CO/2900/2003 
Neutral Citation Number: [2003] EWHC 3202 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 24 November 2003
 
B E F O R E:

MR JUSTICE BEATSON 

- - - - - - -
THE QUEEN ON THE APPLICATION OF SCHOLARSTICA UMO
(CLAIMANT)

-v- 

COMMISSIONER FOR LOCAL ADMINISTRATION IN ENGLAND
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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 - - - - - - -
MR C RAWLINGS (instructed by Alison Trent Co of London) appeared on behalf of the CLAIMANT
MR B ASH QC (instructed by Mayer Brown Rowe Maw of London) appeared on behalf of the DEFENDANT
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J U D G M E N T 

1.	MR JUSTICE BEATSON:  In these proceedings the claimant challenges the defendant commissioner's decision dated 24 March 2003 confirming its provisional decision of 17 February 2003 not to investigate the claimant's complaint of maladministration against the interested party, Enfield London Borough Council, arising out of the latter's erroneous decision of April and   July 2000 that the claimant was entitled to home student status and therefore a student loan.  Permission was given by His Honour Judge Wilkie QC on 18 August 2003.  As a result of matters mentioned in the defendant's acknowledgment of service which had been served earlier, there was an amendment to the grounds relied on which, in the event, for reasons I will explain, did not play a part in the hearing.  
2.	The claimant is a student reading pharmacy at De Montfort University.  She began her course in December 2000 and is now in her third year.  She was born in Nigeria and came to the United Kingdom in October 1998.  In December 1999 she was granted indefinite leave to remain in the United Kingdom.  In early 2000 she submitted completed financial assessment forms to the London Borough of Enfield.  She was informed by Enfield in April and July 2000 that she was entitled to home student status.  This information was incorrect.  The true position was that the claimant was not a home student and accordingly was entitled neither to a student loan under the Teaching and Higher Education Act 1998 nor to pay tuition fees limited to the home student level of £1,050 per annum as opposed to the  overseas student level of £7,420 per annum. 
3.	In 2001 she brought judicial review proceedings against both the university and the London Borough of Enfield.  The claim against the university was discontinued after the university, without admitting liability, consented to allow her to pay tuition fees at the home student rate.  In respect of the challenge to Enfield's decision of 17 April 2001 not to make any further student loan payments to the claimant, Mr Justice Stanley Burnton refused permission to apply for judicial review on the papers and the application was not renewed.
4.	The claimant then made various written complaints through Enfield's three-stage complaints procedure.  She was ultimately offered £500 compensation but was not satisfied with this.  She claims that apart from the confusion, stress inconvenience and distraction to her studies she is in a precarious financial position.  She does not have a student loan to which she was told she was entitled, and other sources of finance are more expensive.  Had she known of her non- entitlement she would have continued working until she was eligible for home student status, raised money to attend university and thus been in a significantly better financial position.  On her behalf Mr Rawlings submits that the injustice or adverse effects of the April 2000 maladministration are obvious.  After the offer from Enfield the claimant's solicitors wrote to the commissioner on 7 February 2003.  As I have stated, the complaint was provisionally rejected by letter dated 17 February and was then confirmed on 24th March.  The rejection was on the ground that the administrative action complained of had already been the subject of judicial review proceedings.  
5.	The relevant statutory provision is Section 26 of the Local Government Act 1974.  This states in part: 
"(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."
6.	There are two issues before me.  The first is whether the local ombudsman has jurisdiction in the light of the earlier judicial review proceedings and the decision of the court   in R v Commissioner for Local Administration, ex p PH [1999] EWCA Civ 916.  This is the jurisdiction point.  Secondly, should the local ombudsman have agreed to undertake an investigation under the proviso to Section 26.  This is the proviso point.
7.	The claimant's case is that any maladministration with regard to the mistaken April 2000 decision that the claimant was a home student has not been the subject of judicial review and that the claimant has not had a remedy by way of proceedings in any court of law.  Mr Rawlings submits that decision was not susceptible to judicial review for two reasons.  First, the claimant accepted that it was erroneous.  Secondly, what she wanted was an investigation of the factual context of the decision in 2000 - what had happened then.  It was not appropriate to bring a claim based on a dispute as to facts to a judicial review tribunal in the Administrative Court.  He also submits that, in any event, the local ombudsman should have exercised his discretion under the proviso to Section 26 to investigate.  Reliance was placed on the recent decision of the Court of Appeal in Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 in which the court considered that where the costs of judicial review were out of proportion to the damages that might be recovered in a claim for maladministration under the Human Rights Act it was for a claimant to explain why it would not be more appropriate to use internal complaint procedures or a claim to the Parliamentary Commission or local ombudsman in the first instance.  The court in that case thus invited recourse to the local government ombudsman first as an appropriate remedy.  It was submitted that, similarly, here, for reasons of expedition and cost, such a remedy would be more appropriate than judicial review. 
