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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R v Parliamentary Commissioner for Administration ex p. Dyer [1993] EWHC Admin 3 (19 October 1993) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1993/3.html Cite as: [1993] EWHC Admin 3 |
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QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Strand London W2 |
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B e f o r
e :
-and-
MR JUSTICE BUCKLEY
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THE ![]() ![]() ![]() ![]() |
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____________________
Verbatim
Reporters,
Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
RICHARDS
(Instructed by the Treasury Solicitor) appeared on behalf of the
Respondent.
THE APPLICANT appeared in
Person.
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Tuesday, 19th October 1993
Lord Justice Simon Brown: This is an application by Miss Monica Dyer
for judicial
review
of a decision of the
Parliamentary
Commissioner
for Administration (hereafter the
PCA)
dated 20th December 1991 not to
re-open
his investigation into her complaints against the Department of Social Security. Those complaints were many and
various
with
regard
to the Department's mishandling of her claims for invalidity benefit, supplementary benefit and income support during the late 1980s. The
PCA
for his
part
regards
the investigation as at an end, completed when on 18th September 1991 he sent a detailed 18
page
report
of its
results
to the
Rt.
Hon.
Roy
Hattersley, MP (who had
referred
the complaint to him on 13th March 1990) and to the Department, those being its
required
recipients
under the legislation.
The report,
let it be said at once, found the applicant's complaint to be justified. Time and again it criticised the Department for maladministration and in
particular
the local office for mishandling
various
aspects of the applicant's benefit claims. In several instances where the
report
identifies matters of justified complaint it notes that the
Permanent
Secretary offers his apologies to the applicant. The
PCA
says that his:
"investigation has shown that the local office have tried to improve their service to MissDyer,
including bringing
problems
which she
perceives
in the
regulations
for those in her
position
to the attention of the Department's
policy
makers. They have also been willing to apologise for their shortcomings".
In his final conclusion he states:
"Iregard
the
Permanent
Secretary's apologies, which I
pass
on to Miss
Dyer,
and the
ex
gratia
payment
of £500 [sent to her by the Department on 28th March 1991 by way of
reimbursement
for a
proportion
of her claim for the
expenses
incurred in
pursuing
her claim] as a satisfactory outcome to my investigation."
The report
did not, however, satisfy Miss
Dyer.
Far from it. Although, as stated, her challenge in form is directed to the
PCA's
refusal
to
re-open
his investigation, that is but one of her complaints; in substance she challenges the manner in which the
PCA
carried out the original investigation.
Put
shortly, the main criticisms which she directs at the
PCA
are these: First, that he investigated some only of her original complaints, omitting several which she
regarded
as of importance (and in one instance investigating an earlier
problem
about which she was no longer complaining). Second, that although he gave the Department an opportunity to comment upon the
report
in draft, he gave her no such opportunity. Third, that he
refused
to
re-open
the investigation when, after
reading
the final
report,
she
pointed
out his failure to consider a number of her complaints, and, indeed, wrongly
regarded
himself as
precluded
from
re-opening
it.
This is the first substantive application for judicial review
of the
PCA
to come before the Courts (an application for leave in an earlier case having been
refused.
The first question
raised
for decision upon it concerns the
proper
ambit of this Court's supervisory jurisdiction over the
PCA.
Mr. Stephen
Richards
on his behalf submits to us that, certainly so far as the
PCA's
discretionary
powers
are concerned, this Court has no
review
jurisdiction whatever over their
exercise.
In the alternative he submits that the Court should intervene only in the most
exceptional
cases of abuse of discretion, essentially on the same limited basis held by the House of Lords in Nottinghamshire County Council
v
Secretary of State for the Environment (1986) AC 240. and
R
v
Secretary of State for the Environment
ex
parte
Hammersmith & Fulham London Borough Council (1991) 1 AC 521 to be appropriate in the
particular
area of decision-making there in question.
