Morris, R (On the Application Of) v Parliamentary and Health Service Ombudsman

An ombudsman has a broad statutory discretion to decide whether to investigate a complaint and to determine the investigation’s scope and procedure. Judicial review remains available, but a claimant faces a high hurdle and must establish conventional public-law error, irrationality, unfairness or failure to consider relevant matters. Earlier events may properly be treated as background to the defined complaint rather than as separate matters requiring findings. A legitimate expectation requires a representation that is clear, unambiguous and devoid of relevant qualification. Consultation, provisional investigative methods and expert advice do not necessarily create such an expectation where the ombudsman retains control of the investigation. Legal costs may be considered as part of a remedy, but they are not ordinarily recoverable and exceptional circumstances may properly be required.

The claimant sought judicial review of a report by the Parliamentary and Health Service Ombudsman concerning Guy’s and St Thomas’ NHS Foundation Trust’s investigation into missing medical records relating to her late daughter. The Ombudsman upheld maladministration in the Trust’s 2014 investigation and recommended an apology, acknowledgment of failings and a payment of £1,000, but declined to require further searches or recommend payment of the claimant’s legal costs.

The claimant challenged the defined scope of the investigation, the decision not to require further searches, the refusal to recommend legal costs and the alleged failure to address matters raised in response to the draft report. The central issues were the scope of the Ombudsman’s discretion, legitimate expectation, procedural fairness, rationality and the availability of legal-cost remedies.

1. Claim dismissed. The Ombudsman lawfully confined the investigation to whether the Trust’s 2014 investigation amounted to maladministration. Earlier events were relevant as background and context, but were not separate subject-matter requiring individual findings. The decision fell within the broad discretion conferred by sections 3(1) and 3(2) of the Health Service Commissioners Act 1993 and was not perverse, irrational or based on erroneous reasoning.

2. The statutory discretion over investigation scope and procedure is broad. The court may intervene where there is a conventional public-law error, including asking the wrong question, misinterpreting the complaint, irrationality or procedural unfairness, but the nature of the discretion and the Ombudsman’s evaluative judgment create a high threshold.

3. No legitimate expectation arose. The claimant had not shown a representation that was clear, unambiguous and devoid of relevant qualification. The Ombudsman’s discussions with the claimant, use of expert advice and experimentation with investigative methods did not surrender the Ombudsman’s discretion or promise that particular searches or questions would be pursued.

4. The Ombudsman was entitled to decide that further searches were unlikely to produce new records and would be disproportionate given the extensive searches already undertaken and the passage of time. The investigation had nevertheless made extensive use of records-management advice and evidence about the Trust’s conduct.

5. Section 11(4)(a) of the 1993 Act could potentially extend to some or all of a complainant’s legal expenses, although that was not its primary purpose. Separately, the parties accepted that the Ombudsman could recommend that a health service body pay legal costs as part of a remedy for maladministration and injustice. The Ombudsman was entitled to adopt a policy that legal costs would rarely be recoverable because the complaints process was intended to be accessible without lawyers, and to require exceptional circumstances. That policy was rational and consistent with the published guidance.

6. The Ombudsman was not required to answer every detailed point in the claimant’s response to the draft report. It was lawful to make overall findings, supported by examples, where the investigation had considered the underlying material and the Ombudsman had sufficient evidence to reach its conclusions.