Conventional legal understandings of the powers of public service ombudsman schemes rest on the twin principles that they (a) have significant discretion with which to implement their powers and (b) have to operate fair processes, albeit not necessarily processes which meet the form and standards of the courtroom. One ongoing legal case in the health sector is challenging these central premises and is set to become the first ombudsman case to reach the Supreme Court. This blog highlights the inherent risks to the ombudsman model if the applicant’s arguments in that case are upheld.
In JR55 v Northern Ireland Commissioner for Complaints the Northern Ireland Court of Appeal (Lord Justice Higgins dissenting) found that the Northern Ireland Ombudsman had acted ultra vires in recommending that a GP pay a consolatory payment of £10,000 to the complainant. The NI Court of Appeal ruled that the Ombudsman had no power to make such a recommendation [28-33] and, in any event, had not properly reasoned the recommendation. Further, the Court decided that had the GP refused to implement the recommendation, it would have been ultra vires for the Ombudsman to have submitted a report to the Northern Ireland Assembly publicising the GP’s actions.
There are elements of the case which may be considered isolated to the rather old legislative scheme that operates in Northern Ireland (for a full review, see Brian Thompson). In particular, the NI Ombudsman includes an almost unique arrangement through which Ombudsman reports can be used by complainants to form a claim for financial remedy in the County Court (The Commissioner for Complaints (Northern Ireland) Order 1996, Articles 7 and 16). According to JR55, these arrangements mean that there are distinct channels through which remedies following the NI Ombudsman’s investigations must be pursued. The consequence is that, until the legislation is revised (a new ombudsman Act in Northern Ireland looks set to be passed by the Assembly before elections in May 2016), the office should be considered to operate under a different and weaker remit than other ombudsman schemes in the UK.
We would reject this interpretation, however space forbids elaborating on this separate issue. Instead this post concentrates on the potential wider ramifications of JR55 if the Supreme Court were to uphold the majority’s ruling and mode of reasoning.
The difficulty with the decision in JR55 is that its approach in dealing with an ombudsman’s discretionary power is significantly out of line with the foundational template upon which the law around ombudsman schemes has evolved, both in the UK and abroad. Whereas the courts have hitherto been largely respectful of the discretionary power of ombudsman schemes, the NI Court of Appeal has pursued a more restrictive approach towards statutory interpretation when considering the power to recommend remedies.
“Having regard to the status thus afforded to an Ombudsman’s findings and recommendations which can have significant consequences for the party found guilty of maladministration it would require clear wording to infer that the Commissioner has a power to make a recommendation that a body or individual pay monies in consequence of a finding of maladministration. Such a power would have to be found in express wording or by necessary implication from the relevant legislation.”  (added emphasis)
Thus the Court decided that with no clear reference to a power for the NI Ombudsman to recommend compensatory payments within its founding legislation, such a claim of power is unlawful.
Likewise, the Court also restrictively interpreted the general power that the Ombudsman “may from time to time lay such other reports before the Assembly as he thinks fit” (Article 19). It ruled that because the power did not specify that such a report could be used to highlight a non-compliance event, such an attempt by the Ombudsman would be outside its powers and amount to ‘a threat in terrorem’ .
This insistence upon clear and specific statutory authority for an ombudsman’s exercise of discretionary power is problematic because ombudsman statutes rarely provide much by way of detail. The Parliamentary Commissioner Act 1967 is typical in this respect. The Act not only fails to detail what maladministration or injustice is, but provides virtually no guidance on the Parliamentary Ombudsman’s role to facilitate a resolution to an upheld complaint or the form of remedies that might be recommended. More recent legislation has tended towards enhanced detail with regard to the operating powers of ombudsman schemes, but it still remains the case that legislation is unprescriptive on a number of features of their operations (eg on remedies, Public Services Ombudsman (Wales) Act, s.3).
