Miller
Miller v Health Service Commissioner for England [2018] EWCA Civ 144
Parties and outcome
- Claimant
- Dr Miller and Dr Howarth (appellants)
- Defendant
- Health Service Commissioner for England
- Outcome
- The doctors won: their appeal was allowed, the High Court’s order was set aside and the Ombudsman’s decision was quashed.
Citations in this work
Doody
39.What fairness requires in a particular situation depends upon the context. As Lord Mustill held in R v Home Secretary ex p Doody [1994] 1 AC 531 at 560: "The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. An essential factor of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken."
Dyer
41. The courts have emphasised the wide discretion which the ombudsman has over her investigative procedures. For example, Simon Brown LJ held in R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 at 626 that: "[t]he intended width of these discretions is made strikingly clear by the legislature" As the ombudsman notes, that case concerned the materially identical provisions in the Parliamentary Commissioner Act 1967.
Cavanagh
47.The ombudsman submits that it is not necessary to see the actual letter of complaint but rather that the "ombudsman's formulation of the complaint she proposes to investigate" will suffice. I agree that it is necessary for the allegations to be set out with the particularity with which the ombudsman intends to investigate them with the corollary that the particularity must be sufficient for them to be answered in a meaningful and focused way. I do not agree with the implication of the ombudsman's submission that the ombudsman is entitled to re-craft the complaint. The ombudsman has no general power to investigate what she wants or to expand the complaint beyond its content: Cavanagh & Ors v Health Serviced Commissioner [2005] EWCA Civ 1578 at [16-18] and [38-39]. It would be better practice simply to disclose the complaint that has been made and identify that which is to be investigated. In this case, the lack of disclosure of the complaint letter or sufficient particulars of the allegations to accord with the duty of fairness was not remedied until the Draft Report was delivered to the doctors by the ombudsman.
Bradley
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.
Kay
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.
Porter v Magill
62. The question is whether a fair-minded and impartial observer would conclude that the ombudsman had pre- determined the outcome of the complaint both at the outset of the investigation and at the Draft Report stage. Jackson LJ (with whom the rest of the court agreed) in Lanes Group v Galliford Try Infrastructure [2011] EWCA 1617 held at [45] that: "Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments." Jackson LJ cited the speech of Lord Hope in Porter v Magill [2002] 2 AC 357 to identify the test: the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
Bradford
72. The breadth of the ombudsman's discretion to determine the manner in which investigations are carried out is well established. In R v Local Commissioner for Administration ex p Bradford CC [1979] QB 287 per Lord Denning MR at 311 it was held that Parliament had "deliberately left it to the ombudsman himself to interpret … as best he could: and to do it by building up a body of case law on the subject". Whether the subject matter of the investigation is maladministration or service failure that principle remains sound. It follows that the court can only interfere with the standard adopted if it is Wednesbury unreasonable. Whether a standard lacks clarity, is incapable of being readily discerned or tends to produce inconsistent decisions are issues relevant to whether the standard is unreasonable.
Mencap
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."
JR55
85.There is little further authority on the application of section 4. The appellants cite JR55 [2016] UKSC 22 in favour of their case. Lord Sumption JSC stated the following at [17]: "The Commissioner accepted that the complaint should be investigated because Mrs R said that she was not seeking monetary redress but only wanted to know what had gone wrong. I agree that that was a proper basis on which to undertake the investigation."
Cited by
- Morris (2019)
37. In R (Miller) v Health Service Commissioner [2018] EWCA Civ 144, the Court of Appeal upheld a challenge to the procedural fairness of the Commissioner’s decision- making process in that case. Ryder LJ, giving the judgment of the Court, said, at [55]: “…is important that this court does not import into the informal non-judicial process of admi nistrative and complaints adjudicators like the ombudsman th e procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem … The procedure is a matter entirely within the gift of the ombuds man provided that her decision making process is lawful, rational and reasonable.”. Legitimate expectation
- Kirkham & O’Loughlin (2020)
- Craig (9th edn)