ON APPEAL FROM QUEEN'S BENCH, ADMINISTRATIVE COURT
(MR JUSTICE PITCHFORD)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE GOLDRING
| The Queen on the Application of Mencap
|- and -
Parliamentary Health Service Ombudsman
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Mr James Maurici (instructed by Beachcroft LLP) appeared on behalf of the Respondent.
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Lord Justice Richards :
"On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—
(a) a failure in a service provided by a health service body,
(b) a failure of such a body to provide a service which it was a function of the body to provide, or
(c) maladministration connected with any other action taken by or on behalf of such a body,
the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action."
"Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect."
"The practical effect of the legal, policy and administrative framework on disability discrimination is to require public authorities to make their services accessible to disabled people. To achieve this objective they must take all reasonable steps to ensure that the design and delivery of services do not place disabled people at a disadvantage in their enjoyment of the benefits provided by those services."
"Failure to meet this standard will mean not only that there is maladministration or service failure, but that there is maladministration or service failure for a disability related reason. This does not require a deliberate intention to treat disabled people less favourably. It will be enough that the public authority has not taken the steps needed, without good reason."
"45. The overall standard has two components: the general standard which is derived from general principles of good administration and, where applicable, of public law; and the specific standards which are derived from the legal, policy and administrative framework and the professional standards relevant to the events in question.
46 Having established the overall standard we then assess the facts in accordance with the standard. Specifically, we assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard. If so, we then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute service failure or maladministration."
"In terms of benchmark, to be able to say the action or decision of an NHS body or an individual practitioner fell so far below a standard that it constitutes service failure or maladministration I need to be able to say that the action of the NHS body or practitioner fell outside the range of reasonable practice in the circumstances."
"The central question arising in the [judicial review] claim is thus whether ... a breach of that statutory duty is, without more, maladministration and/or a failure in a service and/or a failure to provide a service, or whether such illegality must also fall outside the range of reasonable practice in the circumstances to be maladministration or a failure in service or a failure to provide a service."
"When in future considering complaints which raise the question of whether there has been a breach of statutory duty under section 21 of the Disability Discrimination Act 1995, the PHSO shall proceed on the basis that a breach of that duty amounts to maladministration and/or a failure in service and/or a failure to provide a service for the purposes of section 3 of the Health Service Commissioners Act 1993."
"15. I return shortly to the procedure which has been adopted. While the PHSO report is undoubtedly the vehicle for this claim, the ultimate target is the treating GPs. While they were not named in the report, the claimants know who they are, because it was the claimants who made the complaints to the ombudsman. Should this claim proceed to a hearing those with the most profound interest in its outcome would, in my view, be the medical practitioners. They were not served, nor have they been served and it is now 9 months since the report was published. They have undoubtedly suffered prejudice in consequence of the claimant's procedural shortcomings. As I indicated in the course of argument, had it not been for this prejudice, then I may well have taken a more generous view as to an extension of time.
16. As it is, I take the view that this is a specific prejudice which has resulted from the claimant's failure to bring this claim as soon as reasonably practicable, and it would, in my view, also be inappropriate to permit this review to proceed on that ground also."
Lord Justice Goldring:
Lord Justice Sedley:
Order: Application granted; Appeal allowed.