Mark Moss, R (on the application of) v The Service Complaints Ombudsman of the Armed Forces (No.3)

A supervisory court must examine whether an ombudsman’s reasons provide a rational basis for the conclusions reached. An adverse finding on a complainant’s ability to process information does not necessarily answer whether a duty of care was fulfilled. In the context of service complaints, the duty of care may have a broad, non-technical meaning. It may require protective procedural steps, including assistance, clear advice about the consequences of withdrawal, and time for informed reflection, where the complainant’s known vulnerability makes those steps necessary. The ombudsman must assess the circumstances existing when complaints are withdrawn. Later explanations cannot necessarily cure an earlier failure, particularly where the later communications themselves state that the complaints are closed.

The claimant challenged the Ombudsman’s third investigation report concerning the closure of two service complaints and the claimant’s subsequent complaint that the process had failed to take proper account of his mental health. An earlier judicial review had quashed part of the Ombudsman’s second decision and required reconsideration. Permission for the present claim was granted on limited grounds concerning the role of an Assisting Officer, advice about the consequences of closure, and reliance on post-closure communications. The central issue was whether the Ombudsman’s reasoning in the retaken decision was legally adequate and rational.

1. Claim succeeded. The Ombudsman’s reasoning in IR3 could not withstand reasonableness review. The court’s role remained supervisory, and the Ombudsman was entitled to latitude in assessing evidence and weight, but the reasons had to grapple with obviously relevant features of the case.
2. The allegation that the Service had failed in a duty of care contained both an alleged default and an alleged consequence. The finding that the claimant could process information and act in his own interests was not a complete answer. The complaint could succeed if there had been a failure to take necessary protective steps, even without incapacity.
3. The Ombudsman’s jurisdiction was not cut off when the withdrawal letter was received. The complaint concerned the process and closure of the service complaints. Depending on the circumstances, the person receiving a caveated or ambiguous withdrawal could seek clarification, provide material information, involve the Assisting Officer, or allow the withdrawal to be reconsidered before treating the complaints as closed.
4. The Ombudsman materially understated the Assisting Officer’s role. The officer was a procedural safeguard, particularly important where the complainant was vulnerable. The relevant role included ensuring understanding of the process, consequences, available information, time for reflection, and access to support. It was not confined to advising on the relative merits of litigation.
5. The reasons also failed adequately to assess the evidence that the claimant had been told there was nothing further to be gained from the service complaints. That evidence was capable of showing that the withdrawal was responsive to advice from the Prescribed Officer, rather than a purely voluntary decision received passively. Post-closure communications could not automatically demonstrate what the claimant would have done had proper advice and assistance been given before closure.
6. The court therefore held that the identified concerns were material public law errors. Consequential matters, including the appropriate remedy and costs, were reserved for further submissions and a sequel judgment.

The judgment describes earlier stages in the same judicial review litigation:

• Administrative Court: HHJ Sycamore’s decision, [2022] EWHC 92 (Admin), quashed specified parts of the Ombudsman’s second decision and required reconsideration.
• Administrative Court: The present court allowed the challenge to the Ombudsman’s third investigation report. Consequential relief and costs were reserved.