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

The phrase “just and equitable” in regulation 7(2) of the Armed Forces (Service Complaints) Regulations 2015 confers a broad discretion on the Ombudsman to permit an out-of-time application for review. The Ombudsman may consider the potential merits of the underlying service complaint when deciding whether an extension is just and equitable. The four-week period remains the starting point and extending time is exceptional, but the regulation contains no prohibition on considering merits, prejudice or other relevant circumstances. The discretion belongs to the Ombudsman, subject to ordinary public law principles. A decision taken on the erroneous basis that merits could not be considered must be quashed and remitted.

The claimant sought judicial review of the Service Complaints Ombudsman’s refusal to review an army decision that his service complaint concerning his medical discharge was inadmissible because it was out of time. His review application was submitted ten days late. The Ombudsman concluded that the explanation for delay was not just and equitable and treated herself as unable to consider the merits of the underlying complaint.

The claimant challenged that approach on irrationality, misapplication of regulation 7(2), and procedural unfairness. The procedural ground was introduced late and the original human-rights ground was withdrawn. The central issue was whether regulation 7(2) permitted consideration of the underlying merits when deciding whether it was just and equitable to accept a late review application.

1. Ground 1 allowed. The Ombudsman’s decisions of 26 June 2023 and 12 September 2023 were quashed to the extent challenged.
2. Regulation 7(2) begins with a prohibition on considering an application made outside four weeks, but that prohibition is immediately qualified by the words “unless the Ombudsman considers it is just and equitable”. Those words confer a broad discretion. The regulation contains no express restriction on the factors which may be considered.
3. The structure of the provision does not justify excluding the merits of the proposed review. The Ombudsman may consider the potential merits without deciding the admissibility review itself. The fact that the review function is narrower than the Ombudsman’s investigative functions does not support the suggested limitation.
4. The four-week period remains the starting point and an extension is the exception rather than the rule. The Ombudsman must exercise the discretion herself, taking account of relevant considerations and applying ordinary public-law principles. The merits, prejudice, reasons for delay and consequences of refusal may be relevant, although their weight is for the Ombudsman.
5. The Ombudsman acted on the erroneous understanding that regulation 7(2) precluded consideration of the merits. No alternative discretionary assessment had been made. The error was material, so the matter had to be remitted rather than determined by the court.
6. The Ombudsman should assess whether it is just and equitable to extend time overall, rather than whether the reasons for delay alone are just and equitable. Ground 2 was therefore academic, but would otherwise have succeeded.
7. The application to add a new procedural-unfairness ground was refused as excessively late and independently because no material prejudice from the alleged procedural failures was established. The claim was allowed under Ground 1 to the extent identified.

This was a first-instance judicial review claim in the Administrative Court. Permission was granted by Calver J on 31 October 2023. The claim was allowed under Ground 1 and the Ombudsman’s decision was remitted for reconsideration according to law.