8.	On behalf of the Commissioner Mr Ash submits that in this case there was a potential remedy available to the claimant and therefore Section 26 (6) (c) was engaged and,  subject to the proviso, there was no jurisdiction to investigate.  He relied on the decision of R (Theophilus) v Lewisham London Borough Council [2003] EWHC 1371 in which, on similar facts, a claim was successfully brought, ultimately in reliance on the Local Government Act 2000, Section 2, but not originally launched on that basis.
9.	Secondly, Mr Ash submits that where a complainant has in fact resorted to such a remedy the local ombudsman has no power to investigate under the proviso.  That submission stems from the wording of the proviso which gives a discretion to a local commissioner to conduct an investigation, notwithstanding the existence of such a right or remedy, "if satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort or to have resorted to it".  It is said that where there has in fact been resort to such a remedy the proviso is not engaged.  Reliance in support of these submissions is placed in particular on the decision in R v Commission for Local Administration, ex p PH, a decision of Turner J given on 21 December 1998, and the decision of Keene J, as he then was, in R v Commissioner for Local Administration, ex p Field, [2000] COD 58.
10.	Thirdly, Mr Ash submits that Anufrijeva is not relevant here because this is not a case in which damages are being sought for maladministration under the Human Rights Act.  In any event, the only relevance of the principle in that case would be in relation to a potential exercise of discretion under the proviso if the claimant had not first gone to the court in the earlier judicial review proceedings.  As far as the general approach of the courts is concerned, Mr Ash relied on the well-known decision in R v Local Government for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council [1979] QB 287 in which Lord Denning MR stated at page 310:
"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 [1989] 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.'"
11.	At page 1044 His Lordship stated:
" ..... 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."
12.	I turn to my conclusions on the submissions.  First, there was a potential remedy either as a matter of common law legitimate expectation (see R v North and East Devon Health Authority, ex p Coughlan [2001] 1 QB 213), or under Section 2 of the Local Government Act 2000 which was in force at the time of the earlier judicial review procedures.  Accordingly Section 26(6)(c) was engaged.  Secondly, the council's original decision of April 2000 was not merely part of the history in the earlier judicial review proceedings.  Although  formally what was being challenged in that claim was the decision to withdraw the student loan, the earlier decision was central to it.  The council's original decision is mentioned throughout the grounds of the present claim.  In particular paragraph 9 states that the challenge to the April 2001 decision "sought to prevent Enfield from resiling from their April 2000 decision".  The earlier action had sought an order quashing the decision of the council "to resile from its assessments made or alternatively representations of 11 April 2000 and 26 July 2000 that the claimant was eligible for financial support". 
13.	There are also many references in the grounds in support of the earlier judicial review to the April 2000 decision.  On page 30 at paragraph 16 it is stated that the earlier decision was the subject matter of those proceedings -
" ..... 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.
14.	Third, the mere fact that certain factual issues in the council's process in making the April 2000 decision are not easily amenable to judicial review is not enough to take the matter out of section 26(6(c) and to give the local ombudsman jurisdiction to investigate.  In R v Commissioner for Local Administration, ex p Field, to which I have referred, the complainant had successfully applied to the Secretary of State for the Environment against a refusal of planning permission by the local planning authority.  There had been two planning applications in the latter part of 1984.  Both were refused.  On appeal, the Secretary of State granted permission but his decision was quashed by the High Court.  On remission back to the Secretary of State he confirmed his decision.  A complaint was then submitted to the commissioner alleging maladministration by the local planning authority  in relation to the delay in securing the permission since the confirmation came some 18 months after the first application.  The commissioner declined to investigate on the grounds that he had no jurisdiction to do so as a result of the pursuit by the applicant of a right of appeal.  It was argued that the statutory appeal would not provide the relief the victim sought and would not cover matters about which the complaint was made by the commissioner.  Keene J, as he then was, stated that:
"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
permission.'
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).   
15.	Fourth, Mr Ash submitted that under the consent order against the university the claimant in fact received a remedy in respect of a significant part of the claim arising from the April 2000 decision by Enfield that she was a home student.  The value of this was some £25,000 spread over four years.  
16.	Fifth, additionally with regard to the Local Government Act 2000, Section 2, a claim based on this section has now reached the pre-Protocol stage.
