|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rapp, R (on the aApplication of) v The Parliamentary and Health Service Ombudsman & Anor  EWHC 1344 (Admin) (15 May 2015)
Cite as:  EWHC 1344 (Admin)
[New search] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of DAVID RAPP)
|- and -
|THE PARLIAMENTARY AND HEALTH SERVICE OMBUDSMAN
OFFICE OF QUALIFICATIONS AND EXAMINATIONS REGULATION (OFQUAL)
Zoe Leventhal (instructed by Browne Jacobson LLP) for the Defendant
Ivan Hare (instructed by Wragge Lawrence Graham & Co LLP) for the Interested Party
Hearing dates: 7 May 2015
Crown Copyright ©
Mrs Justice Andrews:
The background to the claim
"We have reviewed all the evidence available regarding your statement that you do not have the occupational experience to hold an A1 Assessor award for Care. The evidence leads us to the conclusion that while [Flexible]'s records show you achieved this qualification your own testimony against yourself gives us no option but to cancel your Level 3 Award in Assessing Candidates using a Range of Methods (A1 Award) certificate and qualification with immediate effect."
The cancellation of his qualification by Edexcel meant that Mr Rapp was no longer able to work as an assessor.
"while I accept that I should not be an assessor, the true answer is far more critical. I should never have been placed in that position."
"it was argued that although there were strong doubts that Mr Rapp was competent to assess an entire NVQ in care, there was no evidence to suggest that he was not competent to (a) assess candidates and (b) assess them in the areas that he was responsible for. In fact there was evidence to the contrary in that he had achieved [the qualification] with no issues and had qualifications proving that he had undergone relevant training."
The Ombudsman's Final Report
"Ofqual are the only organisation involved that we can look at. When considering remedy for injustice to Mr Rapp, we can take into account only the impact of Ofqual's maladministration. We cannot reasonably ask Ofqual to provide a remedy for the impact on Mr Rapp of actions taken by [Flexible] or [Edexcel]. Nor can we reasonably ask Ofqual to compensate him for the impact of actions that they took without maladministration."
"very poor practice and it means that we cannot now know exactly what advice was sought or given. While it might have been a relatively routine enquiry for Ofqual, the issue raised was clearly one with the potential to impact the individual about whom the enquiry was made because it had the potential to affect his ability to continue working as an assessor. Ofqual should have made a note of such a significant conversation. Failure to record that conversation was a failure to be "open and accountable" and that is sufficiently serious to amount to maladministration."
"The distinction between the words "cancel" and "invalidate" in this case is important, although I can understand why [Edexcel] might not have recognised that at the time. If Ofqual understood that Mr Rapp had asked to have his certificate cancelled, then they were correct to say that the regulations were silent on this matter and that the decision was the awarding organisation's to make. If, however, Ofqual were told that [Edexcel] had invalidated Mr Rapp's certificate, they should have discussed whether [Edexcel] had identified any malpractice on the part of [Flexible]. In these circumstances, Ofqual would have been informed that [Edexcel] had not found any evidence of malpractice and so their advice should have been that there was no reason to invalidate Mr Rapp's certificate." [Emphasis added]
"Although there is a discrepancy between [Edexcel's] and Ofqual's accounts of the discussion about Mr Rapp's certificate, we do not believe either party is being dishonest. It seems that [Edexcel] used the terms "cancel" and "invalidate" interchangeably, not appreciating that for [Mr Skipworth] who gave the advice, the two terms had very different meanings and would have affected the advice he gave. Partly due to Ofqual's poor record keeping but also because of the time that has now passed and because [Edexcel] does not appear to have appreciated that there was a difference between these terms, we do not have sufficient evidence to find that Ofqual acted maladministratively when they gave advice to the awarding organisation. We do not, therefore, uphold this part of Mr Rapp's complaint". [Emphasis added].
The claim for judicial review
"Our approach to determining complaints is to set out what should have happened, both in terms of general and specific standards (general standards are the Ombudsman's Principles and any relevant public law provisions which place general statutory duties on all public bodies. Specific standards are the law, policy and guidance and established good practice relevant to our determination of the specific complaint Use of the general and specific standards will inform our judgment about what should have happened."
Mr Straw submitted that Mr Rapp's complaint could not be determined without an understanding of the relevant regulations and policy, including in this case the NVQ Code of Practice. Although the Ombudsman does not determine legal rights and obligations in the same way as a court does, nothing in the case law undermines her normal public law duties not to misdirect herself on the law, or to fail to follow her own published policy.
The legal framework
i) The Ombudsman has no duty to determine questions of law. He/she is not acting as a surrogate of the court in determining whether there has been unlawful conduct, but rather, investigating a complaint of maladministration under the powers conferred on him/her by statute.
ii) Maladministration is a different concept from unlawfulness; consequently in determining whether the conduct complained of amounted to maladministration, the Ombudsman is not constrained by the legal principles which would apply if they were determining whether that conduct was unlawful;
iii) Unlawfulness is neither a precondition of, nor concomitant to a finding of maladministration; there may be maladministration without unlawfulness, and vice versa.
iv) Even if, with the benefit of hindsight, it may seem obvious that the public body got something wrong, the Ombudsman must look at the question of maladministration on the basis of the information that the public body had at the relevant time, and not with the benefit of hindsight;
v) It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach.
vi) However the court will interfere if the Ombudsman fails to apply the standard that they say they are applying;
vii) The question whether any given set of facts amounts to maladministration or causes injustice to a complainant is a matter for the Ombudsman alone. Whatever it may think about the conclusion reached, and even if it fundamentally disagrees with that conclusion, the Court may not usurp the statutory function of the Ombudsman. It can only interfere if the decision reached was irrational.
viii) An Ombudsman's report should be read fairly, as a whole, and should not be subject to a hypercritical analysis nor construed as if it were a statute or a contract.
The merits of the claim
i) We cannot say what advice [Mr Skipworth] gave [Edexcel] because Ofqual failed to keep a record of that advice;
ii) We found that [Edexcel] used the terms "cancel" and "invalidate" interchangeably, but those two terms had different meanings for [Mr Skipworth] and would have affected the advice he gave;
iii) Partly because of Ofqual's poor record keeping but also because of the time that has since passed and because [Edexcel] did not appear to have appreciated that there was a difference between those terms, we do not have sufficient evidence to find that Ofqual's advice to [Edexcel] was maladministrative;
iv) We do not find that [Ofqual] should have, at that point, advised [Edexcel] to reinstate Mr Rapp's certificate.
v) Therefore we cannot say that Ofqual were responsible for any injustice resulting from Mr Rapp's certificate not being returned then.
Significantly, there is no mention in paragraph 6 of the question whether Edexcel did or did not have the power to take away the qualification. That matter had no bearing upon the conclusion that the Ombudsman was unable to say what advice was given by Mr Skipworth, and for that, among other reasons, there was insufficient evidence to enable her to find maladministration.