Tribunals and Ombudsmen cases

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R v Parliamentary Commissioner for Administration, ex parte Balchin (No.2) (2000) 79 P&CR 157

Facts: The petitioners complained that the Secretary of State for Transport was guilty of maladministration in confirming Road Orders without seeking an assurance from Norfolk County Council that the Balchins would be given adequate compensation for the effect of the road on their home. They now challenged the Ombudsman’s report, which had rejected their complaint, in judicial review proceedings

The judicial review was successful: in 1996 the decision of the PO not to investigate was quashed. In 1997, the PO reported on the matter once more, but again decided not to investigate. In 1999, the High Court quashed that decision. In 2000, the PO again reported on the matter, but again decided not to investigate. The High Court, in 2002, quashed that decision (for the third time!)

Held: In Balchin (No 2), Dyson J was concerned that the PO made his findings without giving adequate reasons.

  • The PO needs to state why he thought there was no injustice, or why he thought the question of injustice was irrelevant because there had been no maladministration. Without reasons “it leads to the reasonable suspicion that he failed to have regard to it at all, or that, if he did, his reasons for concluding that there was no injustice would not bear scrutiny.” (per Dyson J)

So Balchin advances two key legal points:

  • What constitutes ‘maladministration’ and ‘injustice’ under the Act is broadly for the PO to decide;
  • But in cases where there is apparent ‘injustice’ conceived of in the broader sense (including a sense of outrage), it is for the PO to state why he thought there was no ‘injustice,’ or why there had been no maladministration (thus ousting the injustice question).

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R (Bradley) v Secretary of State for Work and Pensions 2008] EWCA Civ 36

Facts: The Government issued guidance on pensions - guidance that was seriously flawed in that it created the impression that certain types of pension product were secure and well-funded, when they were not. The Government also changed ‘minimum funding requirements’ for such pensions, which only exacerbated the financial losses later experienced by the pension product holders.

The PO investigated the scandal and delivered a most damning report, alleging maladministration on the part of the Government occasioning serious injustice and considerable financial losses (losses have since been assessed in the £billions, not £millions).

The Minister rejected the report’s findings in its entirety.

Held: In judicial review proceedings, the High Court confirmed that it could not enforce the recommendations of the report, since they were not legally binding.

  • But, and somewhat creatively, it did find that the Minister’s rejection of the report’s findings was so unreasonable that no reasonable Minister could have so rejected the report in its entirety. The Minister had acted irrationally (i.e. Wednesbury unreasonableness).
  • This is not the same as giving legal effect to the PO’s report → the court held that the Minister is entitled to reject the findings of the PO’s report and to account for his reasons for doing so. The Minister is entitled to prefer another view. But where the Minister rejects the findings of the report and fails to account for her position, the court is entitled to hold such a rejection irrational, where it is indeed irrational

Thus, the Court of Appeal held that the misleading information the Government published on the security of the pension products amounted to maladministration occasioning injustice, and that the Minister’s rejection of such a finding was irrational

  • The Minister’s rejection of the findings were quashed → this doesn’t mean the report is legally binding in respect of the Minister’s obligations to provide a remedy to the victims or follow the recommendations of the report. Rather, the Minister must confront the report and either cogently say why the report’s are wrong (this would have to survive Wednesbury review), or to accept the findings of the report, but offer an alternative solution vis-à-vis the victims.

In other words, the Minister:

  • Is not entitled to reject the findings of a PO report where it is irrational to do so; but
  • May reject the recommendations of the report and prefer another view.

The outcome respects the important role of the PO in providing administrative redress, but affirms the idea that the PO’s functions operate within a political sphere, not a legal one.

R (Cart) v Upper Tribunal [2011] UKSC 28

Facts: The Upper Tribunals (which hears appeals from the First-Tier Tribunal) refused two claimants permission to appeal to it. The claimants sought judicial review of this refusal

Held: The Administrative Court, the Court of Appeal, and the Supreme Court all rejected the claim in judicial review - but for different reasons…

The Administrative Court ruled that decisions of the Upper Tribunal were not amenable to judicial review at all, because the Upper Tribunal was an alter ego of the High Court

The Court of Appeal thought otherwise: they said that the Upper tribunal not alter ego of the High Court and so could in principle be subject to judicial review. However, it was within the lawful discretion of the Upper Tribunal to refuse permission to appeal

  • So they said, in effect, that the Upper tribunal would only be reviewed on a pre-Anisminic basis e.g. jurisdictional error

The Supreme Court took a different approach: the Upper Tribunal's decisions may be judicially reviewed, but only if the review poses an important point of principle or practice, or that there is some other compelling reason to hear the case in judicial review

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