Rapp, R (on the aApplication of) v The Parliamentary and Health Service Ombudsman & Anor

An ombudsman investigating maladministration does not act as a surrogate court and ordinarily has no duty to determine questions of law. Maladministration and unlawfulness are distinct: either may exist without the other. The ombudsman may select the relevant administrative standard, provided that the choice is reasonable and the stated standard is applied.

On judicial review, the court cannot substitute its own assessment of whether conduct amounted to maladministration or caused injustice. It may intervene where the ombudsman acts irrationally or fails to apply the announced standard. A report must be read fairly and as a whole, without hypercritical analysis or treatment as if it were legislation or a contract.

The claimant’s vocational qualification was withdrawn by Edexcel, a private awarding body regulated by Ofqual. Ofqual later secured its return but had previously failed to keep a record of discussions with Edexcel and had misunderstood the chronology. The Parliamentary and Health Service Ombudsman found aspects of Ofqual’s conduct maladministrative, but concluded that there was insufficient evidence to find that advice given by Ofqual about the qualification amounted to maladministration.

The claimant sought judicial review. He argued that the Ombudsman had wrongly decided that Edexcel could cancel a qualification at its holder’s request. Alternatively, he contended that she was required to determine that legal issue before deciding whether Ofqual had acted maladministratively.

1. The claim for judicial review was dismissed. Properly read as a whole, the Ombudsman’s report did not determine whether Edexcel had legal power to cancel a qualification at its holder’s request. Her statement that the decision was for the awarding organisation meant that Ofqual could justifiably have declined to become involved in a situation which appeared to fall outside its regulatory remit. It did not approve Edexcel’s conduct or advise that Edexcel possessed a particular legal power.

2. The Ombudsman’s statutory function under the Parliamentary Commissioner Act 1967 was to investigate maladministration by Ofqual. She was not acting as a surrogate court determining the lawfulness of Edexcel’s conduct. Maladministration and unlawfulness are distinct concepts. Whether particular conduct amounted to maladministration or caused injustice was for the Ombudsman, subject to review for irrationality or failure to apply her stated standard.

3. The report had to be read fairly, contextually and as a whole. It could not be construed as though it were legislation or a contract. The report repeatedly stated that the absence of contemporaneous records made it impossible to determine what advice had been sought or given. Its statement that Ofqual had not given incorrect advice was therefore not a positive finding that legally correct advice had been given.

4. The Ombudsman did not need to resolve the separate and difficult issue whether Edexcel could accept a voluntary relinquishment of a qualification. No such request had in fact been made, and the issue was unnecessary to deciding whether the evidence established maladministration by Ofqual. The court likewise declined to determine that academic issue, particularly in Edexcel’s absence.

5. The alternative ground also failed. The Ombudsman had identified the relevant regulatory framework and standards and applied them. Neither public law nor her published policy required her to decide an unnecessary question concerning Edexcel’s powers. There was no error of law, material or otherwise.

not stated in the judgment.