12.1.2 Tribunals and Ombudsman Lecture
Administrative justice defines the various institutions and procedures that are located within the wide area between government departments and courts of law. Within this region are often diverse struggles between the legal world and the political world. The chapter will consider the various tribunals that have been established to adjudicate various kinds of legal decisions, which have their own procedural regulations and series of precedents. Furthermore, the chapter will examine the operation of public inquiries in which government department have the dominant roles, but which key procedural regulations exist to maintain transparency and accountability. Also, considered in this section will be the Inquiries Act 2005, which was passed to investigate major scandals and disasters that occur within the area of government. Finally, this chapter will cover the role of Ombudsmen. Their role is to investigate individual complaints about acts of governments and public authorities and evaluate whether injustice has occurred within official acts.
Tribunals are statutory bodies which hear and make decisions on appeals by members of the public against first instance decisions made by government bodies. In the area of asylum for example an asylum seeker may appeal against the decision of the Home Office to the Immigration and Asylum Chamber of the First-tier Tribunal. In matters of social security and individual may appeal a decision of the Department of Work and Pensions to the First-tier Tribunal's Social Entitlement Chamber. A tribunal can then determine the appeal of the official decision and substitute its own decision for the initial decision-maker.
Tribunals are of great significance in the current legal system as they are able to provide specialist knowledge of particular areas of public decision making in areas where ordinary courts may not have this specific expertise. Certain tribunal systems exist as legal systems within their own right, with their own procedural rules, form of judiciary, law reports and legal cultures. Tribunals are thus a central facet of the administrative justice system, ensuring the legality of decision making at all levels of government. In areas of mass decision making by governments, such as social security, immigration and education, great volumes of challenges might arise to public decisions. The role of tribunals is thus to establish independent bodies that can review these decisions and ensuring that the state discharge its responsibility with correct decisions.
Tribunals have been created on an ad hoc basis in specialist areas of government with little consideration of the need to establish a 'tribunal system'. Government policy has latterly attempted to provide a coherent structure to these bodies. The Tribunals Courts and Enforcement Act 2007 established a new simplified statutory framework for tribunals. This section will further consider how the implementation of this Act has led to a distinct system of tribunals, which provide the public with an effective means of challenging the decisions of public bodies and the extent to which tribunals comprise a distinct system of administrative justice.
The System of Tribunals
There currently exist a diverse array of tribunals that operated in areas such as social security, health, education, employment, tax, finance, pensions, immigration and asylum, transport and traffic and criminal injuries compensation. Most tribunals are required to adjudicate disputes between state actors and a private individual or company. There are other tribunals, which adjudicated disputes between two sets of private individuals, including disagreements between employers and employee within the employment tribunals. The Employment Appeals Tribunals hears appeals from the employment tribunals. The employment tribunal is governed by the Employments Tribunals Act 1996, which provides that the employment tribunal might hear cases relating to matters such as unfair dismissal, discrimination in the workplace of redundancy compensation payments.
Tribunals are statutory creations and ultimately tools of government policy, hence the makeup and composition of the tribunal system is subject to change dependent upon the present government and the particular policies which the majority political party wishes to implement. As immigration has become an issue of party politics and pressures have increased upon the immigration system, the tribunal system that determines appeals from initial immigration decisions has come under increasing pressure. Pressure on governments to ensure that the immigration appeals tribunal has been able to deal with its large case load have meant several radical reforms within this tribunal structure. The most radical reform of the immigration appeals tribunal system was carried out in 2004 when the tribunal was reformed from the existing two-tier structure. Appeals were initially determined by the Immigration Appellate Authority and then by the Immigration Appeal Tribunal. A single tier system replaced this two-tier approach to speed up the process and reduce the number of second instance appeals. A two-tier system was reintroduced in 2010, when the Immigration and Asylum Chamber of the First tier tribunal now hears initial appeals in asylum or immigration cases. There is a further possibility of appeal to the Immigration and Asylum Chamber of the Upper Tribunal.
Exam Consideration: It is important to gain an appreciation of the current system of tribunals including the First tier Tribunal, the Upper Tribunal and the various avenues of appeal from these bodies. It may be relevant to review the sections on the rule of law and the separation of powers and understand how these apply to the tribunal system.
