England and Wales High Court (Administrative Court) Decisions

1. Mr and Mrs Balchin ask in these proceedings for the quashing of an adverse decision of the Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) on their complaint of maladministration, and for its remission for proper consideration. Their complaint has been that the Secretary of State for Transport was guilty of maladministration in confirming Road Orders without seeking an assurance from Norfolk County Council that the Balchins would be given adequate compensation for the effect of the road on their home. The essence of the critique of the Commissioner's report advanced before me by Mr Charles George QC is that it has failed to engage with a key issue revealed by the investigation and capable of founding a finding of maladministration, has posed the wrong question in coming to a conclusion as to whether there was maladministration, and has reached a conclusion which is unsustainable in the face of the facts found by the Commissioner himself.

2. Since, for reasons to which I will come, everything turns upon the content of the Commissioner's report, it is appropriate to set it out in full. To do so will also relieve me of the need to set out the history, apart from one or two further particulars, for the history is admirably summarised in the report.

3. Kenneth Beavis, Solicitors

4. Parliamentary Commissioner

5. I have highlighted in bold type those passages to which particular attention needs to be directed in order to consider Mr George's critique. It is also relevant to set out two paragraphs of the letter of 16th July 1992 from the chief executive of Norfolk County Council to the Minister for Roads and Traffic at the Department of Transport, to which the Commissioner refers in paragraph 16 of his decision:

6. Having said that, I therefore consider the request that the County Council ".....consider sympathetically....." the impact on Swan's Harbour and Cooper Beech Cottage to be misleading and out of place in such a decision letter. The County Council does not have legal duties to buy up houses on a "sympathy" basis even it if may have the power. |I do not wish to sound harsh or bureaucratic but local government is frequently told to act within its powers and to curtail unnecessary expenditure and it has, as a corporate legal body, to act within those powers. Like Government we face legal challenge in the Courts, or challenge from our internal or external auditors if we do not.'

7. Nobody disputes that Mr and Mrs Balchin have been innocent victims of the road scheme. For reasons to which the Commissioner refers in paragraphs 8 and 9 of his report, Mr Balchin has been ruined. To the irony that it was only the severance of their property in 1984 from a larger parcel which was purchased for the road scheme that left the Balchins without compensation there has now been added the final blow: the road scheme has been abandoned with the revocation by Norfolk County Council of planning consent for it.

8. The Parliamentary Commissioner for Administration

9. The powers and functions of the Commissioner are established by the Parliamentary Commissioner Act 1967. They are subject to the supervisory jurisdiction of this court, notwithstanding that the Commissioner, who occupies a unique constitutional place, is answerable to Parliament ( R v Parliamentary Commissioner for Administration ex parte Dyer [1994] 1 WLR 621 DC). His functions are essentially those described in section 5(1) of the 1967 Act:

10. Between the two sub-sections are set out various exclusions not material to the present case.

11. The Commissioner is required by section 10 to report back to the MP through whom the complaint has come and to the material department or authority. In addition, by 10(3):

12. The provision added to section 12 (the interpretation section) by sub-section (3) - 'it is hereby declared that nothing in this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a Government department or other authority in the exercise of a discretion vested in that department or authority' - is a recital of the obvious, explained by the footnote in de Smith (op cit infra, citing in turn the Crossman Diaries) that it was inserted at the insistence of the Treasury.

13. The meaning of maladministration, both in this Act and in the Local Government Act 1974 (which set up the parallel Local Commissioner) has been considered by the Court of Appeal in R v Local Commissioner for Administration for the North and East area of England, ex parte Bradford Metropolitan City Council [1979] QB 287. Both the Court of Appeal (Sir David Cairns dubitante) and the textbooks on public law have drawn upon the 'Crossman catalogue' offered to Parliament during the passage of the 1967 Act by the then Lord President of the Council. It is accordingly accepted that maladministration includes bias, neglect, inattention, delay, incompetence, inaptitude [1], perversity, turpitude and arbitrariness in reaching a decision or exercising a discretion, but that it has nothing to do with the intrinsic merits of the decision itself: see R v Commissioner for Local Administration ex parte Eastleigh Borough Council [1988] QB 853, 863.

