Mencap
R (Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin)
Parties and outcome
- Claimant
- Mencap
- Defendant
- Parliamentary and Health Service Ombudsman
- Interested party
- Equality and Human Rights Commission
- Outcome
- The Ombudsman won: Mencap’s judicial review claim was dismissed.
Cited by
- Morris (2014)
35. This judicial review challenge raises what I would choose to call a refined Wednesbury issue. I put the matter in those terms because the courts have consistently recognised that the defendant's investigatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on the application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made ‘strikingly clear’ by the legislature. That is a reference to the provision which is now in section 3(5) that the Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense … ” I endorse that approach, and in so far as there is any difference of substance or emphasis between Collins J and Mitting J, I prefer the reasoning of Jeremiah .
- Newman
44. In R (Morris) v The Health Service Commissioner [2014] EWHC 4363 (Admin), Jay J said [paragraph 35]: “… the courts have consistently recognised that the defendant’s invest igatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on th e application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court, made it clear that the width of the discretion was, as he put it, made “strikingly clear” by the legislation. That is a reference to the provision which is now in section 3(5) (sic) that th e Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional grounds of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense….”
- Miller
84. Mitting J considered the application of section 4 of the 1993 Act in R (Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin). He held at [30] that: "It is a qualified prohibition but it permits the Ombudsman to be satisfied "that in the particular circumstances, it is not reasonable to expect that person to resort or to have resorted to" the alternative remedy, litigation. Particular circumstances need not be unique to an individual or family. They can arise frequently, as in the Ombudsman's experience they do. Particular circumstances can include the unwillingness of individuals to litigate, their inability to do so, their wish to have their complaint determined in all its aspects, and not having monetary compensation at the forefront of their mind."
- Morris (2019)
33. In R (Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J. said at [12] that section 11(3) of the 1993 Act confers on the Defendant “the widest possible discretion” and at [13] that “[t]he Ombudsman has…an unfettered discretion whether or not to investigate a complaint of service failure under section 3(1)”.