The resolution
of this initial jurisdictional issue clearly depends essentially on the legislation which created the
PCA's
office and governs the discharge of his functions. To these
provisions
I now turn. They are to be found in the
Parliamentary
Commissioner
Act 1967. Most
relevant
for
present
purposes
are these:
"(1) Subject to theprovisions
of this section, the
Commissioner
may investigate any action taken by or on behalf of a government department or other authority to which this Act applies, being action taken in the
exercise
of administrative functions of that department or authority, in any case where -
(a)a written complaint is duly made to a member of the House of Commons by a member of thepublic
who claims to have sustained injustice in consequence of maladministration in connection with the action so taken; and
(b)the complaint isreferred
to the
Commissioner,
with the consent of the
person
who made it, by a member of that House with a
request
to conduct an investigation thereon.
(5) In determining whether to initiate, continue or discontinue an investigation under this Act, theCommissioner
shall, subject to the foregoing
provisions
of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Act shall be determined by the
Commissioner."
"(1) Where theCommissioner
![]()
proposes
to conduct an investigation
pursuant
to a complaint under this Act, he shall afford to the
principal
officer of the department or authority concerned, and to any
person
who is alleged in the complaint to have taken or authorised the action complained of, an opportunity to comment on any allegations contained in the complaint.
(2) Every such investigation shall be conducted inprivate,
but
except
as aforesaid the
procedure
for conducting an investigation shall be such as the
Commissioner
consider appropriate in the circumstances of the case; and without
prejudice
to the generality of the foregoing
provision
the
Commissioner
may obtain information from such
persons
and in such manner, and make such inquiries, as he thinks fit, and may determine whether any
person
may be
represented,
by counsel or solicitor or otherwise, in the investigation.
"(1) In any case where theCommissioner
conducts an investigation under this Act or decides not to conduct such an investigation, he shall send to the member of the House of Commons by whom the
request
for investigation was made (or if he is no longer a member of that House, to such member of that House as the
Commissioner
thinks appropriate) a
report
of the
results
of the investigation or, as the case may be, a statement of his
reasons
for not conducting an investigation.
(2) In any case where theCommissioner
conducts an investigation under this Act, he shall also send a
report
of the
results
of the investigation to the
principal
officer of the department or authority concerned and to any other
person
who is alleged in the
relevant
complaint to have taken or authorised the action complained of.
(3) If, after conducting an investigation under this Act, it appears to theCommissioner
that injustice has been caused to the
person
aggrieved in consequence of maladministration and that the injustice has not been, or will not be,
remedied,
he may, if he thinks fit, lay before each House of
Parliament
a special
report
upon the case.
(4) TheCommissioner
shall annually lay before each House of
Parliament
a general
report
on the
performance
of his functions under this Act and may from time to time lay before each House of
Parliament
such other
reports
with
respect
to those functions as he thinks fit."
Shortly after the Act came into force, we are told, a Select Committee was appointed specifically with regard
to the
PCA,
to
examine
his
reports
and consider any matters in connection with them.
As to his wider proposition
- that this Court has literally no
right
to
review
the
PCA's
exercise
of his discretion under the 1967 Act (not even, to give the classic illustration, if he
refused
to investigate complaints by
red-
headed complainants) - Mr.
Richards
submits that the legislation is enacted in such terms as to indicate an intention that the
PCA
should be answerable to
Parliament
alone for the way he
performs
his functions. The
PCA
is, he suggests, an officer of the House of Commons, and, the argument
runs,
the
Parliamentary
control
provided
for by the statute displaces any supervisory control by the Courts. Mr.
Richards
relies
in
particular
on these considerations: first, the stipulation under section 5 that a complaint must be
referred
to the
PCA
by a member of
Parliament
before ever his
powers
of investigation are engaged; second, the
requirement
under section 10(1) to
report
back to the member of
Parliament
(and, in certain circumstances, to each House of
Parliament
- see section 10(3)); third, the
requirement
under section 10(4) annually to lay a general
report
before
Parliament;
fourth, the
provision
under section 1(3) of the Act for the
PCA's
removal
from office only in the event of Addresses from both Houses of
Parliament.