Tribunals and Judicial Review
Both tribunals and judicial review offer means by which individual can challenge the decisions of government bodies. The distinction between judicial review and the tribunal system in an important one; during the process of judicial review the court can only make a determination on the lawfulness of a government decision, whereas tribunals are able to carry out a merits appeal. The tribunal is thus able to retake the initial decision rather than revert the case back to the original decision maker for a determination on the merits of the case.
The court in judicial review proceedings focus only upon the legality of the administrative decision whereas the tribunal appeal system have jurisdiction to review the factual elements of the case. The jurisdiction of the judicial review decisions is based upon the court's inherent jurisdiction, so it makes decisions based on general legal principles, such as legality, reasonableness and procedural fairness. Tribunals are created by statute and are there jurisdiction depends solely upon that which is afforded to it through the legislation, which created it.
Exam Consideration: It is important to understand the terminology used in this area of administrative justice and appreciate the similarities and differences between the judicial review process and the tribunals system.
The Reorganisation of Tribunals
A major review of tribunals was conducted in 2001 for the first time since the Franks Report of 1957. The Leggatt review was carried out by a retired Court of Appeal judge, Sir Andrew Leggatt, and an expert panel. The review found a total of 70 different tribunals in England and Wales, which between them were disposing of nearly a million cases a year. The report observed that the tribunal system in England and Wales had been established in a haphazard fashion and that there was a lack of systematic integration of its many elements. The Leggatt review proposed a single tribunal system administrated by an integral tribunal service, and be separated into various divisions according to their subject matter. These divisions would be created under nine headings: (a) trade, competition and intellectual property, (b) transport, (c) finance and taxes, (d) health and social care, (e) asylum and immigration, (f) property, land and valuation, (g) employment, (h) education and (i) social security, pensions and criminal injuries compensation. The review also proposed a general second tier tribunal to hear appeals since the existing system created a confusing array of right of appeal from the various first tier tribunals.
The Tribunals, Courts and Enforcement Act 2007 (TCEA) aimed to implement the reforms that had been proposed within the Leggatt review. Part I of the TCEA established two new tribunals of a general nature, with the aim of replacing the majority of first tier tribunals and appellate tribunals. These were the First-tier Tribunals (FTT) which make first instance decisions and the Upper Tribunal to hear appeals from the FTT (s.3 TCEA). The TCEA also created the role of the Senior President of Tribunals, who was to be appointed by the Queen on the advice of the Lord Chancellor (s.2 TCEA).
The Senior President is responsible for the need for tribunals to be accessible, to be fair, quick and efficient and for there to be those working within the tribunals who have specific expertise in the area of law with which the tribunals is responsible (s.2 TCEA). The tribunals are comprised of judges but also of non-legal members who are specifically trained or have relevant experience in the areas in which the tribunal operates, such as in medicine or finance.
The First-tier Tribunal is now organised in a series of chambers, each headed by a judge as president. In September 2013, the First-tier Tribunal was comprised of six divisions:
- the General Regulatory Chamber
- the Social Enforcement Chamber
- the Health, Education and Social Care Chamber
- the War Pensions and Armed Forces Compensation Chamber
- the Tax Chamber
- the Immigration and Asylum Chamber; and
- the Property Chamber
The Upper Tribunal is organised into four divisions:
- The Administrative Appeals Chamber
- The Tax and Chancery Chamber
- the Lands Chamber; and
- the Immigration and Asylum Chamber
The Upper Tribunal hears appeal from more than one chamber of the FTT, although the FTT has power to review its own decisions, which it may or may not refer to the Upper Tribunal. This ability to review their own decisions enables the FTT to deal with cases that are obviously wrong without the need to appeal the decision to the Upper Tribunal. The parties may appeal to the Upper Tribunal on a point of law if leave is given by the FTT. In certain instances the Upper Tribunal is able to carry out a form of judicial review and cases may also be transferred from the Administrative Court to the Upper Tribunal or in the opposite direction (ss 15-21 TCEA). If leave is granted there is also a possibility of appeal from the Upper Tribunal to the Court of Appeal.
