Non-Legal Redress

Question 1

What is an ombudsman and how does it work in the UK?

Answer 1

An ombudsman is an independent official appointed to investigate and address complaints from individuals or groups against government bodies or public institutions.
The ombudsman operates as a “last resort” option for individuals who have exhausted all other avenues for addressing their grievances. The ombudsman investigates complaints of maladministration and injustice and has the power to recommend remedies and provide redress to those who have suffered harm or loss as a result of government bodies or public institutions.

Question 2

Why is the ombudsman needed?

Answer 2

It provides an accessible and impartial mechanism for holding public authorities accountable for their action. It allows individuals to seek redress for grievances, even when other avenues for complaint have been exhausted or are inaccessible.
It also plays an important role in improving the quality of public services by identifying areas of concern and making recommendations for improvements.

Question 3

What are the three example cases where Ombudsman was a better option than Judicial Review?

Answer 3

R (H) v. Mental Health Review Tribunal, R (X) v Local Authority and R (Y) v HMRC

Question 4

In which certain situations may the Ombudsman be a better option than Judicial Review?

Answer 4

• The Ombudsman can be a more accessible and cost-effective option for individuals who cannot afford the high costs of pursuing a legal case. Ombudsmen services are free to use, and they offer a simpler and less formal process compared to judicial review, which requires legal representation and can involve lengthy court proceedings.
• the Ombudsman has a wider remit than judicial review, which is limited to examining the legality and procedural fairness of a decision. Ombudsmen, on the other hand, can investigate complaints about maladministration, which covers a broad range of issues such as unreasonable delays, poor communication, negligence, and improper conduct.
• the Ombudsman’s role is to investigate complaints and provide recommendations to resolve them, which can lead to quicker and more practical solutions than judicial review, which can only declare a decision unlawful or quash it. The Ombudsman can make recommendations for remedies such as an apology, compensation, and changes to policies and procedures, which can lead to systemic improvements in the public body’s decision-making process.

Question 5

Give example case where the Ombudsman was a better option than judicial review. R (Y) v HMRC)

Answer 5

• R (Y) v HMRC - Claimant challenged HMRC’s decision to withhold tax credits. Claimant complained to the Parliamentary and Health Service Ombudsman who found that HMRC had made errors in its calculations and recommended that the claimant should be paid the tax credits owed. HMRC complied with the Ombudsman’s recommendation, and the claimant received the tax credits owed.

Question 6

Give example case where the Ombudsman was a better option than judicial review. (R (H) v. Mental Health Review Tribunal

Answer 6

• R (H) v. Mental Health Review Tribunal - the claimant challenged the Mental Health Review Tribunal’s decision to detain him under the Mental Health Act 1983. Claimant complained to the Parliamentary and Health Service Ombudsman, who found the claimant had not been adequately informed of his rights and recommended the Tribunal should release him. The Tribunal complied with the recommendation and the claimant was released.

Question 7

Give example case where the Ombudsman was a better option than judicial review. R (X) v Local Authority

Answer 7

• R (X) v Local Authority - The claimant challenged local authority’s decision to cut his care package. Claimant complained to the Local Government Ombudsman who found that the local authority had failed to assess the claimant’s needs properly and recommended that the care package be reinstated. Local authority complied with the Ombudsman’s recommendation and claimant’s care package was reinstated.

Question 8

What is the Parliamentary Commissioner Act 1967 and why was it implemented?

Answer 8

UK law establishing the office of the Parliamentary Commissioner for Administration, commonly known as the Parliamentary Ombudsman.
The purpose of the Act was to create an independent mechanism for the investigation of complaints against government departments and other public bodies, with the aim of providing redress for individuals who have suffered injustice as a result of maladministration.

Question 9

Explain the factors affecting access to the Ombudsman

Answer 9

(i) Cost: This refers to the financial cost associated with bringing a complaint to the Ombudsman. In the UK, the Ombudsman service is free for complainants to use, so cost is not a significant barrier to access in this context.