Mr.
Richards
points
also to the
PCA
being always answerable to the Select Committee.
Despite these considerations I, for my part,
would unhesitatingly
reject
this argument. Many in government are answerable to
Parliament
and yet answerable also to the supervisory jurisdiction of this Court. I see nothing about the
PCA's
role
or the statutory framework within which he operates so singular as to take him wholly outside the
purview
of judicial
review.
I turn next, therefore, to Mr. Richards'
alternative and narrower submission that, by analogy with the two House of Lords' cases already mentioned, the Courts should
regard
their
powers
as
restricted
with
regard
to
reviewing
the
PCA's
exercise
of the discretions conferred upon him by this legislation.
I need cite one passage
only from the speeches in those two cases, this from Lord Bridge's speech in
Ex
parte
Hammersmith & Fulham LBC :
"Therestriction
which the Nottinghamshire case (1986) AC 240 imposes on the scope of judicial
review
operates only when the court has first determined that the ministerial action in question does not contravene the
requirements
of the statute, whether
express
or implied, and only then declares that, since the statute has conferred a
power
on the Secretary of State which involves the formulation and the implementation of national economic
policy
and which can only take effect with the approval of the House of Commons, it is not open to challenge on the grounds of irrationality short of the
extremes
of bad faith, improper motive or manifest absurdity. Both the constitutional
propriety
and the good sense of this
restriction
seem to me to be clear enough. The formulation and the implementation of national economic
policy
are matters depending essentially on
political
judgment. The decisions which shape them are for
politicians
to take and it is in the
political
forum of the House of Commons that they are
properly
to be debated and approved or disapproved on their merits. If the decisions have been taken in good faith within the four corners of the Act, the merits of the
policy
underlying the decisions are not susceptible to
review
by the courts and the courts would be
exceeding
their
proper
function if they
presumed
to condemn the
policy
as unreasonable."
Mr. Richards
concedes that the analogy between the
position
considered there and that arising here is not a
very
close one. He submits, however, that the underlying
rationale
for
restricting
the scope of judicial
review
in those cases applies also here. Although, as Counsel
recognises,
the
PCA's
functions are manifestly not
political,
nevertheless, he submits, the
provisions
here for
Parliamentary
control afford this case a comparable dimension.
This submission too I would reject.
There seems to me no
parallel
whatever between on the one hand decisions
regarding
the formulation and implementation of national economic
policy
- decisions "depending essentially on
political
judgment.....for
politicians
to take......in the
political
forum of the House of Commons" - and on the other hand, decisions of the
PCA
regarding
the matters appropriate for investigation and the
proper
manner of their investigation.
All that said, however, and despite my rejection
of both Mr.
Richards'
submissions on the question of jurisdiction, it does not follow that this Court will
readily
be
persuaded
to interfere with the
exercise
of the
PCA'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 discontinue 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
particular
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 conventional 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
case "manifest absurdity" does not have to be shown; but inevitably it will be almost as difficult to demonstrate that the
PCA
has
exercised
one or other of his discretions unreasonably in the
public
law sense.
Before passing
from this
part
of the case I should mention briefly two authorities with
regard
to the
exercise
of the Courts'
review
jurisdiction over Local
Commissioners'
Reports
-
R
v
Commissioner
for Local Administration
ex
parte
Eastleigh BC (1988) QB 855 and
R
v
Commissioner
for Local Administration
ex
parte
Croydon LBC (1989) 1 AER 1033. Only in
ex
parte
Eastleigh BC was the jurisdictional issue
raised,
Lord Donaldson, MR, stating: "Let me start with the fact that
Parliament
has not created a
right
of appeal against the findings in a Local
Commissioner's
Report.
It is this
very
fact, coupled with the
public
law character of the Ombudsman's office and
powers
which is the foundation of the
right
to
relief
by way of judicial
review".
