Tuesday, 19th October 1993
Lord Justice Simon Brown: This is an application by Miss Monica Dyer for judicial review of a decision of the Parliamentary Commissioner for Administration (hereafter the PCA) dated 20th December 1991 not to re-open his investigation into her complaints against the Department of Social Security. Those complaints were many and various with regard to the Department's mishandling of her claims for invalidity benefit, supplementary benefit and income support during the late 1980s. The PCA for his part regards the investigation as at an end, completed when on 18th September 1991 he sent a detailed 18 page report of its results to the Rt. Hon. Roy Hattersley, MP (who had referred the complaint to him on 13th March 1990) and to the Department, those being its required recipients under the legislation.
The report, let it be said at once, found the applicant's complaint to be justified. Time and again it criticised the Department for maladministration and in particular the local office for mishandling various aspects of the applicant's benefit claims. In several instances where the report identifies matters of justified complaint it notes that the Permanent Secretary offers his apologies to the applicant. The PCA says that his:
"investigation has shown that the local office have tried to improve their service to Miss Dyer, including bringing problems which she perceives in the regulations for those in her position to the attention of the Department's policy makers. They have also been willing to apologise for their shortcomings".
In his final conclusion he states:
"I regard the Permanent Secretary's apologies, which I pass on to Miss Dyer, and the ex gratia payment of £500 [sent to her by the Department on 28th March 1991 by way of reimbursement for a proportion of her claim for the expenses incurred in pursuing her claim] as a satisfactory outcome to my investigation."
The report did not, however, satisfy Miss Dyer. Far from it. Although, as stated, her challenge in form is directed to the PCA's refusal to re-open his investigation, that is but one of her complaints; in substance she challenges the manner in which the PCA carried out the original investigation. Put shortly, the main criticisms which she directs at the PCA are these: First, that he investigated some only of her original complaints, omitting several which she regarded as of importance (and in one instance investigating an earlier problem about which she was no longer complaining). Second, that although he gave the Department an opportunity to comment upon the report in draft, he gave her no such opportunity. Third, that he refused to re-open the investigation when, after reading the final report, she pointed out his failure to consider a number of her complaints, and, indeed, wrongly regarded himself as precluded from re-opening it.
This is the first substantive application for judicial review of the PCA to come before the Courts (an application for leave in an earlier case having been refused. The first question raised for decision upon it concerns the proper ambit of this Court's supervisory jurisdiction over the PCA. Mr. Stephen Richards on his behalf submits to us that, certainly so far as the PCA's discretionary powers are concerned, this Court has no review jurisdiction whatever over their exercise. In the alternative he submits that the Court should intervene only in the most exceptional cases of abuse of discretion, essentially on the same limited basis held by the House of Lords in Nottinghamshire County Council v Secretary of State for the Environment (1986) AC 240. and R v Secretary of State for the Environment ex parte Hammersmith & Fulham London Borough Council (1991) 1 AC 521 to be appropriate in the particular area of decision-making there in question.
The resolution of this initial jurisdictional issue clearly depends essentially on the legislation which created the PCA's office and governs the discharge of his functions. To these provisions I now turn. They are to be found in the Parliamentary Commissioner Act 1967. Most relevant for present purposes are these:
Section 5:
"(1) Subject to the provisions of this section, the Commissioner may investigate any action taken by or on behalf of a government department or other authority to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where -
(a)a written complaint is duly made to a member of the House of Commons by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken; and
(b)the complaint is referred to the Commissioner, with the consent of the person who made it, by a member of that House with a request to conduct an investigation thereon.
(5) In determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Act shall be determined by the Commissioner."
Section 7:
"(1) Where the Commissioner proposes to conduct an investigation pursuant to a complaint under this Act, he shall afford to the principal officer of the department or authority concerned, and to any person who is alleged in the complaint to have taken or authorised the action complained of, an opportunity to comment on any allegations contained in the complaint.
(2) Every such investigation shall be conducted in private, but except as aforesaid the procedure for conducting an investigation shall be such as the Commissioner consider appropriate in the circumstances of the case; and without prejudice to the generality of the foregoing provision the Commissioner may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.