Case in FocusR (Cart) v Upper Tribunal  UKSC 28,  1 AC 663 and Eba v Advocate General for Scotland  UKSC 29, 2011 SLT 768
The UK Supreme Court was asked to determine whether if leave to appeal was refused to the First-tier Tribunal and the Upper Tribunal, whether that decision was subject to judicial review. A refusal of a decision to appeal is excluded from a grounds of appeal under ss 11(4) and 13(8) TCEA. The Supreme Court found that a decision of the Upper Tribunal not to grant an appeal was subject to judicial review. However, such appeals would be limited to instances in which there was an important point of principle or practice to be determined by the Court of Appeal, or that there was some compelling reason for the appeal to be heard. As a result of the decision in Cart the Civil Procedure Rules were amended to reflect this test.
Some tribunals remain outside the two-tier scheme created by the TCEA, these include:
- The Investigatory Powers Tribunal, created by the Regulation of Investigatory Powers Act 2000;
- The Proscribed Organisations Appeal Commission, created under the Terrorism Act 2000; and
- The Competition Appeals Tribunal, established under the Enterprise Act 2000
A tribunal system must be established under a statutory authority to be brought within the TCEA system. Private and domestic tribunals must exist outside the scheme, all bodies that hear appeals from local authorities may in future be incorporated within it.
The Administrative Justice and Tribunals Council was also created under the TCEA. The Council had the authority to review the administrative justice system, to review the constitution and working of specified tribunals, to keep the work of statutory inquiries under review. The Council also were required to consider ways in which the system of administrative justice could be made 'accessible fair and efficient' and advise ministers on the development of this system (TCEA, sch 7, para 13(1)). In 2011, the government proposed the abolishment of the Council, a proposal that was strongly criticised in Parliament, however the government carried out their decision to remove the Council on 19 August 2013.
Case in FocusBrowning v Information Commissioner  UKUT 236 (AAC)
In a case, relating to appeals under the Freedom of Information Act 2000 it was held thatthe First tierand Upper Tribunals comply with the standards of judicial decision making to comply with Article 6(1) European Convention on Human Rights on fair trial guarantees. However, this did not necessarily include every area of law within the tribunal system complies with civil rights and obligations within the text of Article 6(1).
B. Public Inquiries
The public inquiry is an administrative process which became popular during the 20th century as government departments obtained powers to intervene in the matters of local authorities, in areas relating to town planning, public health, compulsory purchase of land or housing. The Franks committee in 1957 considered that the object of the inquiry procedure was twofold. First to allow those most affected by government proposals to raise objections and secondly to make certain that the relevant minister was aware of the salient facts in order to make an informed decision about certain proposals.
The Franks committee made the following series of recommendations:
- individuals should be warned in sufficient time of the case to answer within the inquiry;
- government policy reasons should be disclosed within the inquiry;
- the inspectors who were in control of the inquiry should be independent of the minister directly concerned with the particular proposal, they should be responsible to the Lord Chancellor;
- that the final decision should be announced with a letter from the inspector and the minister;
- this letter should contain full reasons for the decision;
- that the ability to challenge the decisions would be made available on the grounds of jurisdiction and procedure in the High Court.
These proposals were accepted except for the fact that the inspectors were not transferred to the Lord Chancellors department and this is how inquiries operate within the present time.
Rules of Procedure for Public Inquiries
The Lord Chancellor has the powers under the Tribunals and Inquiries Act 1992, section 9 (amended) to created rules which regulate the procedure for statutory inquiries. Inquires are often made into matters such as compulsory purchase orders, or appeals against the refusal of planning permission. If a minister proposes not to follow an inspectors recommendations due to new material that arises after the close of an inquiry, the public authority and objectors must be informed as they have the right to request that the inquiry is reopened. An example of this occurred in the Chalk Pit Affair.
The rationale for the procedural rules is to establish fairness and transparency within the process of the inquiry. These rules are enforceable in courts and they are derived from principles of natural justice, which can be statutory or common law.
The Changing use of Public Inquires
The role of inquiries has diminished in recent years although it continues to be part of the process by which decisions are made in relation to the use of land for developments that are of environmental significance. Increased involvement of the legal profession in inquiries had led to delays in the decision making process. Steps were made to restrict the use of public inquires, including ss 100-1 Planning and Compulsory Purchase Act 2000, which authorised a written representations procedure for use in connection with compulsory purchases.