Mr. Richards
accepts that the scheme, and indeed language, of the Local Government Act 1974 which created Local
Commissioners
is
very
similar to that of the 1967 Act (on which it was clearly based), but he draws our attention to certain
particular
differences which he suggests are
possibly
material, and he submits that merely because Local
Commissioners
have been held
reviewable
by the Courts it does not follow that
Parliament
intended the
PCA's
powers
under the original legislation to be
reviewable.
For my
part
I find it unnecessary to consider this submission in any depth. For this
reason:
both these Local
Commissioner
cases appear to have been concerned not with
reviewing
the
exercise
of the Local
Commissioner's
discretion but
rather
with the
examination
of his
powers;
what was being alleged was that he had contravened the
requirements
of the statute. There can surely be no
possible
question but that the Court's supervisory jurisdiction
exists
for this
purpose
and, indeed, Mr.
Richards
has not submitted to the contrary. To my mind, therefore, these Local
Commissioner
cases do not advance the argument one way or the other with
respect
to the Court's jurisdiction to
review
the
exercise
of the
PCA's
discretionary
powers.
But of course it follows from my already
expressed
conclusion upon that
point
that I would
regard
the
exercise
of the Local
Commissioner's
discretion as
reviewable
too. Again, however, only with inevitable difficulty. As Lord Donaldson said in
ex
parte
Eastleigh: ".....I am
very
far from encouraging Councils to seek judicial
review
of an Ombudsman's
report
which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed.....". Both those cases were, of course, concerned with judicial
review
applications by local authorities against whom the Local
Commissioner
had
reported
adversely. Certainly no greater encouragement should be afforded to those whose complaints the
Commissioner
has investigated; their
prospects
of success are clearly no higher.
Recognising the full width of our jurisdiction but with those considerations in mind I turn to Miss Dyer's
grounds of challenge.
As to her contention that the PCA
investigated some only of her original grounds of complaint, that is undoubtedly the case. But is she entitled to criticise the
PCA
for taking that course? More
particularly,
was the
PCA
acting outside the
proper
ambit of his discretion under section 5(5) in doing so?
The following two passages
in his
report
are
relevant:
first this from
paragraph
14:
"In her letter of complaint (MissDyer)
gave
examples
of what she considered maladministration by the local and
regional
offices. I decided to investigate six main aspects - i. an inaccurate letter, ii. an unnecessary appeal, iii. the withdrawal of her benefit without a decision, iv. the failure to issue decisions,
v.
inaccurate information and
vi.unanswered
correspondence."
"Thepapers
supplied to me by both Miss
Dyer
and the DSS contained much correspondence, minutes, notes of interviews and notes of telephone conversations. I have not found it either necessary or
expedient
to set them all out in detail in my
report;
but they have all been scrutinised and taken into account in
reaching
these findings. It is clear that Miss
Dyer
![]()
received
a
very
![]()
poor
service from the local office. There were
problems
in the handling of her correspondence, which was often unanswered, in making, or
purporting
to make, decisions on her claims and in the general
relationship
between the local office and Miss
Dyer.
I do not
propose
to address each and every shortcoming in the local office's conduct of the case but the following are my findings on the six main elements of her complaint."
He then set out his findings in some considerable detail.
In my judgment, the PCA
was entitled in the
exercise
of his discretion to limit the scope of his investigation, to be selective as to just which of Miss
Dyer's
many detailed complaints he addressed, to identify certain broad categories of complaint (the six main aspects as he called them) and investigate only those. Inevitably such an approach carried the
risk
that some of the
problems
which Miss
Dyer
complained of having
experienced
with the local office would continue, and that indeed is what Miss
Dyer
says has occurred. But no investigation should be
expected
to solve all
problems
for all time and it cannot in my judgment be said that the approach adopted here by the
PCA
was not one
properly
open to him.
