Adams, R (on the application of) v The Commission for Local Administration In England & Ors

A Local Government Ombudsman may discontinue an investigation where satisfied with the authority’s action or proposed action, even if the investigation is complete in an ordinary sense. The Ombudsman must nevertheless provide a statutory statement of reasons, whether discontinuing the investigation or completing it without issuing a report. A failure to provide any reasons is unlawful without requiring proof of substantial prejudice. The Ombudsman may act as a mediator and communicate separately with the parties while seeking a settlement, provided the process remains fair. The power to recommend measures to prevent future injustice does not ordinarily extend to recommending reimbursement of solicitors’ market-rate costs where the complainants incurred no liability for those costs.

The claimant and her sister complained to the Commission for Local Administration in England about maladministration by the London Borough of Lambeth in the handling of their housing application. Following the Ombudsman’s intervention, Lambeth rehoused them, paid compensation and agreed to review its procedures. The Ombudsman then discontinued the investigation without publishing a report or providing a statutory statement of reasons.

The claimant sought judicial review on grounds including lack of power to discontinue, failure to provide reasons, procedural unfairness and failure to recommend payment of her solicitors’ costs under the Local Government Act 1974. The central issues were the meaning and interaction of the Ombudsman’s powers under sections 24A, 30 and 31.

1. Discontinuance. Under section 24A(7) of the Local Government Act 1974, the Ombudsman may discontinue an investigation when satisfied with action taken or proposed by the authority. An investigation may be complete in the ordinary sense but incomplete in the statutory sense, because it has not reached the stage at which a report under section 30 could be issued.
2. Statement of reasons. Whether the investigation is discontinued or completed without a report, sections 30(1B) and 30(1C) require a statement of reasons to be prepared and sent to the parties. The letter discontinuing the investigation contained no reasons, and later correspondence could not cure that failure. The claimant was entitled to a declaration that the statutory duty had been breached. Substantive relief requiring a further statement two years later would have been pointless formalism.
3. Natural justice. An Ombudsman has a legitimate mediatory role. Separate correspondence, including suggestions about compensation, is not inherently unfair where the Ombudsman makes clear that settlement is being pursued and gives the complainant an opportunity to comment.
4. Costs. The authorities concerning costs in court proceedings, including In re appeals by Governing Body of JFS and others [2009] 1 WLR 2353 and R(Bahta) v SSHD [2011] EWCA Civ 895, were of limited assistance because the Ombudsman is neither a court nor a tribunal. Section 31(2B) did not support a recommendation for market-rate costs incurred by solicitors acting under Legal Help where the complainants had incurred no costs. Extending the provision to deterrence or redistribution of public funding would be speculative and would erode the distinction between Legal Help and Legal Representation. The approach in R(Maxwell) v the Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 supported treating the Ombudsman’s procedure as an affordable, non-judicial alternative.
5. Except for the declaration on reasons, the application for judicial review was dismissed.