(ii) Social factors: Awareness and willingness: This refers to the level of awareness and willingness among the public to use the Ombudsman service. If individuals are not aware of the Ombudsman or do not trust the service, they may be less likely to use it. This can be a barrier to access. Similarly, if individuals do not feel that their complaint is significant enough or that they will be taken seriously, they may be less likely to use the service.

(iii) The “MP filter”: This refers to the practice of Members of Parliament (MPs) filtering complaints before they are brought to the attention of the Ombudsman. Some MPs act as gatekeepers, only passing on complaints that they believe are worthy of investigation. This can be a barrier to access for those whose complaints are filtered out by MPs.

Question 10

What is the are the benefits of the “MP filter” and disadvantages?

Answer 10

• This practice is grounded in the political background and constitutional tradition of the UK.
• it is seen as a complement to parliamentary accountability procedures, which involve MPs holding the government accountable for its actions. The ombudsman acts as an additional avenue for redress, providing an impartial and independent means of investigating complaints against public bodies.
• it reflects the constitutional tradition of the primacy of Parliament in the UK. This means that Parliament is the supreme law-making body, and that its procedures and traditions are highly respected. By requiring complaints to be filtered through MPs, the ombudsman system acknowledges the important role of Parliament in holding the government accountable.
• critics argue that the MP filter can create barriers to accessing the ombudsman, particularly for marginalised or disadvantaged groups who may not have easy access to their MP or who may not be aware of the complaints process. Nonetheless, the MP filter remains an important feature of the UK’s ombudsman system.

Question 11

Was the “MP filter” always part of the original proposal for the Parliamentary Commissioner?

Answer 11

• original proposal suggested after five years, individuals would have direct access to Ombudsman w/out having to go through their MP - “MP filter” has however become permanent feature of Ombudsman system, as said by R. Gordon - “Better to Serve the Public” - argues that MP filter has become embedded in culture and concept of Public Services Ombudsman.
• MP filter is as a result of constitutional tradition in UK, which places strong emphasis on primacy of Parliament.

Question 12

What is stated in Section 5 of Parliamentary Commissioner Act 1967?

Answer 12

• ie the Ombudsman’s jurisdiction allows them to investigate complaints of maladministration and associated injustices if the complaint is properly made through an MP referral.

Question 13

What does Crossman say in his quote on maladminsitration?

Answer 13

“We might have made an attempt… to define, by catalogue, all of the qualities which make up maladministration by a civil servant… It would be along and interesting list.”

• to emphasise the broad scope of maladministration

Question 14

What key principles guide the Ombudsman’s assessment of whether maladministration has occurred? (And Penises Trap Fairies Rarely Intertwined)

Answer 14

• Appropriate action: Public authority makes accurate and correct decisions, taking appropriate actions and following proper procedures
• Prioritise: Public authority prioritises needs and interests of individuals they serve
• Transparency: Public authority is open, transparent and policies are open to scrutiny
• Fairness: Public authority treats individuals fairly and without discrimination
• Rectification: If a mistake or error has occurred, public authority takes steps to rectify the situation
• Improvement: Public authority seeks continuous improvement

Question 15

Must there be a causal link between maladministration and injustice?

Answer 15

Yes there must be a causal link between maladministration and injustice (harm or negative impact experienced by the individual. The maladministration must be the cause or significant factor contributing to the injustice suffered.

Question 16

When the Ombudsman investigates a complaint and finds evidence of maladministration and resulting injustice, the outcomes of the investigation are in the form of recommendations. What can the Ombudsman recommend?

Answer 16

• Recommendations are not binding and public authorities are not legally obligated to follow them, however they carry significant moral and persuasive weight.

Recommendations:
- acknowledgment of mistakes or errors made by the public authority
- public authority to offer an apology to the complainant.
- public authority makes a financial payment to the complainant as compensation for the harm suffered.
- public authority takes specific actions to prevent similar mistakes from happening to others. This can include implementing changes to policies, procedures, or training to improve the quality of service delivery and prevent future instances of maladministration.

Question 17

What is the double dimension of the Ombudsman?

Answer 17

On one hand, the outcomes aim to address the specific harm caused to the complainant and provide them with some form of redress. On the other hand, the outcomes also aim to improve the overall services and prevent similar mistakes from occurring in the future, benefiting not just the individual complainant but also others who interact with the public authority.

