Remove bar on ombudsmen handling complaints dealt with by courts: report

The statutory bars that prevent ombudsmen from handling complaints that have, or could have, been dealt with by the courts should be removed, the Law Commission has recommended.

The government’s law reform advisory body said in a report that these bars were “a product of 1960s thinking, designed to preserve the supremacy of the courts over strictly legal matters and to ensure that ombudsmen dealt only with what could be termed administrative complaints”.

The Law Commission said the jurisdiction of the ombudsmen had since expanded and the remit of judicial review had developed. The effect of the statutory bars was to create, in cases of overlap, a preference in favour of the court. This preference removed choice from citizens, it claimed.

The law reform body also urged the government to conduct a fundamental review of the public services ombudsmen and their relationship with other justice institutions, such as courts and tribunals. This was despite the fact that this was outside the scope of its report.

In its report the Law Commission focused on the work of the Parliamentary Commissioner for Administration, the Public Services Ombudsman for Wales, and the Local Government, Health Service and Housing Ombudsmen.

It warned that the procedures citizens must follow to make a complaint were “out of date and inconsistent, and can present a barrier to those seeking justice”.

The Law Commission also recommended that:

• The Administrative Court should have a power to stay judicial review proceedings to allow the matter to be considered by the relevant ombudsman. This could apply where a citizen makes a JR application in a matter where there was an arguable administrative illegality, but the claim – when considered in the round – was more about maladministration. After the Ombudsman had considered the matter, the applicant could still pursue an application to the Administrative Court if they wanted to.
• A mechanism should be created by which the public service ombudsmen can ask a question on a point of law of the Administrative Court. This might allow the ombudsmen to dispose of the complaint, rather than the complainant having to pursue court-based action.
• All of the public services ombudsmen should have “specific and clear” powers allowing them to dispose of complaints by whatever means of alternative dispute resolution they see as appropriate.
• Any statutory requirement that complaints must be made in writing should also be removed. Currently complaints to the Parliamentary Commissioner and the Health Services Ombudsman must as a matter of law be in writing. The statutes for the LGO and the Public Services Ombudsman for Wales show a legal preference for a complaint in writing, but the ombudsmen also have a discretion to dispense with that requirement. There are no statutory requirements as to the form of complaint to the Housing Ombudsman.
• Access to the Parliamentary Commissioner should be opened up by allowing citizens to complain direct to the Commissioner, rather than just through the existing route of complaining via their MP.

The law reform body said its proposed reforms would modernise and clarify the way that the ombudsmen work and make it easier for citizens to obtain redress.

Frances Patterson QC, the Law Commissioner leading on the project, said: “Public services are an everyday fact of life for a great many of us, and it is vital that we are able to seek redress if the services we receive are not what they should be.

“The public services ombudsmen have a vital role to play in providing individuals with remedies for administrative injustice. By reforming the way the ombudsmen work, we can improve access to justice for individuals, enable the ombudsmen to modernise how they respond to the public, and make savings for citizens, public bodies and the courts.”

The report can be downloaded on the Law Commission website.

Philip Hoult