Section 10:
"(1) In any case where the Commissioner conducts an investigation under this Act or decides not to conduct such an investigation, he shall send to the member of the House of Commons by whom the request for investigation was made (or if he is no longer a member of that House, to such member of that House as the Commissioner thinks appropriate) a report of the results of the investigation or, as the case may be, a statement of his reasons for not conducting an investigation.
(2) In any case where the Commissioner conducts an investigation under this Act, he shall also send a report of the results of the investigation to the principal officer of the department or authority concerned and to any other person who is alleged in the relevant complaint to have taken or authorised the action complained of.
(3) If, after conducting an investigation under this Act, it appears to the Commissioner that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been, or will not be, remedied, he may, if he thinks fit, lay before each House of Parliament a special report upon the case.
(4) The Commissioner shall annually lay before each House of Parliament a general report on the performance of his functions under this Act and may from time to time lay before each House of Parliament such other reports with respect to those functions as he thinks fit."
Shortly after the Act came into force, we are told, a Select Committee was appointed specifically with regard to the PCA, to examine his reports and consider any matters in connection with them.
As to his wider proposition - that this Court has literally no right to review the PCA's exercise of his discretion under the 1967 Act (not even, to give the classic illustration, if he refused to investigate complaints by red- headed complainants) - Mr. Richards submits that the legislation is enacted in such terms as to indicate an intention that the PCA should be answerable to Parliament alone for the way he performs his functions. The PCA is, he suggests, an officer of the House of Commons, and, the argument runs, the Parliamentary control provided for by the statute displaces any supervisory control by the Courts. Mr. Richards relies in particular on these considerations: first, the stipulation under section 5 that a complaint must be referred to the PCA by a member of Parliament before ever his powers of investigation are engaged; second, the requirement under section 10(1) to report back to the member of Parliament (and, in certain circumstances, to each House of Parliament - see section 10(3)); third, the requirement under section 10(4) annually to lay a general report before Parliament; fourth, the provision under section 1(3) of the Act for the PCA's removal from office only in the event of Addresses from both Houses of Parliament. Mr. Richards points also to the PCA being always answerable to the Select Committee.
Despite these considerations I, for my part, would unhesitatingly reject this argument. Many in government are answerable to Parliament and yet answerable also to the supervisory jurisdiction of this Court. I see nothing about the PCA's role or the statutory framework within which he operates so singular as to take him wholly outside the purview of judicial review.
I turn next, therefore, to Mr. Richards' alternative and narrower submission that, by analogy with the two House of Lords' cases already mentioned, the Courts should regard their powers as restricted with regard to reviewing the PCA's exercise of the discretions conferred upon him by this legislation.
I need cite one passage only from the speeches in those two cases, this from Lord Bridge's speech in Ex parte Hammersmith & Fulham LBC :
"The restriction which the Nottinghamshire case (1986) AC 240 imposes on the scope of judicial review operates only when the court has first determined that the ministerial action in question does not contravene the requirements of the statute, whether express or implied, and only then declares that, since the statute has conferred a power on the Secretary of State which involves the formulation and the implementation of national economic policy and which can only take effect with the approval of the House of Commons, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and the implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take and it is in the political forum of the House of Commons that they are properly to be debated and approved or disapproved on their merits. If the decisions have been taken in good faith within the four corners of the Act, the merits of the policy underlying the decisions are not susceptible to review by the courts and the courts would be exceeding their proper function if they presumed to condemn the policy as unreasonable."
Mr. Richards concedes that the analogy between the position considered there and that arising here is not a very close one. He submits, however, that the underlying rationale for restricting the scope of judicial review in those cases applies also here. Although, as Counsel recognises, the PCA's functions are manifestly not political, nevertheless, he submits, the provisions here for Parliamentary control afford this case a comparable dimension.
This submission too I would reject. There seems to me no parallel whatever between on the one hand decisions regarding the formulation and implementation of national economic policy - decisions "depending essentially on political judgment.....for politicians to take......in the political forum of the House of Commons" - and on the other hand, decisions of the PCA regarding the matters appropriate for investigation and the proper manner of their investigation.
