QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SCHOLARSTICA UMO||(CLAIMANT)|
|COMMISSIONER FOR LOCAL ADMINISTRATION IN ENGLAND||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR B ASH QC (instructed by Mayer Brown Rowe Maw of London) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(6) A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say, -
(c) any action in respect of which the person has or had a remedy by way of proceedings in any court of law:
provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it was not reasonable to expect the person aggrieved to resort or have resorted to it."
"Parliament was at pains to ensure that the commissioners should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law or of any tribunals. Both the Act of 1967 and the Act of 1974 contain express provisions precluding the commissioner from investigating any matter which had come or might come up for determination by a court of law or a tribunal; except in those cases where it was not reasonable to expect the complainant to resort or to have resorted to it ..... "
He also relied on R v Commissioner for Local Administration, ex p Croydon London Borough Council  1 All ER 1033, in which the Court of Appeal considered Section 26 (6). Woolf LJ, as he then was, stated at page 1038:
"Section 26(6) is important because it indicates the limits that Parliament intended should apply to the jurisdiction of the commissioner subject to his exercising his discretion under the proviso to that subsection. In particular it makes clear that the general rule is that, inter alia, in relation to a complaint in respect of which the parents have or had a remedy in the courts by way of an application for judicial review they should resort to that remedy rather than apply to the commissioner and the commissioner should only exercise his discretion to investigate such a complaint 'in the particular circumstances.'"
" ..... if the complaint was justified the person concerned might be entitled to obtain some form of remedy in respect of the subject matter of the complaint if he had commenced proceedings within the appropriate time limits. The commissioner is not concerned to consider whether in fact the proceedings would succeed. He merely has to be satisfied that the court of law is an appropriate forum for investigating the subject matter of the complaint."
Later, on that page, he stated:
"Section 26(6) makes it clear that where there is a remedy in the sense which I have indicated, inter alia, in a court of law, the courts do not have the sole jurisdiction and the commissioner may still intervene. On the other hand the general tenor of s 26(6) is that, if there is a tribunal (whether it be an appeal tribunal, a minister of the Crown or a court of law) which is specifically designed to deal with the issue, that is the body to whom the complainant should normally resort. I suggest this approach is particularly important in the case of issues which are capable of being resolved on judicial review."
" ..... the present case is of a different nature ..... It concerns a decision, a determination, albeit one that was ..... entered into on an incorrect factual basis."
At paragraph 18 of the grounds it it is stated that:
"The claimant acted to her detriment by commencing her university course on the basis of that [earlier] decision. If Enfield were allowed to resile from that decision now, the claimant would suffer serious detriment ..... "
The claim form sought a declaration that -
" ..... the claimant is and shall continue for the duration of her course to be entitled to receive financial support for higher education pursuant to the assessments by [the council] dated 11/04/2000 and 26/07/2000 ..... "
In the legal analysis section it is stated that the council was bound by the earlier decision and is not entitled to resile from it.
"It seems to me that in those circumstances Parliament must have contemplated that there would arise situations where loss had been suffered and where no remedy for that loss would be provided and yet the Local Government Ombudsman would have no jurisdiction to intervene. I therefore do not find the argument based upon the lack of remedy through the statutory appeal to the Secretary of State persuasive on this particular issue. I agree with the reasoning of Mr Justice Turner in ex parte PH ..... "
He also stated:
"In any event, for my part I find the wording of Section 26(6) of the Local Government Act 1974 tolerably clear when the subsection is read in the context of the section as a whole. I am in no doubt that the maladministration of which Mr Field complains was 'in connection with action taken by or on behalf of an authority', and that action was the refusal of planning permission by the Borough Council. It was the refusal which caused the delay and the alleged loss. That is made plain in the applicant's own grounds set out in Form 86A at paragraph 58. There it is said:
'The 'injustice' complained of by the
applicant is that those matters caused or
contributed to the refusal of the
applicant's applications for planning
permission, which refusals caused delay to
the applicant eventually obtaining planning
Equally, that action is one caught by Section 26(6) (b) because the word 'action' in that paragraph has to be interpreted in the light of the wording of Section 26(1)."
For that reason the mere fact that the factual issues are not ordinarily amenable to judicial review is not enough to take the matter out of Section 26(6)(c).