14. Mr George and Mr Elvin, whose collective experience in this field is considerable, did not differ from my proposition in argument that so far as a court of judicial review is concerned the question is not how maladministration should be defined but only whether the Commissioner's decision is within the range of meaning which the English language and the statutory purpose together make possible. For the rest, the question whether any given set of facts amounts to maladministration - or by parity of reasoning, to injustice - is for the Commissioner alone.

15. Less judicial attention has been devoted so far to the meaning of 'injustice' in the legislation, but de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th edition) write at paragraph 1-102:

16. It follows that the defence familiar in legal proceedings, that because the outcome would have been the same in any event there has been no redressible wrong, does not run in an investigation by the Commissioner.

17. In addition, the Commissioner is an investigative officer, not an adjudicative tribunal. As the Divisional Court held in ex parte Dyer (ante), section 5(5) of the 1967 Act gives him a wide area of choice as to the manner in which he investigates. But this discretion, too, will be constrained by the limits set by public law.

18. The Planning Framework

19. There are powers of compensation for depreciation caused by the use of public works under the Land Compensation Act 1973, Part I, but it is common ground that they were of no assistance in the present case since claims are deferred until a year after the highway is first opened to traffic.

20. The relevant provisions, which are more extensive than those summarised in paragraph 3 of the Commissioner's decision, are to be found in section 246 of the Highways Act 1980 as amended by (inter alia) section 62 of the Planning and Compensation Act 1991:

21. A significant depreciation of value comes within the expression 'seriously affected' in section 246(2A) ( R v Secretary of State for Transport, ex parte Owen [1995] 2 EGLR 213, CA).

22. The definitions of 'qualifying interest' and 'blighted land' which follow apply, it is agreed, to the Balchins and to Swan's Harbour respectively. It was sub-section (2A) which was added and came into effect between the Inspector's report and the Secretary of State's confirmation of his recommendation. The new provision was accompanied by a circular, 15/91, from the Department of the Environment, which in an annex on the 1991 Act said:

23. The Department of Transport itself in January 1992 issued a press notice drawing attention to the enacted power and signalling central government's own intention to use it to alleviate hardship caused by trunk road schemes.

24. The challenge to the Commissioner

25. Mr George formulates his challenge under three heads.

26. The first and third of these challenges, in my judgment, cannot succeed. It is not in my view a fair reading of the decision to take the second sentence of paragraph 26 ('However there is no evidence that [the want of redress] is due to a failure by the Department to meet their legal obligations') and treat it as exhaustive of the tests applied by the Commissioner. The whole of his findings, from paragraph 22 onward, have to be taken together, and these include a consideration of far more than the legal obligations of the Department. In particular they include the question, to which I shall come separately, of the possible linking of confirmation by the Secretary of State to a decision by the county council on compensation, which raised both legal and extra-legal issues.

27. Nor do I consider that the challenge to the tenability of the conclusions in the light of the evidence and findings can succeed. Mr George does not have to demonstrate, as respondents sometimes suggest is the case, a decision so bizarre that its author must be regarded as temporarily unhinged. What the not very apposite term 'irrationality' generally means in this branch of the law is a decision which does not add up - in which, in other words, there is a error of reasoning which robs the decision of logic. The present decision is not in this class. The facts set out in the Commissioner's report are logically capable of sustaining his findings and hence his conclusion. The real issue is thus Mr George's second one, to which I now turn.

28. The Commissioner's decision

29. Mr George's argument depends upon passages which I have highlighted in paragraphs 9, 18, 19, 23 and 25 of the Commissioner's report. In brief, the Commissioner has concluded

30. I accept Mr Elvin's submission that it would have been - or more accurately that the Commissioner was entitled to accept the Department's view that it would have been - an unacceptable use of the Secretary of State's powers to make his confirmation conditional on the county council's deciding to exercise its discretionary power of purchase in a particular way, whether the condition was explicit or only hinted at. But Mr George points to other possibilities open to but not considered by the Department. Of those which do not involve some element of conditionality, the most straightforward was to draw the county council's attention in clear terms to its new power under s.246(2A) and to the Department of the Environment's advice about the use of the power.