Question 18

What is stated in Section 10(3) of Parliamentary Commissioner Act?

Answer 18

• If, after conducting an investigation, it appears to the Commissioner that the situation will not be remedied, he may lay before each House of Parliament a special report upon the case, creating a political process increasing the pressure on the public body and making the issue extremely high profile. Also Parliament may make this recommendation binding.

Question 19

Which specific case illustrates where government bodies reject the Ombudsman’s recommendations?

Answer 19

Bradley [2008] EWCA Civ 36:
- systemic issue that affected a large number of people and resulted in significant financial loss.
Ombudsman conducted investigation and made systemic recommendations to address issue + provide compensation to those affected.
- public body responsible for maladministration rejected Ombudsman’s recommendations - case went to Court of Appeal.
- Court examined whether the public body’s decision to reject the Ombudsman’s recommendations were Wednesbury unreasonable and ultimately concluded that public body’s decision to reject the Ombudsman’s recommendations was not Wednesbury unreasonable as they were not legally binding and the public body was not legally obliged to comply with them.

Question 20

What is Wednesbury unreasonable?

Answer 20

whether it was so irrational or unreasonable that no reasonable authority would have made the same decision.

Question 21

Explain Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] ie the Wednesbury case

Answer 21

• Wednesbury Corporation (local authority) had power to grant or refuse licenses for cinema performances.
• W refused license to APPH for Sunday cinema screenings.
  APPH appealed to court arguing W had acted unreasonably.
• court considered standard of reasonableness applied to administrative decisions. Held that a decision would be regarded as Wednesbury unreasonable if was so outrageous in its defiance of logic or of accepted moral standards that no sensible person applying their mind to the question could have arrived at it.
• ie court established administrative decisions could be reviewed by courts if were so irrational or unreasonable that no reasonable decision-maker could have made the same decision.

Question 22

What happened in Equitable Members Group [2009] EWHC 2495?

Answer 22

• Equitable Members Group sought compensation for losses and argued FOS had not adequately addressed complaints. claimed FOS failed to consider full extent of their losses, etc.
• EMG sought to invoke courts to provide additional support to the Ombudsman’s powers + overturn FOS’ decisions, court ruled in favour of FOS.
• This confirms the limited scope of judicial review.

Question 23

If the courts say it is Wednesbury unreasonable to ignore the recommendation of the Ombudsman then it implies the recommendation becomes…

Answer 23

legally binding ie the court’s determination reinforces the Ombudsman’s recommendation and compels the public body to comply with it.

Question 24

When a public body rejects the Ombudsman’s recommendations, the court can be invoked through a process called…

Answer 24

judicial review.

Question 25

What is the purpose of invoking judicial review in cases where the Ombudsman’s recommendations have been refused?

Answer 25

• The purpose of invoking judicial review in these cases is to give an extra boost to the Ombudsman’s power and ensure that the systemic issues are addressed, especially when public bodies refuse to act on the Ombudsman’s recommendations voluntarily.
• It provides a mechanism to hold public bodies accountable and, in some cases, make the Ombudsman’s recommendations legally binding to secure redress for the individuals affected by the maladministration.

Question 26

What controversies surround the outcomes of the Ombudsman’s investigations and the role of judicial review in relation to said outcomes?

Answer 26

• First controversy: is judicial review even an appropriate mechanism to challenge the Ombudsman’s findings and recommendations. Judicial review is a legal process through which courts review the lawfulness and procedural fairness of decisions by public bodies, whilst the ombudsman is more a political process.
• Second controversy: Ombudsman recommendations not legally binding, raising question of whether ombudsman findings should carry more weight + have binding effect - would enhance accountability + effectiveness?
  On the other hand, arguments against binding recommendation, citing concerns about separation of powers and the need for flexibility in addressing complex administrative matters

Question 27

What arguments exist for maintaining the Ombudsman recommendations as not legally binding?

