Morris (2019)
R (Morris) v Parliamentary and Health Service Ombudsman [2019] EWHC 1603 (Admin)
Parties and outcome
- Claimant
- Irene Morris
- Defendant
- Parliamentary and Health Service Ombudsman
- Interested party
- Guy’s and St Thomas’ NHS Foundation Trust
- Outcome
- The Ombudsman won: Morris’s application for judicial review was dismissed.
Citations in this work
Bradford
28. The Courts have considered in detail th e broad discretionary powers given to the Defendant and other similar ombudsmen, and the extent of the court’s supervisory jurisdiction, beginning with R v Local Commissioner ex p Bradford Council [1979] 1 QB 287, at 311C per Lord Denning.
Dyer
29. In R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, Simon Brown LJ, giving the judgment of the Divisional Court, in respect of materially identical provisions in the Parliamentary Commissioner Act, rejected the submission that the Commissioner’s decisions fell “wholly outside the purview of judicial review” (at 625F) or that the scope of judicial review was not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity (at 625G – 626E). He went on to say, at 626E - G: “….despite my rejection of both Mr Richards’ submissions on the question of jurisdiction, it does not follow that this court will be readily persuaded to interfere with the exercise of the Commissioner’s discretion. Quite the contrary. The intended width of these discretions is made strikingly clear by the legislature: under section 5(5), when determining whether to initiate, continue or discont inue an investigation, the Commissioner shall act in accordance with his own discretion;” under section 7(2), “the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case.” Bearing in mind too that the exercise of these pa rticular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conven tional ground of Wednesbury unreasonableness ... Recognising this, indeed, one may pause to wonder whether in reality the end result is much different from that arrived at by the House of Lords in the two cases referred to, where the decisions in question were held “not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity.” True, in the present cases “manifest absurdity” does not have to be shown; but inevitably it will be almost as hard to demonstr ate that the Commissioner has exercised one or other of his discretions unreasonably in the public law sense.”
Balchin (No 1)
30. In R v Parliamentary Commissioner for Administration ex p Morris and Balchin [1997] JPL 917, Sedley J. considered the meani ng of the terms “maladministration” and “injustice”, as used in the legislation. He went on to say, at [17]: “In addition, the Commissioner is an investigative officer, not an adjudicative tribunal. As the Divi sional Court held in ex parte Dyer (ante), section 5(5) of the 1967 Act gives him a wide area of choice as to the manner in wh ich he investigates. But this discretion, too, will be constrained by the limits set by public law.”
Mencap
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)”.
Dyer
34. In R (Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J. held (at [30]) that: “The law, as set out by both th e 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 “strik ingly clear” by the legislature…. Although I will not go so far as Mitting J appears to have done in R (on the application of Me ncap) v The Parliamentary and Health Service Ombudsman [2011 ] EWHC 3551 in indicating that there is unfettered discretion, nonetheless it is perfectly clear that such fetters as there are exceedingly loosely applied.
Morris (2014)
35. In the Claimant’s first judicial review claim ( R (Morris) v The Health Service Commissioner [2014] EWHC 4364 (Admin)), Jay J. in terpreted Mitting J.’s reference to an “unfettered discretion” in the Mencap case 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” (at [35]). If there was any difference of substance between the approach taken by Mitting J. in the Mencap case and by Collins J. in Jeremiah, Jay J. preferred the reasoning of Jeremiah. I agree with Jay J.’s approach.
Newman
36. In R (Newman) v The Parliamentary and Health Service Commissioner [2017] EWHC 3336 (TCC), Jefford J. accepted the submi ssion that the Commissioner had a broad discretion and that a challeng e to the exercise of this discretion on the grounds that it was Wednesbury unreasonable (as explained by Sedley J. in Balchin) faced a high hurdle.
