By Richard Kirkham and Brian Thompson
The case of JR55 was the first occasion in which a decision of a public services ombudsman scheme in the UK had been heard in the Supreme Court. Unfortunately for the ombudsman sector, it did not go well. This post does not offer a full analysis of the case (some further reflections are presented here), but instead focuses only on some of the potential implications for our understandings of the law around ombudsman schemes.
JR55 concerned a complaint that had been made against a medical general practitioner (GP) by the widow of one of his patients. The Commissioner for Complaints for Northern Ireland investigated and found that there had been a service failure on the part of the GP in his care of the complainant’s husband. Following the Commissioner’s report, the GP apologised but refused to comply with a further recommendation that financial compensation of £10k should be paid and then brought a judicial review of the Commissioner’s action, which was unsuccessful at the High Court but successful in the Northern Ireland Court of Appeal.
At the lower levels, the judiciary were split 2/2 on the lawfulness of the Commissioner’s recommendation but, for subtly different reasons to the Northern Ireland Court of Appeal, the Supreme Court unanimously ruled it as irrational and by implication outside the powers of the office. The Supreme Court also ruled that the accompanying suggestion that the Commissioner may consider issuing a special report to the Northern Ireland Assembly on the matter was unlawful.
Reasons must be robust
The JR55 ruling contains at least one finding of irrationality against the Commissioner. The Commissioner’s decision to recommend a compensation payment of £10k by the GP is described as being ‘plucked out of the air’ and ‘lacking any rational basis’ (Para.30). This ruling will place an increased onus on ombudsman schemes to be very clear as to the justification for their determinations.
This ruling will place an increased onus on ombudsman schemes to be very clear as to the justification for their determinations.
To be fair, most would probably argue that this emphasis on sound reasoning is a good thing, which the court is right to remind the ombudsman sector of on occasion. There is also precedent for this legal point. Thus we would expect an ombudsman scheme to be able to demonstrate how the recommendation connects to the injustice suffered, perhaps supported by background guidance on the criteria employed by the office (see PHSO example Annex G paras.21-27). However, with previous cases the judgment has ordinarily gone to some length to appreciate (a) an ombudsman’s status and expertise; (b) the non-binding nature of an ombudsman determination; and (c) that a recommendation of an ombudsman does not need to be justified to the same rigour as a court. None of this deference was shown towards the Commissioner in JR55.
There is a danger with the judgment in JR55, more with its tenor than its ruling, that in the future ombuds schemes will veer towards timid findings and recommendations.
Recommending financial compensation is a risky business
There has always been a background allegation that ombudsman schemes offer a weak dispute resolution service. One way that the ombudsman community has been able to rebut this allegation is to point to the variety of different remedies that it can offer, many of which could not easily be obtained in court. The ruling in JR55 does not imply that ombudsman schemes do not have that benefit, but it does provide some mixed and largely hostile messages when it comes to the remedy of financial compensation.
At two points the Supreme Court referred approvingly to the power of ombudsman schemes, including the Commissioner, to make financial recommendations against bodies paying ‘out of public funds’ [paras. 22 and 24]. But against such a conclusion, the Supreme Court finds the Commissioner’s use of the financial remedy in JR55 unlawful for reasons which in part could be applied to any other investigated body. At one point the Supreme Court can be taken to imply that it would have been reasonable for the Commissioner to have expected the complaint to pursue a remedy in the courts if she wanted a financial remedy. More forcefully, however, the Supreme Court found that as the complaint had been originally accepted on the basis that the complainant wanted an explanation, the Commissioner was effectively estopped from later recommending a remedy that went beyond that [para.17].
The potential ramifications of this line of reasoning apply most obviously to other schemes that investigate GPs, but they potentially go much further because all ombudsman schemes exercise a discretion as to whether to take on a complaint. Two particular issues will need to be reflected upon. First, JR55 would seem to highlight the importance of considering whether financial recommendations (or indeed any remedy) might be a potential remedy at a very early stage in the process. This is a highly formalistic test for an ombudsman scheme to apply, as it appears rather presumptuous to confine the potential recommendations to the allegations contained in the complaint before an investigation has even been commenced.
It appears rather presumptuous to confine the potential recommendations to the allegations contained in the complaint before an investigation has even been commenced.
Second, it quite possibly follows from JR55 that either ombudsman schemes should avoid altogether recommending financial recommendations or, in the alternative, that where financial remedies might be obtainable through other legal channels, complainants that indicate any interest in the pursuit of a financial remedy should be encouraged to go to court rather than the ombudsman.
All discretionary power can be interpreted down
A set of understandings has built up around the legal operation of ombudsman schemes. The correctness of those understandings is something that should always be up for reconsideration, particularly in a period when there is an active debate about the effectiveness of ombudsman schemes generally. But contrary to the vast majority of cases in the area, the judgment in JR55 made no reference to those background understandings and cited only two cases; all that mattered was the relevant legislation, despite it being unclear and capable of being read in several different ways. For legal advisors to ombudsman schemes, the full legal authority of the office must now seem considerably less clear than it was pre-JR55. Pre-JR55, where the ombudsman was granted a wide discretionary power the courts invariably respected the autonomy of the office, unless the office could be found to have acted with procedural impropriety or irrationality (eg Doy v LGO, para. 16 or (Hafiz & Haque Solicitors) v Legal Ombudsman, para. 18). JR55, however, has removed those boundaries by reasserting a power to read legislation in a way that limits the scope of an ombudsman’s discretionary power.
Legislation needs to be kept constantly up to date for everything
One of the reasons why the ombudsman system in the UK has been able to evolve has been because of the flexible manner in which its founding legislation was written. Wide discretionary clauses have enabled different schemes to adapt their operation to the changing needs of the office. This solution has now broken down for two reasons. First, over time it has become clear that if they are to be more effective, ombudsman schemes need more powers than the 1960s model originally conferred. Second, the ruling in JR55 has made clear the message that if a power is not detailed clearly in legislation, the courts may strike down any purported exercise of that power.
If a power is not detailed clearly in legislation, the courts may strike down any purported exercise of that power.
The irony is that the most refined ombudsman legislation in the UK is now to be found in Northern Ireland, following the introduction of the Public Services Ombudsman Act (Northern Ireland) 2016. Today the GP would not have been granted permission to bring the claim that underpinned JR55 because the new legislation is much more detailed and specific. Likewise, in Scotland and Wales devolution has created the opportunity for the ombudsman model to be modernised accordingly and their legislatures appear alive to the need to continue to update as appropriate.
If there is one good thing about the JR55 ruling, therefore, it is that it adds to the list of arguments in favour of introducing new legislation for an updated and reformed Public Services Ombudsman that would cover the existing Parliamentary and Health Service Ombudsman schemes and the Local Government Ombudsman.
There has always been a residuary concern that the courts would at some point frown upon the ombudsman model and interpret its remit contrary to the manner in which it has evolved, and, we would argue, contrary to the manner in which the legislature has been content for it to operate. On two occasions in the JR55 judgment the Commissioner is described as performing ‘an investigatory and advisory’ function [paras.20 and 24]. This description can be read as of minor import; in practice the ombudsman’s function has grown to become an important conduit for administrative justice and a promoter of good practice. Hopefully the decision in JR55 will have a minimal impact, but it is a Supreme Court case and several schemes will be reconsidering their practices to avoid the potential for having to deal with a similarly interventionist judicial panel.
About the authors:
Brian Thompson is Senior Lecturer at the Liverpool Law School, Liverpool University. Richard Kirkham is Senior Lecturer in Public Law at the School of Law, University of Sheffield.