Turning to Miss Dyer's
complaint that the draft
report
was sent to the Department for comment on the facts but not to her, the
respondent's
evidence indicates that this is a
practice
which has
existed
for 25 years, and is known to and acquiesced in by the Select Committee. The
reasons
for it are
explained
as follows. First, that it is the Department
rather
than the complainant who may subsequently be called upon to justify its actions before the Select Committee and, if it is shown the draft
report
and does not
point
out any inaccuracy, it will then be unable to dispute the facts stated in it. Second, the
practice
affords the Department an opportunity to give notice in writing to the
PCA,
as
expressly
provided
for by section 11(3) of the 1967 Act, of any document or information the disclosure of which, in the opinion of the
relevant
Minister, would be
prejudicial
to the safety of the State or otherwise contrary to the
public
interest. Third, sight of the draft
report
gives the Department the opportunity to
propose
the
remedy
it is
prepared
to offer in the light of any findings of maladministration and injustice contained in it. The
Commissioner
can then include in his final
report
what that
proposed
remedy
is and indicate whether he finds that it satisfactorily meets the need.
Miss Dyer
recognises,
I think, that the same
reasons
do not
exist
for sending the draft
report
to her. Indeed, having
regard
to section 11(3), it could not be sent to her unless and until it had already been cleared by the Department. Therefore, to graft on to the
existing
practice
a need to show the draft
report
to complainants too would introduce a further stage into the
process.
Does natural justice
require
this?
I do not think so. As Lord Bridge said in Lloyd v
McMahon (1987) 1 AC 625 at 702:
"My Lords, the so-calledrules
of natural justice are not engraved on tablets of stone. To use the
phrase
which better
expresses
the underlying concept, what the
requirements
of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the
rights
of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."
Assuming, as I do, and indeed as Mr. Richards
concedes, that the
PCA
makes "a decision which will affect the
rights
of" Miss
Dyer,
it should nevertheless be borne in mind that it is the Department and not her who is being investigated and who is liable to face
public
criticism for its acts. I cannot conclude that fairness here demanded that she too be shown the draft
report.
Rather
it seems to me that the
PCA,
in determining the
procedure
for conducting his investigation as
provided
for by section 7(2), was amply entitled to consider it appropriate to follow his long established
practice.
I come finally to Miss Dyer's
complaint about the
PCA's
refusal
to
re-open
this investigation. This I can deal with altogether more shortly. It seems to me that the
PCA
is clearly correct in his
view
that, once his
report
had been sent to Mr. Hattersley and the DSS (as
required
by section 10(1) and (2)) he was functus officio and unable to
re-open
the investigation without a further
referral
under section 5(1). Section 5(5), as already indicated, confers a wide discretion indeed; it does not, however,
purport
to empower the
PCA
to
re-open
an investigation once his
report
is submitted. It would seem to me unfair to the Department and outside the scheme of this legislation to suppose that the
PCA
could do as Miss
Dyer
wished.
That apart, however, it is plain
that even if the
PCA
had had the
power
to
re-open
his investigation he would inevitably have
refused
to do so: he had long since decided not to investigate Miss
Dyer's
further complaints and I have already held that he was entitled to limit his investigations in that way.
It follows that in my judgment none of Miss Dyer's
grounds of challenge can be made good and this application accordingly fails.
I would not wish to end this judgment without expressing
my appreciation to Miss
Dyer
for the skill, courtesy and moderation with which she has
presented
her case. She will, I have no doubt, be disappointed at its
result.
She must certainly not suppose, however, that her own
powers
of advocacy have in any way let her down. On the contrary, we are indebted to her for her great assistance. MR JUSTICE BUCKLEY: I agree.
MR RICHARDS:
My Lord, I would invite your Lordships to make no order as to costs.
LORD JUSTICE SIMON BROWN: That is right.
I think we discussed this the last time around, and Mr
Richards intimated that he would not be seeking any Order for costs in the event of his succeeding upon the matter. The application is dismissed and there is no Order as to costs.