In the matter of an application by JR55 for Judicial Review (Northern Ireland)

An ombudsman’s powers depend on the particular statutory scheme governing the office. Under the Commissioner for Complaints (Northern Ireland) Order 1996, the Commissioner may recommend monetary redress following an unsuccessful attempt to effect a fair settlement. He may not recommend that a private health-care provider make a payment which has no legal effect under the Order or general law.

The Commissioner’s general reporting power permits reports about his work, not special reports to the legislature about non-compliance in individual cases. Any monetary recommendation made within his powers must also be rational and adequately explained.

A patient died after administrative and clinical failings at a general medical practice. His widow, who sought an explanation rather than compensation, complained to the Northern Ireland Commissioner for Complaints. The Commissioner found maladministration and recommended that the general practitioner’s practice pay her £10,000. When the practitioner refused, the Commissioner proposed to report that refusal to the Northern Ireland legislature.

The practitioner obtained judicial review. The Northern Ireland Court of Appeal held in [2014] NICA 11 that the Commissioner lacked both the asserted power to recommend monetary redress and the power to make the proposed special report. The Commissioner appealed.

The central issues were whether the Commissioner for Complaints (Northern Ireland) Order 1996 authorised a monetary recommendation against a private general practitioner and whether non-compliance could be publicised through a special report to the legislature.

1. Appeal dismissed unanimously. Lord Sumption gave the judgment, with which Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Toulson agreed.
2. Article 9(3) of the Commissioner for Complaints (Northern Ireland) Order 1996 ordinarily excludes an investigation where the complainant has a remedy in court. The existence of such a remedy is assessed on the assumption that the complaint is justified. Article 9(4) nevertheless permitted this investigation because the complainant sought an explanation rather than financial relief. Having accepted jurisdiction on that basis, the Commissioner could not properly recommend a monetary payment and threaten to report non-payment.
3. Article 11 permits the Commissioner to attempt a fair settlement and, if that fails, to recommend action capable of effecting one. Where loss has been suffered, that settlement power can support a recommendation for monetary payment, irrespective of whether the investigation concerns a public or private body. It did not assist here because the settlement procedure had never been used.
4. The Order deliberately distinguishes public bodies investigated under article 7 from private providers investigated under article 8. Articles 16 and 17 provide court-based enforcement only against article 7 public bodies. A private general practitioner is not subject to a relevant public law duty and has no corresponding opportunity to contest the merits of the Commissioner’s findings through article 16 proceedings. The Commissioner therefore could not recommend against such a practitioner a payment having no legal effect under the Order or general law. Whether recommendations relevant to article 16 proceedings could be made against public bodies was left open.
5. Article 19 authorises annual and other general reports on the Commissioner’s work. It does not authorise a special report to the legislature concerning an individual’s failure to comply. The absence of the express special-report power conferred upon other ombudsmen reflected the Commissioner’s distinct constitutional position and could not be circumvented through article 19.
6. Although unnecessary to the disposition, any monetary recommendation within the Commissioner’s powers must be rational and explained. The unexplained £10,000 figure bore no demonstrated relationship to loss, causation or injured feelings and would in any event have lacked a rational basis.

1. United Kingdom Supreme Court: The Commissioner’s appeal was dismissed unanimously. The Court upheld the conclusion that he lacked power to make the disputed monetary recommendation against the private practitioner or a special report about non-compliance.
2. Northern Ireland Court of Appeal: In [2014] NICA 11, the court held that the Commissioner had neither power to recommend monetary redress in the circumstances nor power to issue the proposed special report.