Morris, R (on the application of) v Health Service Commissioner

Permission for judicial review may be granted where an ombudsman may have failed to consider the full scope of a complaint and thereby failed to have regard to a material consideration. The ombudsman’s discretion is very wide, although it is not wholly unfettered. At the permission stage, the court need only identify an arguable public law error; permission does not indicate that the claim will succeed.

The applicant challenged the Health Service Commissioner’s handling of a complaint concerning missing medical records. The complaint principally sought disclosure of the records, but arguably also raised the hospital’s inadequate record-keeping and the public interest in addressing it. The court considered whether that broader issue had been overlooked and whether the Commissioner’s decision was arguably unlawful. Permission was granted on that limited basis.

1. Permission granted. The applicant had an arguable case that the complaint contained two strands: obtaining the records and addressing the circumstances in which they had become dispersed, including any systemic failure in record-keeping.
2. The Commissioner’s statutory discretion was described as very wide, with relatively loose limits. It was not, however, completely unfettered.
3. If the complaint’s full scope had not been considered, that could amount to a failure to have regard to a material consideration. The possible error was one of that kind, rather than irrationality or perversity.
4. The grant of permission did not determine the merits. The applicant faced a substantial difficulty because the legal arguments against intervention in ombudsman decisions were strong.
5. The judge indicated, without deciding the point, that any challenge to the timing of the Commissioner’s activity might require consideration of when the activity began. The judge stated that the issue was not really analogous to Birkett.
6. The respondent’s name was amended to remove “Parliamentary”, and the existing costs order was discharged.