All that said, however, and despite my rejection of both Mr. Richards' submissions on the question of jurisdiction, it does not follow that this Court will readily be persuaded to interfere with the exercise of the PCA's discretion. Quite the contrary. The intended width of these discretions is made strikingly clear by the legislature: under section 5(5), when determining whether to initiate, continue or discontinue an investigation, the Commissioner shall "act in accordance with his own discretion"; under section 7(2), "the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case". Bearing in mind too that the exercise of these particular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness.
Recognising this, indeed, one may pause to wonder whether in reality the end result is much different from that arrived at by the House of Lords in the two cases referred to, where the decisions in question were held "not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity". True, in the present case "manifest absurdity" does not have to be shown; but inevitably it will be almost as difficult to demonstrate that the PCA has exercised one or other of his discretions unreasonably in the public law sense.
Before passing from this part of the case I should mention briefly two authorities with regard to the exercise of the Courts' review jurisdiction over Local Commissioners' Reports - R v Commissioner for Local Administration ex parte Eastleigh BC (1988) QB 855 and R v Commissioner for Local Administration ex parte Croydon LBC (1989) 1 AER 1033. Only in ex parte Eastleigh BC was the jurisdictional issue raised, Lord Donaldson, MR, stating: "Let me start with the fact that Parliament has not created a right of appeal against the findings in a Local Commissioner's Report. It is this very fact, coupled with the public law character of the Ombudsman's office and powers which is the foundation of the right to relief by way of judicial review".
Mr. Richards accepts that the scheme, and indeed language, of the Local Government Act 1974 which created Local Commissioners is very similar to that of the 1967 Act (on which it was clearly based), but he draws our attention to certain particular differences which he suggests are possibly material, and he submits that merely because Local Commissioners have been held reviewable by the Courts it does not follow that Parliament intended the PCA's powers under the original legislation to be reviewable. For my part I find it unnecessary to consider this submission in any depth. For this reason: both these Local Commissioner cases appear to have been concerned not with reviewing the exercise of the Local Commissioner's discretion but rather with the examination of his powers; what was being alleged was that he had contravened the requirements of the statute. There can surely be no possible question but that the Court's supervisory jurisdiction exists for this purpose and, indeed, Mr. Richards has not submitted to the contrary. To my mind, therefore, these Local Commissioner cases do not advance the argument one way or the other with respect to the Court's jurisdiction to review the exercise of the PCA's discretionary powers. But of course it follows from my already expressed conclusion upon that point that I would regard the exercise of the Local Commissioner's discretion as reviewable too. Again, however, only with inevitable difficulty. As Lord Donaldson said in ex parte Eastleigh: ".....I am very far from encouraging Councils to seek judicial review of an Ombudsman's report which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed.....". Both those cases were, of course, concerned with judicial review applications by local authorities against whom the Local Commissioner had reported adversely. Certainly no greater encouragement should be afforded to those whose complaints the Commissioner has investigated; their prospects of success are clearly no higher.
Recognising the full width of our jurisdiction but with those considerations in mind I turn to Miss Dyer's grounds of challenge.
As to her contention that the PCA investigated some only of her original grounds of complaint, that is undoubtedly the case. But is she entitled to criticise the PCA for taking that course? More particularly, was the PCA acting outside the proper ambit of his discretion under section 5(5) in doing so?
The following two passages in his report are relevant: first this from paragraph 14:
"In her letter of complaint (Miss Dyer) gave examples of what she considered maladministration by the local and regional offices. I decided to investigate six main aspects - i. an inaccurate letter, ii. an unnecessary appeal, iii. the withdrawal of her benefit without a decision, iv. the failure to issue decisions, v. inaccurate information and vi.unanswered correspondence."
And from paragraph 17 this:
"The papers supplied to me by both Miss Dyer and the DSS contained much correspondence, minutes, notes of interviews and notes of telephone conversations. I have not found it either necessary or expedient to set them all out in detail in my report; but they have all been scrutinised and taken into account in reaching these findings. It is clear that Miss Dyer received a very poor service from the local office. There were problems in the handling of her correspondence, which was often unanswered, in making, or purporting to make, decisions on her claims and in the general relationship between the local office and Miss Dyer. I do not propose to address each and every shortcoming in the local office's conduct of the case but the following are my findings on the six main elements of her complaint."
