Charity Commission for England and Wales v Parliamentary and Health Service Ombudsman

A judicial review claim becomes academic where the impugned decision has been superseded and no longer directly affects the parties’ rights or obligations. Exceptional public-interest circumstances may justify hearing an academic claim, particularly where similar, non-fact-sensitive cases are likely, but a heavily fact-specific claim will ordinarily not qualify.

An Ombudsman may evaluate whether agreed remedial action has substantively remedied injustice caused by earlier maladministration. The inquiry is not confined to whether a review occurred. Under Parliamentary Commissioner Act 1967 s.10(3), the Ombudsman’s assessment is evaluative and attracts latitude. The judicial review court must not substitute its own merits assessment.

The Charity Commission sought judicial review of the Ombudsman’s decision to lay special reports before Parliament concerning complaints by Lara Hall and Damian Murray. The Ombudsman had found earlier maladministration in the Commission’s handling of safeguarding-related regulatory cases and concluded that agreed reviews had not remedied the resulting injustice.

Before permission was determined, the House of Commons required the reports to be laid through a separate Parliamentary mechanism, and the reports were laid. The issues were whether the claim had become academic, whether the grounds were arguable, and whether the decision-making was non-justiciable because it concerned proceedings in Parliament.

1. Permission refused. The claim had become academic. The challenged decision under s.10(3) of the Parliamentary Commissioner Act 1967 had not been implemented and was superseded by the laying of reports under a separate Parliamentary mechanism. Those events were constitutionally freestanding from the statutory decision and judicial review claim. The possibility that the decision might provide context for a Select Committee did not directly affect the parties’ rights or obligations.
2. There were no exceptional circumstances justifying determination of the academic claim. The alleged systemic issue could have been raised in a challenge to the Ombudsman’s s.10(1) reports, which were reviewable under R (Dyer) v Parliamentary Commissioner for Administration [1994] 1 WLR 621, but that course was not taken. The present claim was fact-specific and therefore unsuitable as a test case.
3. The Ombudsman was entitled to consider the adequacy and substantive effect of the Commission’s reviews. The agreed terms of reference were intended to remedy the injustice caused by the earlier maladministration. A review which merely occurred in fact would not necessarily provide the clarity, explanation and confidence required to remedy that injustice. No legitimate expectation confined the Ombudsman to considering only whether reviews had occurred.
4. Section 12(3) did not prevent the Ombudsman from considering whether the agreed action had remedied the consequences of established maladministration. That was not a merits substitution or a fresh finding of maladministration. The question under s.10(3) was whether injustice remained unremedied.
5. The Ombudsman’s conclusion was an evaluative judgment made by the primary decision-maker under the statutory phrase “if it appears to the Commissioner”. It attracted evaluative latitude. The court had no substitutionary jurisdiction, and disagreement on the merits did not establish an arguable public-law error. The proposed grounds had no realistic prospect of success.
6. The judge would not have refused permission solely on non-justiciability grounds. It was arguable that the statutory preconditions in s.10(3) imposed legal constraints capable of judicial review, although review might be contextually calibrated and the discretion whether to lay a report might lack measurable legal standards. Parliamentary privilege considerations concerning the later reports nevertheless reinforced the conclusion that the academic claim should not be entertained.

The anonymisation and reporting-restriction order was discharged. The Charity Commission was ordered to pay the Ombudsman’s costs of preparing its acknowledgment of service and summary grounds, summarily assessed at £8,700.

First-instance judicial review proceedings in the Administrative Court. Permission for judicial review was refused.