L, R (on the application of) v The Service Complaints Ombudsman for the Armed Forces

The claimant sought judicial review of two decisions of the Service Complaints Ombudsman for the Armed Forces (SCOAF): the decision of 26 June 2023 declining to review an army decision that the claimant's service complaint was inadmissible as out of time, and a 12 September 2023 email refusing reconsideration. The central legal question was the correct interpretation of Regulation 7(2) of the Armed Forces (Service Complaints) Regulations 2015 and in particular whether the SCOAF, when deciding whether to accept an application made outside the four-week period, was entitled to take into account the potential merits of the underlying service complaint.

The court held that Regulation 7(2) affords the Ombudsman a broad discretion to decide whether it is just and equitable to allow a late application and that nothing in the wording of the regulation precludes consideration of the merits (or other relevant factors) when exercising that discretion. The Ombudsman had proceeded on an erroneous interpretation that she was precluded from taking account of the merits, such that no lawful exercise of the Regulation 7(2) discretion occurred. The claim was therefore allowed and the matter remitted for reconsideration by the Ombudsman. An application to add a new ground of procedural unfairness was refused as late and prejudicial and, in any event, there was no material prejudice shown from any procedural shortcoming.

Background and parties. The claimant is a former soldier who was medically discharged and brought a service complaint alleging medical discrimination. The specified officer concluded the complaint was out of time and therefore inadmissible. The claimant applied to the SCOAF for a review; the application was received ten days after the four-week limit set by Regulation 7(2). The SCOAF declined to review the admissibility decision on the basis the application was out of time and that the explanation for lateness was not "just and equitable"; a later request to reconsider was refused by email. The Ministry of Defence was an interested party.

Nature of the claim / relief sought. This was a claim for judicial review seeking to quash the SCOAF decisions and for a direction that the SCOAF reconsider the late application lawfully.

Issues framed by the court. (i) Whether Regulation 7(2) precluded the SCOAF from taking account of the merits of the underlying service complaint when deciding whether it was just and equitable to accept a late application; (ii) whether the SCOAF misapplied the "just and equitable" test by treating it as a test of the reasons given for delay rather than a holistic assessment of whether allowing the late application would be just and equitable; (iii) whether procedural unfairness (including non-compliance with the SCOAF Operations Manual) justified relief or an amendment to the grounds.

Court's reasoning and outcome. Applying ordinary principles of statutory construction, the court concluded Regulation 7(2) gives the Ombudsman a broad discretion to determine whether it is just and equitable to allow an application after the four-week period. Nothing in the wording restricts the factors the Ombudsman may consider, and it was not permissible to read into the regulation an artificial prohibition on taking account of the potential merits of the underlying complaint. Because the Ombudsman had proceeded on the mistaken view that she was precluded from considering merits, her decision was legally flawed. The appropriate remedy was to quash the decision and remit the matter for redetermination by the Ombudsman applying the correct legal test. The claimant's late application to add a separate procedural unfairness ground (Ground 3) was refused as unduly late and because no material prejudice was demonstrated. The court declined to decide Employment Tribunal issues and accepted that the Ombudsman’s re-exercise of discretion will ordinarily be entitled to deference and only be vulnerable on irrationality grounds.

Subsidiary findings: the court criticised late disclosure by the defendant and noted communications and internal guidance that would benefit from clarification, but found no material prejudice arising from any failure to follow internal processes in this case. The court also rejected a narrow construction of Regulation 7(2) urged by the defendant and interested party.

The claim for judicial review is allowed. The court held that Regulation 7(2) of the Armed Forces (Service Complaints) Regulations 2015 confers a broad discretion on the Ombudsman to decide whether it is just and equitable to accept an application made after the four-week time limit and that the Ombudsman was not precluded, as a matter of law, from taking account of the merits of the underlying service complaint when exercising that discretion. The Ombudsman had proceeded on the erroneous understanding that she could not consider merits; the decision of 26 June 2023 is quashed and remitted for reconsideration. The claimant's late application to amend to add a procedural unfairness ground is refused as out of time and prejudicial and, in any event, no material prejudice was shown.

Permission to apply for judicial review was granted by the Hon. Mr Justice Calver by order dated 31 October 2023; anonymity for the claimant was granted in the permission order. The substantive judicial review hearing took place on 6 February 2024 before Mr James Strachan KC sitting as a Deputy Judge of the High Court and the approved judgment was handed down on 9 May 2024. The claimant’s Employment Tribunal proceedings and related interlocutory applications were referred to but not determined in these proceedings.