17.	Sixth, quite part from the jurisdictional grounds which preclude the commissioner from being able to investigate this, one cannot say that any decision that he made in respect of this claim not to investigate this could be impugned on public law grounds.  With regard to the principles in Anufrijeva regarding the approach to the use of judicial review as opposed to alternative remedies, those  principles are of relevance beyond claims for damages for maladministration under the Human Rights Act.  Therefore they are relevant, as Mr Ash accepted, where the local ombudsman is approached in a situation where there is a potential claim by judicial review as an alternative to investigation by a local ombudsman.  In a case where legal proceedings have in fact been instituted, the wording of the proviso precludes there being discretion in the local ombudsman to proceed thereafter.  Accordingly those advising individuals regarding matters potentially giving rise to both local ombudsman investigations and to judicial review should first seek an investigation by a local ombudsman.  To commence proceedings by judicial review will, as a result of the statutory structure, deprive the ombudsman of jurisdiction thereafter to investigate.
18.	For these reasons I refuse the application for judicial review.
19.	The amended grounds included material relating to whether the claimant had suffered injustice because it appeared at one stage that the ombudsman was going to take the point that investigation was not needed for this reason.  This point was not taken.  Mr Ash stated that this had not been part of the original decision and was not part of the local commissioner's case before me.  The matter was therefore not explored.
20.	MR ASH:  I am obliged.  Your Lordship has indicated that you are going to have a look at the judgment in some detail in terms  of certain of the wording.  I picked up a couple of slight mis-quotations from Mr Justice Keene which I hope your Lordship will look at because it could give rise to some confusion in the future if the transcript is read in due course.
21.	MR JUSTICE BEATSON:  I will look at that carefully.
22.	MR ASH:  I am obliged.  The other matter is the question of costs.  It may prove academic because the claimant is, as I understand it, fully subject to public funding.  But I understand there is the usual form of order.  I cannot say what the current magic formulation is.  In effect, it is a variant on the old order that there should be an order for costs but not to be enforced without permission of the court.    I suspect that what actually happens is that you make an order and it is then for the defendant to take a view as to whether to make the application or not.  To complete -----
23.	MR JUSTICE BEATSON:  I have been handed something.
24.	MR ASH:  The magic formula.
25.	MR JUSTICE BEATSON:  It is basically that - - the determination of the applicant's liability to pay such costs be postponed until further application.
26.	MR ASH:  That seems consistent with the way - - I do not have to hand the magic words.  I cannot ask for more than that.
27.	MR JUSTICE BEATSON:  No.
28.	MR RAWLINGS:  My Lord, that is the proper order as I understand it.  The only point I want to make - in order to protect my client's position should the defendants take the view later on that they would like to enforce this order - is the issue with regard to the amendment and the costs of that amendment.  My submission would be that due to the way the ombudsman pleaded their case in the grounds contesting the decision, and the correspondence subsequently, it compelled the claimant to cover the issue of injustice, if I can put it in those terms, by issuing amended grounds and then as we see from the skeleton argument that was not taken up as an issue  by my friend in the case itself.  
29.	I would therefore ask that the costs occasioned by the amendment are paid by the defendant in any event and that that should be taken into account on any examination should the defendant seek to enforce the order at a later date.
30.	MR JUSTICE BEATSON:  You are not asking for those costs.  You are only asking for those costs if the defendant should seek a costs order against you.
31.	MR RAWLINGS:  Those are my instructions.  I think that would be the proper order; if the defendant sought to seek its costs then the costs of the amendment be taken into account in any event.  They are not being sought as a matter of course.
32.	MR JUSTICE BEATSON:  Yes.
33.	MR ASH:  I could deal with the substantive point if necessary,  but it does seem to me that if there is going to be a further application in relation to this matter then this is a matter that could be set up by the payment of some form of set-off (?) in those proceedings in the application rather than you taking a view about it.  If you were minded to take a view about it I would submit in my skeleton argument what was the relevance of what was said in the acknowledgment of service.  And you will have seen perhaps that in my friend's skeleton argument quite specifically he takes the point, which is quite apparent on the face of the documents, that the commissioner did not purport to decline jurisdiction in this case on the basis of any failure to establish injustice in advance.  That was a point which was so apparent to my friend and his advisers that it featured in his skeleton argument.  
34.	I would resist any suggestion that in any way the claimant was misled and forced into some unnecessary expenditure.  In many ways this matter could have been dealt with by a simple inquiry in correspondence rather than going through the process of seeking an amendment which was not resisted in any event.
35.	MR JUSTICE BEATSON:  I am going to make the standard order postponing determination pending such further application which can include the determination of the issues as to costs occasioned by the amendment.
36.	MR RAWLINGS:  So be it.
37.	MR JUSTICE BEATSON:  In which case the defendant is entitled to its costs but the determination of the payment of such costs be postponed pending further application, such further application to include any issue as to costs occasioned from the amended grounds for relief. 
38.	MR RAWLINGS:  May I have detailed assessment for the claimant's costs?
39.	MR JUSTICE BEATSON:  Yes.  You may have detailed assessment of defendant's costs.
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