PIFFS ELM LIMITED v COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND

The Local Government Ombudsman has a broad statutory discretion over whether to investigate, continue or discontinue a complaint, subject to ordinary public-law review. Questions of legal validity may properly be left to the courts where they are better suited to judicial review. A final report may be withdrawn and the investigation reopened where the Ombudsman reasonably considers that the report contains legal error. Whether that power exists depends on the statutory context, including the scheme’s detail, the nature of the function, the importance of finality and the practical consequences of withdrawal. An authority’s adoption of a reasonable legal view in an uncertain area is not, without more, maladministration. The court need not finally determine the underlying legal question merely to decide whether the Ombudsman was entitled to regard the authority’s position as supported by respectable legal arguments.

Two applications for judicial review concerned reports issued by the Local Government and Social Care Ombudsman following a complaint by Piffs Elm Ltd about Tewkesbury Borough Council’s refusal to refund a planning application fee. The fee had been paid after the Council indicated that it might decline to determine a further application under section 70A of the Town and Country Planning Act 1990.

The Ombudsman first found maladministration, later withdrew that report and reopened the investigation, and ultimately found no fault. Piffs Elm challenged all three decisions. The Council challenged the first report. The principal issues were whether the first report could lawfully be withdrawn, whether the Ombudsman had unlawfully limited the scope of his investigation, and whether the Council’s refusal to refund the fee could amount to maladministration.

1. Withdrawal of the first report. The Ombudsman was entitled to withdraw the August 2019 report, reopen the investigation and issue a new report. Section 12(1) of the Interpretation Act 1978 could apply to the statutory powers to investigate and report, subject to any contrary intention.
2. The Local Government Act 1974 did not constitute a complete code excluding an implied power of withdrawal. Relevant considerations included the breadth and informality of the Ombudsman’s functions, whether the function determined substantive rights, the absence of an express limited review power, the continuing statutory process after a report, the importance of avoiding unnecessary judicial review, and the practical consequences of denying withdrawal.
3. The power was limited to circumstances in which the Ombudsman reasonably considered the report legally flawed. It promoted good administration and caused no material unfairness because the fresh report and the withdrawal decision remained open to challenge. R v Parliamentary Commissioner for Administration ex p Dyer was distinguishable because it concerned a different statutory regime and a request to reopen an investigation to include complaints that had already been excluded, not correction of legal error.
4. The challenges to the February 2021 report failed. Piffs Elm had repeatedly confirmed that it was not pursuing a complaint about the section 70A decision. The Ombudsman therefore committed no public-law error by declining to determine that abandoned issue. He was also entitled to treat the legal status of the earlier planning refusals and the effect of the Jarman judgment as matters better resolved by the courts under his statutory discretion.
5. The Ombudsman was entitled to conclude that there were respectable legal arguments that the Council lacked power to refund the fee. The Fees Regulations specified circumstances in which refunds were required, and the relevant statutory powers relied upon by Piffs Elm did not clearly establish a wider discretionary power. It was not necessary for the Ombudsman finally to determine that question. In an uncertain area of law, an authority’s reasonable legal position, supported by legal advice, did not itself amount to maladministration.
6. The claims were dismissed or refused permission as appropriate. The August 2019 decision having been lawfully withdrawn, the challenges directed to that decision did not require determination.

First-instance judicial review proceedings. The judgment records earlier permission decisions by Pepperall J and Jacobs J, and the prior Jarman judgment concerning a planning decision, but this court’s decision was not an appeal from those judgments.