Walker v Parliamentary and Health Service Ombudsman

An Ombudsman’s broad discretion to investigate complaints remains subject to judicial review where the decision-maker misdirects itself in law, ignores relevant considerations or relies on irrelevant ones. The Ombudsman must distinguish administrative acts of court staff from acts performed at a judge’s direction or authority. The former may fall within the jurisdiction conferred by the Parliamentary Commissioner Act 1967; the latter are excluded. A court may grant permission for judicial review where substantial factual and legal errors arguably caused the Ombudsman to misunderstand the complaint, the appeal process or the resulting injustice.

The claimant complained that court staff had mishandled a small-claims appeal and had then mishandled his complaints about that conduct. The Ombudsman declined to investigate in decisions dated 27 July 2009, 20 November 2009 and 25 November 2010. Permission to seek judicial review was refused on the papers on 11 April 2011. The claimant renewed his application, alleging errors concerning the existence and appealability of court decisions, the need for a transcript, the loss of the court file, and the distinction between judicial and administrative action.

The central issues were whether the claim was brought in time, whether the refusal of permission was arguably wrong, and whether the Ombudsman’s decisions were arguably unlawful or unreasonable.

1. Permission granted. The renewed application disclosed an arguable public-law challenge to the Ombudsman’s decisions. The court’s intervention is limited, but it is appropriate where the Ombudsman misdirects itself on law, fails to consider relevant matters or takes irrelevant matters into account, applying the approach stated in R v Commissioner for Administration (ex parte Turpin) EWHC Admin 503.
2. The Ombudsman had arguably misunderstood the factual and procedural position. The lower court had made findings on liability and quantum and had agreed to the parties’ procedural arrangement ending the claim. Those decisions could provide a basis for an appeal, even though no formal order or judgment had been drawn up. The court also appeared to have granted permission to appeal by its order of 27 December 2007.
3. The Ombudsman had arguably treated the complaint as concerned solely with judicial decisions. Under section 5(3) and Schedule 3 of the Parliamentary Commissioner Act 1967, acts of court or tribunal administrative staff performed at the direction or authority of a judicial officer are excluded. However, independent administrative acts remain within the Ombudsman’s jurisdiction under section 4(1) and Schedule 2. The complaint arguably included failures to prepare accurate orders and letters, obtain judicial approval, communicate clearly, process applications and correct materially misleading information.
4. The Ombudsman had arguably failed to engage with significant evidence, including the contradictory accounts of the court file, the unanswered request for a limited transcript, and the alleged administrative errors that caused the claimant to abandon the appeal. The timing objection also failed: the final decision of 25 November 2010 formed part of a continuous decision-making process following new information from HMCS, so the claim was brought in time.
5. The proceedings were stayed for three months to allow an informal and economical resolution. If unresolved by 4 June 2012, the claimant was to state whether the claim would be withdrawn or pursued; if pursued, it would be listed for a one-day hearing, and otherwise dismissed.

• High Court (Administrative Court): Permission to apply for judicial review granted on renewal. The proceedings were stayed for three months to permit an informal resolution.
• Paper decision, 11 April 2011: Permission had previously been refused by Mr John Howell QC, sitting as a deputy High Court judge. That decision was held arguably wrong.