Answer 27

1. SEPARATION OF POWERS:
   Ombudsman, as part of executive branch of gov, should not have authority to make legally-binding decisions that can affect public bodies. This is to maintain balance + independence of different branches of gov.
2. COMPLEXITY OF ADMINISTRATIVE MATTERS:
   Public bodies need some flexibility to handle complex administrative matters in most appropriate way. By NOT making Ombudsman recommendations binding, public bodies can consider various factors + circumstances specific to each case + make decisions most suitable for situation.

Question 28

Explain the case of The Association of British Civilian Internees v Secretary of State for Defence [2003] where both judicial review and the Ombudsman were utilised as redress mechanisms

Answer 28

• group of individuals who were interned as civilians by Japanese gov during WW2 - sought compensation for suffering + losses experienced during their internment
• group pursued judicial review (legal process), asked court to review lawfulness of decision made by Secretary of State for Defence regarding their compensation claim - argued decision unfair + should be overturned
• court ruled against group in judicial review - did not find decision unlawful or unjust.
• group then turned to Ombudsman - lodged complaint, Ombudsman conducted investigation into their case.
• Ombudsman sided w group + found maladministration + injustice in handling of claim.

Question 29

How does the scope of Judicial Review differ from the scope of the Ombudsman?

Answer 29

• Judicial Review focuses on examining lawfulness of decisions made by public authorities - assesses whether decision or action by public body is consistent w existing laws + regulations.
• Ombudsman’s scope extends beyond lawfulness to include considerations of injustice. investigates cases where individuals have suffered from maladministration and/or unfair treatment, even if actions may technically be lawful.

Question 30

How does the institutional complexity of Judicial Review differ from the institutional complexity of the Ombudsman?

Answer 30

• Judicial Review involves court process where independent judge or panel of judges review decision-making process of public body. Formal legal procedure w specific rules + requirements.
• Ombudsman operates as independent body outside court system. Conducts investigations into complaints made by individuals subject to maladministration or injustice by public bodies - role is to provide more accessible + user-friendly alternative to court proceedings

Question 31

How does the nature of remedies of Judicial Review differ from the nature of remedies of the Ombudsman?

Answer 31

• In Judicial Review, primary remedy sought = typically declaration from court regarding legality or illegality of decision - can result in decision being overturned or quashed if found to be unlawful.
• Ombudsman offers range of remedies aiming to address maladministration or injustice suffered by individuals - apologies, compensation, changes in procedures or systematic improvements to prevent similar issues occurring in future.

Question 32

What 5 specific matters can be investigated by the Ombudsman?

Answer 32

• Investigation can be initiated when member of public claims to have suffered injustice as result of maladministration.
• Maladministration refers to instances where has been misconduct, unfair treatment, negligence, or failure to follow proper procedures in administrative actions or decisions made by public body

Question 33

Is “injustice” defined in Public Commissioner Act?

Answer 33

• No.
• Allows for flexibility in interpreting what constitutes an injustice

Question 34

How is “injustice” understood by the Ombudsman in terms of loss?

Answer 34

• Not requiring material loss.
• Includes intangible factors such as anxiety, distress, or outrage caused by maladministration

Question 35

What was the concept of “injustice” in the UKVI case?

Answer 35

• individuals may have experienced distress and anxiety as a result of maladministration by the UK Visa and Immigration (UKVI) department.
• This could include situations where delays or errors in processing visa applications caused emotional stress and uncertainty for the individuals involved.
• payment of £1400

Question 36

What was the concept of “injustice” in the HIV case and what was the outcome?

Answer 36

• addressing cases where individuals faced an increased risk of illness, as well as distress and anxiety, due to maladministration related to HIV-related services.
• failures in providing appropriate medical care, support, or access to necessary treatments.
• payment of £2000 (and noted training improvement)

Question 37

What was the “injustice” in the ESA (Employment and Support Allowance) case and what was the outcome?

Answer 37

• may investigate instances where individuals have suffered a reduced standard of living and a lower quality of life due to maladministration by the department responsible for administering the Employment and Support Allowance (ESA).
• include errors in benefit assessments or delays in processing claims that resulted in financial hardships and negative impacts on the well-being of the affected individuals.
• outcome: apology, payment of £7500, add interest to arrears payment, systematic action and report to Parliament - double dimension