Bradley

R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36; [2009] QB 114

BAILII judgment

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Parties and outcome

Claimant
Henry Bradley, Robin Duncan, Andrew Parr and Thomas Waugh (respondents and cross-appellants)
Defendant
Secretary of State for Work and Pensions (appellant and cross-respondent)
Interested party
Parliamentary Commissioner for Administration
Intervener
HM Attorney General, on behalf of the Speaker of the House of Commons
Outcome
The claimants succeeded in part. The Secretary of State’s appeal was dismissed; the claimants’ appeal concerning the rejection of the Ombudsman’s findings of injustice was allowed in part, but their remaining appeals were dismissed.

Citations in this work

Eastleigh

R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855

Paragraph 16

16.The judge reached the conclusion that subject to exceptions identified by this Court in R v Secretary of State for the Home Department, ex parte Danaei [1997] EWCA Civ 2704 – "namely where the findings are objectively shown to be flawed or irrational, or peripheral, or there is genuine fresh evidence to be considered" – the findings of the Ombudsman were binding on the Secretary of State. His reasoning may, I think, fairly be summarised as follows: (1) The decision of this Court in R v Local Commissioner for Administration, ex parte Eastleigh Borough Council [1988] 1 QB 855 – and, in particular the observations of Lord Donaldson of Lymington, Master of the Rolls, (ibid, 867B-D) – was authority for the proposition that, in the absence of a successful application for judicial review, the findings of a Local Government Ombudsman are binding on the relevant local authority. (2) Although there were differences between the scheme established under Part III of the Local Government Act 1974 - under which a Local Government Ombudsman conducts investigations and make reports - and the scheme established under the Parliamentary Commissioner Act 1967, those differences were not such as to render the proposition established in the Eastleigh case inapplicable to a case under the latter scheme. (3) The proposition established in the Eastleigh case must be read with the observations of this Court in R v Warwickshire County Council, ex parte Powergen plc [1998] EWCA Civ 2280 and in R v Secretary of State for the Home Department, ex parte Danaei [1997] EWCA Civ 2704. Although those observations were made in the context that the fact finding exercise which had preceded the relevant decision – in the first case, a planning inquiry and, in the second case, a hearing before an immigration adjudicator - had been "the exercise of adjudicative powers following an oral adversarial hearing", the different nature of the investigative process under the 1967 Act did not lead to the conclusion that those observations were not in point. The judge's reasons for upholding the first finding of maladministration

Eastleigh

R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855

Paragraph 52

52. The judge was persuaded that observations in this Court, in R v Local Commissioner for Administration, ex parte Eastleigh Borough Council [1988] 1 QB 855, provided authority for the view that the Secretary of State was bound by the Ombudsman's findings of maladministration unless he could establish that those findings were, themselves, flawed by irrationality. The claimants – as respondents to the Secretary of State's appeal – seek to uphold that conclusion.

Eastleigh

R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855

Paragraph 57

57. The authority appealed from the judge's refusal of relief; and the Local Commissioner cross-appealed from the finding that he had exceeded his powers. The cross-appeal was dismissed (Lord Donaldson of Lymington, Master of the Rolls, dissenting). The authority's appeal was allowed for the reasons given by Lord Donaldson, with whom (on this point) the other members of the Court (Lord Justice Parker and Lord Justice Taylor) agreed. After referring to Mr Justice Nolan's suggestion that the authority had an adequate remedy – in that they could issue a statement disputing the right of the Local Commissioner to make the findings which he had – Lord Donaldson said this ([1988] 1 QB 855, 876A-D): " . . . Such an action would wholly undermine the system of ombudsman's reports and would, in effect, provide for an appeal to the media against his findings. The Parliamentary intention was that reports by ombudsmen should be loyally accepted by the local authorities concerned. This is clear from section 30(4) and (5) which require the local authority to make the local report available for inspection by the public and to advertise this fact, from section 31(1), which requires the local authority to notify the ombudsman of the action which it has taken and proposes to take in the light of this report and from section 31(2), which entitles the ombudsman to make a further report if the local authority's response is not satisfactory. Whilst I am very far from encouraging councils to seek judicial review of an ombudsman's report, which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed, in the absence of a successful application for judicial review and the giving of relief by the court, local authorities should not dispute an ombudsman's report and should carry out their statutory duties in relation to it."

Padfield

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

Paragraph 65

Although both the judgment below and the arguments before us focused principally upon the scheme of the legislation and whether the highway authority's approach to its s.278 discretion thwarted the policy and objects of the two Acts here in question - see, for example, Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 - I for my part prefer the broader Wednesbury analysis of the case.

Eastleigh

R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855

Paragraph 135

135.By far the most important, in my judgment, is Sir John Chadwick's rejection of the proposition that the decision of this court in R v. Local Commissioner for Administration, ex parte Eastleigh Borough Council [1988] 1 QB 855 (Eastleigh) is authority for the proposition that the Secretary of State is bound by the Parliamentary Ombudsman's findings of maladministration and must treat them as correct unless and until they are quashed in judicial review proceedings. This is, in my judgment, a fundamental point, and in paragraph 5 of her written reply (undated, but received by the court on 14 August 2007, after the conclusion of the argument) the Ombudsman stated: - Before considering the issues raised by the cross-appeal, it should be noted that the Court only needs to consider these issues if it rejects the written submissions of the Ombudsman on the main legal issue. The Ombudsman submits that in considering the Report and what action to take in respect of it, the Secretary of State must proceed on the basis that the Ombudsman's findings of injustice caused by maladministration are correct unless they are quashed in judicial review proceedings. If this is accepted then that is the end of the matter as no application for judicial review has been made seeking to quash the Report. The proper, and indeed it is submitted the only, place for the lawfulness of the Ombudsman's report to be questioned is in judicial review proceedings aimed at quashing that Report.

Eastleigh

R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855

Paragraph 140

140.This, in my judgment was what the Eastleigh case was about and why, with respect, Lord Donaldson of Lymington MR was right to hold that in the context of the 1974 Act, the Parliamentary intention was that "reports by ombudsmen should be loyally accepted by the local authorities concerned": - see [1988] 1 QB 855 at 867A-C. As is self-evident, this court in Eastleigh was discussing the work of LGOs and the 1974 Act, and I see nothing in Eastleigh which would mean that a similar consideration applied to reports by the Parliamentary Ombudsman.

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