsman’s report appeared internally inconsistent. One passage described service failure or maladministration as requiring conduct to fall sufficiently far below the applicable standard, while another stated that failure to meet the reasonable-adjustments standard would itself amount to maladministration or service failure. It was seriously arguable that breach of section 21(1) of the Disability Discrimination Act 1995 could itself constitute service failure or maladministration for the purposes of section 3(1) of the Health Service Commissioners Act 1993, since conduct breaching a statutory duty could not fall within the range of reasonable practice.
3. The claim form was procedurally defective and an extension of time was required. However, the relief had been narrowed to a declaration concerning future decision-making. The report was not to be quashed and its findings would remain unaffected. The doctors whose conduct underlay the report were therefore not interested parties who had to be named and served. The resulting absence of prejudice justified the modest extension sought.
4. The public interest favoured resolving an important legal issue affecting future complaints. The report’s favourable reception, accepted recommendations, and any possible effect on its weight were insufficient reasons to refuse permission where its findings were not challenged. The Ombudsman’s ordinary expenditure in defending judicial review was likewise not a sufficient reason.
5. The matter was remitted to the Administrative Court for substantive consideration. Mencap was allowed reasonable time to amend the precise declaratory relief sought. A reciprocal protected costs order limiting each party’s liability to £25,000 was made.

• Court of Appeal (Civil Division): allowed the appeal, granted permission on the single ground pursued, permitted amendment of the declaratory relief, remitted the claim for substantive consideration, and made a reciprocal £25,000 protected costs order.
• Administrative Court: Pitchford J refused permission to apply for judicial review on the papers and after an oral hearing.