Bradley
R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36; [2009] QB 114
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
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
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
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
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
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
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.
Cited by
- Gallagher
16. This decision, of course, pre-dated the Local Government and Housing Act 1989 which made specific provision for the second report to contain recommendations as to action that should be taken by the authority (see above). Eastleigh thus establishes that the only way to dispute the findings of the LGO is to challenge the report itself. It is common ground that for this purpose the findings include both the finding of maladministration and the finding of injustice arising from the putative maladministration. The statement of Lord Donaldson of Lymington MR has been reaffirmed by Lord Justice Wall in the Court of Appeal (see R (Bradley) v Secretary of State for Work and Pensions [2008] ECWA Civ 36 [2009] QB 114 (“ Bradley”) at 139).
- JR55
19. The starting point is the legal and constitutional status of the Complain ts Commissioner’s reports. The practice of the United Kingdom government is to comply with the recommendations of statutory ombudsmen unless the department in question can put forward good reasons for not doing so: see Handling of Parliamentary Ombudsman C ases (Cabinet Office, 1996), para 61, and Managing Public Money (HM Treasury, 2013), para 4.12.2. This corresponds to what has been held to be the position of the United Kingdom government in relation to reports of the Parliamentary Commissioner for Admini stration. In R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36; [2009] QB 114, the Court of Appeal in England accepted (para 63) that where a minister was responsible to Parliament for the public body in question, he was not bound t o accept the Commissioner’s findings or recommendations, because Parliament cannot have intended to preclude the minister from explaining his rejection of them to Parliament. Nevertheless, it was held (para 72) that he could not rationally reject them without “cogent reasons”.
- Kirkham & Allt (2016)
- Kirkham (2017)
- Miller
53.The utility of a draft report procedure has been commented upon in decisions of this court which have concluded that there is due process and fairness in the same: see, for example, R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114 at [58] and R (Kay) v Health Service Commissioner [2009] EWCA Civ 732 per Sullivan LJ, Senior President at [8]. Furthermore, the ombudsman's process as described in her letters inviting observations from the appellants was intended to be 'iterative'. The doctors could either comment as the investigation went along or at the stage of a draft report or conceivably both. Had they not been encouraged to be reticent by the ombudsman's representative, they could have commented earlier and caused the ombudsman to engage with their responses before drafting her report.
- Harlow (2018)
- Kirkham & O’Loughlin (2020)
- Craig (9th edn)