In the main, the courts have appeared willing to accept wide discretionary power as a beneficial design feature of an ombudsman, one which has allowed the institution to carve out a distinctive role alongside the courts (ex parte Dyer). Thus, for instance, the definitions of maladministration and injustice, the circumstances in which ombudsman schemes accept complaints for investigation or choose to resolve at an early stage, are all exercises of discretion that the courts have scrutinised through standard administrative law grounds rather than imposing tight definitions on the powers themselves.
Within this wider understanding of an ombudsman’s inherent role, the remedies recommended by ombudsman schemes have been varied and flexible, and have included the option of recommending a financial remedy. With the recommendations of an ombudsman not being capable of legal enforcement, the inference has been that the risks of an unfair decision being imposed on a public authority are minimised by the authority’s inherent power either to judicially review an ombudsman’s determination or to refuse to implement recommendations (eg Nestwood).
The dangers of JR55
If the ratio of JR55 is upheld, then its logic is potentially transferable across to other schemes and other aspects of an ombudsman’s discretionary power. In practice, many of the ways in which an ombudsman’s discretion are used might be open to legal challenge, because frequently neither the clear statutory wording or ‘necessary implication’ desired for by the ruling of the NI Court of Appeal exists to support their use.
In response, the Supreme Court will be required to reflect upon the macro picture of the operation of ombudsman schemes. As promoted by the ADR Directive, the ombudsman model is not one of a small claims court bound to operate according to all features of the judicial model of dispute resolution. Ombudsman schemes have been given significant latitude in legislation to be flexible in tailoring dispute resolution towards the requirements of the particular complaint. Likewise, the purpose of the ombudsman model is to encourage dispute resolution by another means than the court, and to do so in a way that facilitates a meaningful outcome for the complainant. In terms of remedies, therefore, it is unsurprising that the legislation is silent on what the remedy should look like, particularly in the context of public services where the options vary so widely depending on the nature of the service being provided.
None of this is to doubt the importance of subjecting ombudsman schemes to proper scrutiny and to expect them to operate to high standards. But the solution called for by the NI Court of Appeal places real restrictions on the ombudsman model at a moment in time when most of civil and administrative justice is moving in a different direction.
It is submitted here that the approach applied by the Administrative Court in the October 2015 case of Miller, a case also brought by GPs, is more realistic. Contrary to JR 55, the applicant in Miller dropped an argument that the Health Services Ombudsman had no power to recommend compensation . Amongst other grounds, the Court then rejected arguments that the Ombudsman: (i) should make available all its investigative information to the disputing parties even before making a decision as to whether or not to investigate the complaint; (ii) was predisposed towards the complainant for a variety of reasons, such as having published guidance on one of the issues being investigated; (iii) should apply the legal test of culpability required in the courtroom (‘the Bolam test’ (Bolam v Friern Hospital Management Committee  1 WLR 382)) in cases involving alleged service failure in areas involving the exercise of clinical judgment; and (iv) should have refused to investigate the complaint on the basis that a judicial remedy was available, namely a claim for damages for negligence.
Overall, the Administrative Court in Miller subjected the decision-making to scrutiny, but in line with existing case law respected the discretionary power and processes of the ombudsman model. This was not the approach of the NI Court of Appeal in JR55, a decision which, at best, misunderstands the role and status of the ombudsman model in the administrative justice system. If upheld by the Supreme Court, JR55 risks sowing considerable uncertainty within ombudsman schemes as to the effective limits of their powers. This would be a retrograde step which would neuter the ability of ombudsman schemes to offer justice, and could only be addressed by subsequent amendments in legislation.
Richard Kirkham is Senior Lecturer at the University of Sheffield and Brian Thompson is Senior Lecturer at the University of Liverpool.
(Suggested citation: R. Kirkham and B. Thompson, ‘Judicial Neutering of the Powers of the Ombudsman’ U.K. Const. L. Blog (10th Nov 2015) (available at https://ukconstitutionallaw.org/))