31. This the Commissioner in paragraph 25 implicitly accepts. He also rejects the Department's excuse that it judged such advice to be inappropriate. He finds the truth to be that the existence of the power was simply overlooked. But he then notes what happened when the Balchins' bank did exactly what the Department had failed to do and drew Norfolk's attention to its new power: the county council treated rejection as a foregone conclusion in the light of its earlier refusal to exercise a related but different power. This, the Commissioner infers, would have been the inevitable outcome had the Department drawn the county council's attention to the new power.

32. This is not an inference which, speaking for myself, I find convincing. Although the Commissioner has no jurisdiction in relation to local government, Norfolk's response was on the face of it highly questionable. Although the county council was duly served it has understandably taken no part in these proceedings, and I hesitate to criticise it in its absence; but the intransigence of its stance towards the Balchins will have been as apparent to the Commissioner as it is to this court. In 1990, when it first declined to acquire Swan's Harbour, the Planning and Transportation Committee must have been considering the power contained in s.246(1). When at the end of 1992 the Balchins' bank finally drew the council's attention to its new s.246(2A) power, the council appears to have given no consideration to its exercise; instead it seems to have treated the question as having been effectively foreclosed by its decision not to purchase in 1990. Yet the question in 1992 revolved around a new power which the council had never entertained; and the decision in 1990, assuming it now had any bearing (which I doubt) had been based upon a reason which, if it were admissible, would justify all public bodies in refusing ever to exercise a discretion to make a payment for fear that other applicants would want to be similarly treated - a textbook example of a fettered discretion. In any case the Inspector had singled out Swan's Harbour as one of two properties facing a 'particularly adverse effect' from the planned road.

33. Further, the Department of Transport is not a high street bank, and the effect of a reminder from it of the council's legal functions (for every power implies a duty to consider its exercise) and of the DoE's advisory circular is hardly to be put on a par with an inquiry from a concerned creditor. It would in my view have been open to the Commissioner to conclude that Norfolk's 'No' was in the circumstances not an acceptable answer and that the Department of Transport, had it given any attention to S.246(A) and to Norfolk's attitude to it in the Balchins' case, might well have been able at least to prompt the council to give proper consideration to the exercise of its new power - with what result, of course, nobody could now say.

34. The Commissioner has chosen not to go down this road. He has regarded it as blocked by Norfolk's negative stance and has consequently not reached the question, which would have been at large before him, whether the Department's omission amounted to maladministration and, if so, whether the Balchins had suffered injustice in consequence. Is his decision based on a reviewable error?

35. If there is such an error, I accept Mr George's submission that it does not have to be classified as one of law or of fact (the latter too being reviewable if crucial to the decision: see R v London Residuary Body, ex parte ILEA (3rd July 1987, transcript pp.3 - 6, DC)) and that the relevant test here is whether a consideration has been omitted which, had account been taken of it, might have caused the decision-maker to reach a different conclusion (see Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343, 353, per Glidewell LJ). To this must of course be added the condition that the consideration is one to which the law requires the decision-maker to have regard. In the present case the latter condition is met by the simple fact that the consideration which I have posed is squarely presented by the very facts established by the Commissioner's own thorough investigation. As an investigator he is not limited to the strict terms of the issue posed by the complaint.

36. The question then is whether he has overlooked this aspect of the case. If he has not done so, the fact that his view of its significance differs from mine (as I do not conceal that it does) is of no legal consequence and his decision will be unimpeachable.

37. I return therefore to the crucial finding in paragraph 25:

38. The reasoning starts from the fallback submission of the Department that even if they had thought about s.246(2A) and - by implication - drawn it to Norfolk's attention, Norfolk would have persisted in its negative attitude. This, the Commissioner says, 'I do not question', meaning that he either adopts this view or at least is not prepared to differ from it.

39. Whether the Commissioner's conclusion ('I have not found the complaint against the Department of Transport to be made out') reflects a finding that there was therefore no maladministration or no injustice, one cannot know - although it is likely to be the latter, given his findings of fact. But one does know from paragraph 26 that he has consciously omitted, in reaching his conclusion, to evaluate the role and impact of Norfolk County Council's stance:

40. I have hesitated long before concluding that, notwithstanding the very wide area of judgment and discretion given to the Commissioner by the Act, he has been led by a scrupulous regard for his jurisdictional remit, excluding as it does local government, into a failure to consider the relevant fact of Norfolk's attitude - not with a view to deciding whether it was unlawful or even (to use his own neologism) maladminstrative but in order to decide, as his own findings made it necessary for him to do, whether the Department of Transport ought in response to have drawn the council's attention to its new power to acquire blighted property and perhaps also to its obligation to consider exercising it. In other words, once Norfolk's apparent disregard of its obligations was established by him, the Commissioner could not properly avoid the question whether correct advice with the imprimatur of central government might have made a difference.