Miller
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
Begbie
39. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] 1 AC 453, Lord Hoffmann said, at [60]: “The relevant principles of administrative law were not in dispute between the parties and I do not think that this is an occasion on which to re-examine the jurisprudence. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is “clear, unambiguous and devoid of relevant qualification”: see Bingham LJ in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called “the macro-political field”: see R v Secretary of State for Educati on and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.” In considering whether the representations relied upon to found the legitimate expectation were “clear, unambiguous and devoid of relevant qualification”, the question is how, on a fair re ading of the promise, it would have been reasonably understood to those to whom it was made: see R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, per Dyson LJ, at [56].”
Bancoult (No 2)
39. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] 1 AC 453, Lord Hoffmann said, at [60]: “The relevant principles of administrative law were not in dispute between the parties and I do not think that this is an occasion on which to re-examine the jurisprudence. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is “clear, unambiguous and devoid of relevant qualification”: see Bingham LJ in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called “the macro-political field”: see R v Secretary of State for Educati on and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.” In considering whether the representations relied upon to found the legitimate expectation were “clear, unambiguous and devoid of relevant qualification”, the question is how, on a fair re ading of the promise, it would have been reasonably understood to those to whom it was made: see R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, per Dyson LJ, at [56].”
Coughlan
40. In Paponette & Ors v Attorney General of Trinidad and Tobago [2010] UKPC 32, Lord Dyson summarised the principles to be applied when considering the circumstances in which a public body may be entitled to frustrate a substantive legitimate expectation. “34. The more difficult question is whether the government was entitled to frustrate the legitimate expectation that had been created by its representations. In recent years, there has been considerable case law in England and Wales in relation to the circumstances in which a public authority is entitled to frustrate a substantive legitimate expectation. Some of it was referred to by Warner JA in her judgment. The leading case is R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 . Lord Woolf MR, giving the judgm ent of the Court of Appeal said, at para 57: “Where the court considers that a lawful promise or practice has induced a legi timate expectation of a benefit which is substantiv e, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.” …
Paponette
40. In Paponette & Ors v Attorney General of Trinidad and Tobago [2010] UKPC 32, Lord Dyson summarised the principles to be applied when considering the circumstances in which a public body may be entitled to frustrate a substantive legitimate expectation. “34. The more difficult question is whether the government was entitled to frustrate the legitimate expectation that had been created by its representations. In recent years, there has been considerable case law in England and Wales in relation to the circumstances in which a public authority is entitled to frustrate a substantive legitimate expectation. Some of it was referred to by Warner JA in her judgment. The leading case is R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 . Lord Woolf MR, giving the judgm ent of the Court of Appeal said, at para 57: “Where the court considers that a lawful promise or practice has induced a legi timate expectation of a benefit which is substantiv e, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.” …
Nadarajah
38. If the authority does not pla ce material before the court to justify its frustration of the exp ectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at para 68 : “The principle that good administration requires public aut horities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.” It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove that the failure or refusal was not justified. …
Bibi
42. It follows that, unless an au thority provides evidence to explain why it has acted in breach of a representation or promise made to an applicant, it is unlik ely to be able to establish any overriding public interest to defeat the applicant's legitimate expectation. Without evidence, the court is unlikely to be willing to draw an inference in favour of the authority. This is no mere technical point. The breach of a representation or promise on which an applicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands th at it needs to be justified. Often, it is only the authority th at knows why it has gone back on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justif y its act by reference to some overriding public interest, it must provide the material on which it relies. In particular, it must gi ve details of the public interest so that the court can decide how to strike the balance of fairness between the interest of the applicant and the overriding interest relied on by the authority. As Schiemann LJ put it in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607 , [2002] 1 WLR 237, at para 59, where an authority decides not to give effect to a legitimate expectation, it must “articulate its reasons so that their propriety may be tested by the court”. …
Coughlan
45. There is a fu rther point. In Bibi, Schiemann LJ said that an authority is under a duty to consid er a legitimate expectation in its decision making process. He said: “49. Whereas in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assu age the disappointed expectations. …