R (Piffs Elm Limited) v Commissioner for Local Administration in England

The Court of Appeal considered whether the Local Government Ombudsman had power to withdraw a final report and re-open an investigation, whether the Ombudsman’s August 2019 final report (decision 1) was lawful, and whether the subsequent February 2021 report (decision 3) was lawful. The court held that the Ombudsman had no express or implied power to withdraw a section 30(1) report once an investigation was completed; the statutory scheme in Part III of the Local Government Act 1974 forms a complete code and the Interpretation Act 1978 does not imply a revocation power for that category of function. Decision 1 was unlawful because the Ombudsman failed to address the jurisdictional bar in section 26(6)(c) of the Local Government Act 1974 before determining the complaint: the re‑formulated complaint required resolution of a pure question of law for which an alternative remedy in the courts was available. Despite finding decision 2 (the withdrawal) unlawful, the Court upheld decision 3: the Ombudsman lawfully concluded he had no jurisdiction to determine the refined complaint because it raised legal questions more appropriately decided by the courts.

Background and parties: Piffs Elm Limited complained to the Local Government Ombudsman after Tewkesbury Borough Council refused to refund a planning application fee following the Council’s decision not to determine a third planning application. The Ombudsman issued a final report in August 2019 (decision 1), later withdrew that report in November 2019 (decision 2) and issued a further final report in February 2021 (decision 3). Piffs Elm sought judicial review and appealed to the Court of Appeal from the Administrative Court decision of Heather Williams J ([2022] EWHC 1547 (Admin)).

Nature of the application / relief sought: Piffs Elm sought judicial review of the Ombudsman’s decisions, challenging (i) the lawfulness of the Ombudsman’s withdrawal of decision 1 (decision 2), (ii) the lawfulness of decision 1 itself, and (iii) the lawfulness of decision 3. The parties also included the Council, which challenged decision 1 in separate proceedings.

Facts and procedural history: Piffs Elm made three planning applications; the Council refused the first two and declined to determine the third after the applicant paid a fee. The High Court (Judge 1) found an appearance of bias in relation to refusal 2 but declined to grant relief because an alternative remedy (appeal to the Secretary of State) remained. Piffs Elm then complained to the Ombudsman that the Council’s refusal to refund the fee was unreasonable in light of Judge 1’s findings. The Ombudsman issued multiple draft reports and issued decision 1 finding fault in the Council for not considering a refund. After legal advice, the Ombudsman withdrew decision 1 (decision 2) and later issued decision 3 finding no fault. Heather Williams J dismissed Piffs Elm’s judicial review challenge to decision 3 and held the Ombudsman had power to withdraw and re-open (but this appeal followed).

Issues before the Court of Appeal: (i) whether the Ombudsman had power to withdraw a final report and re-open a completed investigation; (ii) if not, whether decision 1 was unlawful; and (iii) if decision 1 was unlawful, whether decision 3 was lawful.

Court’s reasoning: The court concluded that Part III of the Local Government Act 1974 is a complete statutory code and that the Ombudsman has no express power to withdraw a section 30(1) report. The court rejected an implied power to revoke such a report under section 12 of the Interpretation Act 1978 because Parliament’s scheme distinguishes between implied continuity powers and implied powers to revoke subordinate instruments (section 14 of the 1978 Act and section 32 of the 1889 Act). The court held that the Ombudsman’s failure to address the jurisdictional restriction in section 26(6)(c) (which bars investigation where the person affected has or had a remedy by way of proceedings in any court of law unless it was unreasonable to expect them to use it) rendered decision 1 unlawful. Finally, the court upheld decision 3 because the refined complaint required resolution of pure legal questions for which judicial review was the appropriate route.

Wider comment: The court emphasised the need to respect the jurisdictional bar in section 26(6)(c) and the finality of a completed Ombudsman investigation under the statutory scheme; the existence of a narrow review power would risk procedural unfairness and undermine statutory finality.

This was an appeal from the Administrative Court. The Court of Appeal dismissed the appeal. It held that (i) decision 1 (the Ombudsman’s August 2019 report) was unlawful because the Ombudsman failed to address the jurisdictional bar in section 26(6)(c) of the Local Government Act 1974 before deciding the re‑formulated complaint, (ii) the Ombudsman had no express or implied power to withdraw a section 30(1) report and re‑open a completed investigation, so decision 2 (the withdrawal) was unlawful, but (iii) decision 3 (the February 2021 report finding no fault) was lawful because the refined complaint raised pure questions of law appropriate for the courts and the Ombudsman lawfully concluded he did not have jurisdiction to determine them.

On appeal from the Administrative Court (Heather Williams J) ([2022] EWHC 1547 (Admin)). Leave to appeal was granted by Singh LJ. The appeal was decided by the Court of Appeal (Civil Division) and reported as [2023] EWCA Civ 486.