He then set out his findings in some considerable detail.
In my judgment, the PCA was entitled in the exercise of his discretion to limit the scope of his investigation, to be selective as to just which of Miss Dyer's many detailed complaints he addressed, to identify certain broad categories of complaint (the six main aspects as he called them) and investigate only those. Inevitably such an approach carried the risk that some of the problems which Miss Dyer complained of having experienced with the local office would continue, and that indeed is what Miss Dyer says has occurred. But no investigation should be expected to solve all problems for all time and it cannot in my judgment be said that the approach adopted here by the PCA was not one properly open to him.
Turning to Miss Dyer's complaint that the draft report was sent to the Department for comment on the facts but not to her, the respondent's evidence indicates that this is a practice which has existed for 25 years, and is known to and acquiesced in by the Select Committee. The reasons for it are explained as follows. First, that it is the Department rather than the complainant who may subsequently be called upon to justify its actions before the Select Committee and, if it is shown the draft report and does not point out any inaccuracy, it will then be unable to dispute the facts stated in it. Second, the practice affords the Department an opportunity to give notice in writing to the PCA, as expressly provided for by section 11(3) of the 1967 Act, of any document or information the disclosure of which, in the opinion of the relevant Minister, would be prejudicial to the safety of the State or otherwise contrary to the public interest. Third, sight of the draft report gives the Department the opportunity to propose the remedy it is prepared to offer in the light of any findings of maladministration and injustice contained in it. The Commissioner can then include in his final report what that proposed remedy is and indicate whether he finds that it satisfactorily meets the need.
Miss Dyer recognises, I think, that the same reasons do not exist for sending the draft report to her. Indeed, having regard to section 11(3), it could not be sent to her unless and until it had already been cleared by the Department. Therefore, to graft on to the existing practice a need to show the draft report to complainants too would introduce a further stage into the process. Does natural justice require this?
I do not think so. As Lord Bridge said in Lloyd v McMahon (1987) 1 AC 625 at 702:
"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."
Assuming, as I do, and indeed as Mr. Richards concedes, that the PCA makes "a decision which will affect the rights of" Miss Dyer, it should nevertheless be borne in mind that it is the Department and not her who is being investigated and who is liable to face public criticism for its acts. I cannot conclude that fairness here demanded that she too be shown the draft report. Rather it seems to me that the PCA, in determining the procedure for conducting his investigation as provided for by section 7(2), was amply entitled to consider it appropriate to follow his long established practice.
I come finally to Miss Dyer's complaint about the PCA's refusal to re-open this investigation. This I can deal with altogether more shortly. It seems to me that the PCA is clearly correct in his view that, once his report had been sent to Mr. Hattersley and the DSS (as required by section 10(1) and (2)) he was functus officio and unable to re-open the investigation without a further referral under section 5(1). Section 5(5), as already indicated, confers a wide discretion indeed; it does not, however, purport to empower the PCA to re-open an investigation once his report is submitted. It would seem to me unfair to the Department and outside the scheme of this legislation to suppose that the PCA could do as Miss Dyer wished.
That apart, however, it is plain that even if the PCA had had the power to re-open his investigation he would inevitably have refused to do so: he had long since decided not to investigate Miss Dyer's further complaints and I have already held that he was entitled to limit his investigations in that way.
It follows that in my judgment none of Miss Dyer's grounds of challenge can be made good and this application accordingly fails.
I would not wish to end this judgment without expressing my appreciation to Miss Dyer for the skill, courtesy and moderation with which she has presented her case. She will, I have no doubt, be disappointed at its result. She must certainly not suppose, however, that her own powers of advocacy have in any way let her down. On the contrary, we are indebted to her for her great assistance. MR JUSTICE BUCKLEY: I agree.
MR RICHARDS: My Lord, I would invite your Lordships to make no order as to costs.
LORD JUSTICE SIMON BROWN: That is right. I think we discussed this the last time around, and Mr Richards intimated that he would not be seeking any Order for costs in the event of his succeeding upon the matter. The application is dismissed and there is no Order as to costs.
