The Supreme Court has handed down judgment in the matter of an application by JR55 for Judicial Review (Northern Ireland)  UKSC 22 (JR55) on 11 May 2016. The decision will be of interest to all public sector ombudsmen given the arguments that were heard with regard to the breadth of the powers of the Northern Ireland Commissioner for Complaints (Complaints Commissioner). We set out below a summary of the decision of the Court. Whilst the Complaints Commissioner operates under a unique statutory framework, the reasoning given by the Justices may offer some insight on how other similar issues may be viewed by the Court.
The original judicial review proceedings in JR55 arose out of the recommendation of the Complaints Commissioner that a GP found to be guilty of maladministration should pay £10,000 to the complainant, the widow of a patient of the GP. The GP challenged the power of the Complaints Commissioner to make such a recommendation, and subsequently the power of the Complaints Commissioner to lay a special report before the Northern Ireland Assembly naming the GP.
Having been unsuccessful in the Northern Ireland Court of Appeal, the Complaints Commissioner subsequently appealed to the Supreme Court. The Justices unanimously dismissed the appeal, holding that the Complaints Commissioner had (i) no power to recommend payment of a money sum against an individual who was not a public authority; and (ii) no power to make a special report drawing the attention of the legislature to such a person's failure to comply with a recommendation.
In holding that the Complaints Commissioner had no power to recommend payment of a monetary sum against an individual, the court drew a distinction between complaints against public bodies and complaints against private individuals performing public services in contract with a public body such as the NHS. In this case the Court highlighted that whilst there may be a public law duty (and case law) requiring public bodies to comply with recommendations of statutory ombudsmen, unless there are cogent reasons not to do so, no such public or private law requirement exists in respect of private individuals. The court distinguished a recommendation made against a public body for payment out of public funds from a similar recommendation against a private individual to pay out of his own pocket in circumstances when that individual has no public or private law duty to pay. The court further noted that other than a Judicial Review, which offers limited scope for a review of the merits, a private individual has no means available to challenge the findings of an ombudsman before a court. Accordingly, the court considered that there was an assumption inherent in the Complaints Commissioner's statutory framework that monetary recommendations would not be made against private individuals of a kind which could have no legal effect.
In relation to the Complaints Commissioner's power to lay special reports before the legislature, the court referred to and distinguished the Parliamentary Commissioner for Administration in the United Kingdom (Parliamentary Ombudsman) from the Complaints Commissioner. The Justices reiterated that the statutory framework governing the Parliamentary Ombudsman includes provision for a special report to be laid before Parliament if it appears to the Parliamentary Ombudsman that injustice has been caused in consequence of maladministration and that the injustice will not be remedied. No such power existed in the statutory framework for the Complaints Commissioner, whose recommendations and findings, insofar as they are against public bodies, are legally enforceable by the court in accordance with the statutory framework. The court considered that the absence of an equivalent power in relation to private individuals was not an oversight by the legislature and no such power existed for the Complaints Commissioner.
A further point of interest is the Court's discussion of when an ombudsman may exercise its discretion to investigate a complaint notwithstanding the fact that a complainant had or has a remedy by way of proceedings in a court of law in accordance with the statutory scheme. In this case the Complaints Commissioner agreed to investigate, despite the complainant having an alternative remedy available by way of civil proceedings. The Complaint Commissioner's rationale for doing so was that the complainant had made clear that she was not seeking monetary redress, but only wanted to know what had gone wrong prior to her husband's death. In such circumstances, the Justices determined that the Complaints Commissioner could properly conclude that it would not have been reasonable to expect the complainant to commence proceedings if she was not seeking financial relief. However, the court went on to state that if the only basis on which the Complaints Commissioner felt able to undertake an investigation was that the complainant was not seeking a financial remedy, then it would not be proper to recommend that a payment of money be made in the event that maladministration is found. Ombudsmen, and in particular the LGO, should bear this in mind when deciding whether or not to exercise their discretion to investigate under provisions such as section 26(6) of the 1974 Act
The Supreme Court also considered that even if the Complaint Commissioner had been entitled to recommend monetary redress, the report did not properly explain why the failing warranted the specific sum or how the figure had been arrived at. The Court said that if the Complaints Commissioner had power to recommend a payment then they would have regarded the payment as lacking any rational basis. It is clear from this that when making an aware of monetary redress reasons should be given with a clear explanation of how the sum has been calculated.
One final point to note is that following establishment of a consolidated Northern Ireland Public Services Ombudsman (NIPSO) from 1 April 2016, the dispute as to the powers of the Complaints Commissioner became academic, as noted by the Supreme Court. The NIPSO is emboldened with wider powers than the Complaints Commissioner, including those relating to the issuing of special reports. The Government are yet to publish a draft Bill following the consultation on the creation of a single Public Services Ombudsman (PSO) in England so it remains to be seen whether the PSO will be benefit from the same wide powers as the NIPSO.
For more information about the judgement in JR 55, please get in touch:
Virginia Cooper, Partner
Amy Tschobotko, Associate