41. Whether the Department's undoubted failure to tender such advice amounted to maladministration and whether, if it did, it caused injustice to the Balchins remains entirely a question for the Commissioner. My decision is limited to holding that in declining to consider the ostensible propriety of Norfolk County Council's negative attitude to its compensatory powers and its amenability to correction by the Department, the Commissioner omitted a potentially decisive element from his consideration of whether the Department of Transport had caused injustice to the Balchins by maladministration in its dealings with the county council.

42. Counsel agreed at the conclusion of argument that this judgment should be handed down in writing, including any proposed consequential orders, with liberty to apply within 14 days if different orders are sought.

43. I do not consider that certiorari is necessary if the Commissioner will undertake to reconsider his decision in the light of this judgment. If, however, it is considered that he is functus officio, certiorari must go, with the result that the complaint will remain to be entertained; mandamus will then be unnecessary.

44. I would allow the applicants their costs and (if they have legal aid) a legal aid taxation.

45. The Commissioner may, if he seeks it, have leave to appeal.

46. MR JUSTICE SEDLEY: For reasons which have been set out in writing, communicated to the parties and which are now available for the Press and the public, this application for judicial review succeeds.

47. Mr Payton, you are here for the Applicant?

48. MR JUSTICE SEDLEY: The Respondent is not represented today.

49. MR PAYTON: What I am about to tell your Lordship I left in the form a message for my learned friend, Mr Elvin, last evening. He has not been able to speak to me direct and I gather that he is otherwise engaged today, but I do not think there is a great problem. I have left with the learned Associate a copy of a letter written by the Treasury Solicitor and it relates to the last paragraph of page 24 of your Lordship's judgment.

50. MR JUSTICE SEDLEY: Let me just read out the communication for the record. The Treasury Solicitor writes to those instructing you that the Parliamentary Commissioner has written to her as follows:

51. That is dated 26th March 1996. It is old history.

52. MR PAYTON: My Lord, that arose because of matters that came up after the investigation but, without trespassing on matters of privilege, I can tell your Lordship that Mr Michael Lord, MP, did invite the Ombudsman to reconsider.

53. MR JUSTICE SEDLEY: Mr Payton, I am sorry. I thought you were going tell me that Mr Elvin had communicated to you that he was content with one outcome rather than another today. He obviously has not done so. I am certainly not going to traverse this ground in his absence.

54. The idea of handing down judgments like this is, in principle, to avoid unnecessary costs of attendance. The only purpose of attendance today in this case would have been for Mr Elvin, who is the only person not here, to tell me whether his client would consent to reconsider the case or whether, being functus officio , he considers that he has no power to do so without an Order of certiorari.

55. MR PAYTON: I can do no more, my Lord, than to anticipate that the point may arise.

56. MR JUSTICE SEDLEY: If the Commissioner considers that he is able to undertake to reconsider, are you content with the undertaking? Do you press for certiorari in those circumstances?

57. MR PAYTON: No, my Lord, subject to seeing the terms.

58. MR JUSTICE SEDLEY: In that case it seems to me that the proper course is for me to say that certiorari will go unless within 14 days the Commissioner, on consideration, feels it appropriate to offer an undertaking to reconsider the case.

59. MR PAYTON: My Lord, that is most helpful.

60. MR JUSTICE SEDLEY: If such an undertaking is communicated to this court and to those instructing you, providing it satisfactory to them, then I shall make no Order.

61. MR PAYTON: We shall lodge your note of concern.

62. MR PAYTON: I do not apply. Your Lordship has given leave to appeal if requested?

63. MR JUSTICE SEDLEY: Yes, very well. In that case the Commissioner must also, within the same 14 days, communicate to the Crown Office whether he does seek leave to appeal. If he does, the outcome is already provided for.

64. MR PAYTON: I am grateful to your Lordship.