Making sense of the case law on Ombudsman schemes

Abstract

This article analyses the case law on ombudsman schemes in the UK, with the purpose of identifying some of the key trends that underpin this branch of law pre-the first Supreme Court decision in this area, JR55 v Northern Ireland Commissioner for Complaints. While the law on ombudsman schemes remains based on legislation and the various grounds of administrative law available in judicial review, distinct bespoke principles have also been relied upon. These principles are beginning to provide consistent guidance on how the law should be used and interpreted in cases involving an ombudsman scheme. One task of the Supreme Court in JR55 will be to confirm these principles, or rationalize any departure from them.

Keywords:

• Ombudsman
• Supreme Court
• statutory interpretation
• discretionary power
• judicial review

Notes

1. In 1970 the House of Lords refused permission in Re: Fletcher's Application [1970] 2 All E.R. 52.

2. But see Ombudsman Association (2015).

3. The Parliamentary Ombudsman (Parliamentary Commissioner Act 1967); Northern Ireland Assembly Ombudsman (The Ombudsman (Northern Ireland) Order 1996); Commissioner for Complaints in Northern Ireland (The Commissioner for Complaints (Northern Ireland) Order 1996); Local Government Ombudsman (Local Government Act 1974, as amended); Health Services Ombudsman (Health Service Commissioners Act 1993); Pensions Ombudsman (Pension Schemes Act 1993); Housing Ombudsman (Housing Act 1996, section 51 and Schedule 2); Police Ombudsman Northern Ireland (Police (Northern Ireland) Act 1998, 200, 2003): Financial Ombudsman Service (Financial Services and Markets Act 2000 (as amended); Scottish Public Services Ombudsman (Scottish Public Services Ombudsman Act 2002); Independent Police Complaints Commission (Police Reform Act 2002); Office of the Independent Adjudicator for Higher Education (Higher Education Act 2004); Public Services Ombudsman for Wales (Public Services Ombudsman (Wales) Act 2005); Police Investigations and Review Commissioner (Police, Public Order and Criminal Justice (Scotland) Act 2006, Police and Fire Reform (Scotland) Act 2012); Scottish Legal Complaints Commission (Legal Profession and Legal Aid (Scotland) Act 2007); Legal Ombudsman (Legal Services Act 2007); Service Complaints Ombudsman (Armed Forces Service Complaints and Financial Assistance Act 2015).

4. E.g. the Prisons and Probation Ombudsman, Ombudsman Services.

5. E.g. R v Local Commissioner for Administration, Ex parte Eastleigh Borough Council [1988] 1 QB 855, pp 866H-867D, per Lord Donaldson of Lymington MR.

6. See the Pensions Ombudsman and the Scottish Legal Complaints Commission.

7. In all four cases, the question then arose as to the rationality of the decision of the public body to refuse to implement the recommendations of the ombudsman’s report.

8. Another example of this approach being applied by the courts is the case law on the Pensions Ombudsman (eg Arjo Wiggins Ltd v Ralph [2009] EWHC 3198 (Ch), paras 3–15, but this is an outlier scheme in that its determinations are enforceable in the courts, Pensions Scheme Act 1993, s.151(5).