Piffs Elm Limited, R (on the application of) v Commission for Local Administration in England & Anor.

A Local Government Ombudsman who has completed an investigation and issued a final report has no implied power to withdraw that report or reopen the investigation. A power of revocation is neither necessary under Local Government Act 1974 nor conferred by section 12 of the Interpretation Act 1978.

The statutory bar concerning an available court remedy applies throughout an investigation. Whenever the issue arises, the Ombudsman must decide whether such a remedy exists and whether it was reasonable to expect the complainant to use it. On judicial review, jurisdiction is determined objectively. An investigation pursued in breach of the bar is ultra vires. A complaint whose resolution depends on a pure question of law ordinarily belongs in the courts.

Piffs Elm Limited paid a fee for a third planning application, which Tewkesbury Borough Council declined to determine. It later complained to the Local Government Ombudsman about the Council’s refusal to refund that fee.

The Ombudsman’s first final report found maladministration and recommended reconsideration of a refund. He subsequently withdrew that report as legally flawed and issued a second report finding no fault. Heather Williams J held in [2022] EWHC 1547 (Admin) that the Ombudsman could withdraw a report which he reasonably believed to contain a legal error and upheld the second report.

The appeal concerned whether the Ombudsman could withdraw the first report, whether that report was unlawful, and whether the second report was lawful.

1. Appeal dismissed. The first report was unlawful and the decision withdrawing it was also unlawful. The second report was lawful. Elisabeth Laing LJ gave the judgment, with which Dingemans and Popplewell LJJ agreed.
2. The Ombudsman had no express or implied power to withdraw a final report or reopen a completed investigation. Implication of such a power required necessity, rather than convenience. Part III of the Local Government Act 1974 was a complete code. Its emphasis on completion, formal reporting, finality and detailed post-report consequences pointed against such a power. The Ombudsman’s broad procedural freedom before completion reinforced that conclusion: it provided ample opportunity to obtain representations and correct errors before issuing the report.
3. Section 12 of the Interpretation Act 1978 permits statutory functions to be exercised from time to time as occasion requires. It does not confer a power to revoke an earlier exercise of a function. The contrast with section 14, which expressly implies revocation powers for subordinate legislation, was decisive. It was impermissible to imply a further, unstated power within the implication created by section 12. The Ombudsman was therefore functus officio after issuing the first report.
4. The first report was nevertheless unlawful. Section 26(6)(c) of the Local Government Act 1974 is a continuing and fundamental jurisdictional restriction. Whenever it appears that the complainant has or had a court remedy, the Ombudsman must consider the bar and its proviso. If a court remedy exists and the Ombudsman is not satisfied that resort to it would have been unreasonable, he must decline jurisdiction. On judicial review, the existence of jurisdiction is an objective question for the court.
5. The narrowed complaint depended on deciding whether the Council possessed a legal power to refund the planning fee. That was a pure question of law suitable for judicial review of the Council’s refusal. No material suggested that resort to that remedy would have been unreasonable. The investigation underlying the first report was consequently ultra vires.
6. The same jurisdictional analysis defeated the challenge to the second report. The possible significance of an earlier finding of apparent bias was merely an argument supporting the request for a refund. It did not convert the dispute over the Council’s powers and the lawfulness of its refusal into a purely administrative complaint. The Court expressed no view on whether the Ombudsman otherwise possessed power to issue the second report.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2023] EWCA Civ 486. The court held that the first report and its purported withdrawal were unlawful, but that the second report was lawful.
2. High Court, Administrative Court: Heather Williams J held in [2022] EWHC 1547 (Admin) that the Ombudsman could withdraw a final report which he reasonably believed to be legally flawed. She upheld the later report, dismissed or refused the claimant’s challenges, and did not determine the outstanding challenges to the first report.