The Inquiries Act 2005
The Inquiries Act 2005 deals with legal provision for the investigation of national disaster or major scandal. Current practice is to appoint retired judges to serve in such inquiries. Public inquiries were held under the 2005 Acts predecessor, the Tribunals of Inquiry (Evidence) Act 1921. These include the Aberfan disaster of 1966, the Bloody Sunday shootings in Londonderry in 1972 and 2010, the Dunblane Shootings in 1996 and abuse of children in North Wales in 1999. Inquiries of this nature were not considered suitable in other circumstances. Lord Franks was appointed to chair a committee of privy counsellors to investigate the events leading to the Falkland Islands hostilities. The Butler review of intelligence on Weapons of Mass Destruction in Iraq used a similar methodology. In 2009, the Chilcott inquiry was established to investigate British involvement in the war in Iraq from 2001 until July 2009.
The Inquiries Act 2005 provided a new legal framework for inquires and repealed the 1921 Act. The 2005 Act empowers any minister in the UK government to appoint an inquiry into events that may cause public concern or 'there is public concern that particular events may have occurred' (section 1(1) Inquiries Act 2005). The inquiry does not establish criminal or civil liability, but it may find as facts events that lead to an inference of such liability (s.2). The minister will appoint a chair of the inquiry who may work with other members in consultation with the chair (ss 3-4). The conduct and procedure of the inquiry are to be directed by the chair, subject to fairness and the requirement to avoid unnecessary costs (s.17). Some prominent inquires have been established under the 2005 Act. The Mid Staffordshire NHS Foundation Inquiry and the Leveson Inquiry into Culture, Practice and Ethics of the Press and probably the most high profile under the system. Both have met the test of allaying public concerns about the health service and the regulation of the press.
There are public and private sector ombudsmen, this section is concerned with the former. The system of Ombudsmen in England is fragmented with various Ombudsmen dealing with complaints, which related to various areas of public responsibility. These include:
- the Parliamentary Ombudsmen (complaints pertaining to general public bodies);
- the Health Services Ombudsmen (complaints pertaining to health service providers);
- the Local Government Ombudsmen (local authorities);
- the Independent Housing Ombudsmen Service (social landlords).
The models in Scotland and Wales provide more integrated alternatives to the English approach, but it an essential element of devolution that each country within the UK is able to deal with such matters in whatever way it feels appropriate.
In 2000 a Review of the Public Sector Ombudsmen in England: A Report by the Cabinet Office, concluded that an integrated model should be adopted in England by merging the Parliamentary, Health Services, Local Government and Independent Housing Ombudsmen. The difficulty of this approach is that the Parliamentary Ombudsmen has jurisdiction over both English and UK-wide public bodies, so a merger of UK and English bodies would lead to further complexity. Modest reforms were instead implemented in 2007 which permits Parliamentary, Health Service and Local Government Ombudsmen to conduct joint investigations and issue joint reports on issues which related to overlapping areas of jurisdiction.
The Role of Public Sector Ombudsmen
The principle role of ombudsmen is to achieve redress for individuals who have experienced harm due to maladministration. There is also a quality control function of the ombudsmen, in order that broader systematic issues within public authorities should be addressed. When dealing with systematic failure of this kind, the ombudsmen carry out an important public function in holding the government to account. Many ombudsmen seek to combine these two approaches to their functions. In the investigation of a large number of individual complaints an Ombudsman might gain insight into a wider systematic failure in government functions.
In 2003-05 the Parliamentary Ombudsman received large numbers of complaints about the system of tax credits, in which individuals would be overpaid for significant periods of time and then required to repay this overpayment at some later date. For those already on low incomes, this repayment could lead to serious hardship. This series of cases led the Ombudsmen to consider the tax credits system as a whole, leading to recommendations in Tax Credits: Putting Things Rights. A similar review was carried out jointly between the Health and Local Government Ombudsmen in 2008-09. In Six Lives: The Provision of Public Services to People with Learning Disabilities, the treatment of six people with learning disabilities who died in NHS or local authority care was reviewed. This led to the recommendation that all NHS and social care organisations in England should be urgently reviewed in relation to their treatment of people with learning disabilities.
In recognition of the two functions of dealing with individual complaints which undertaking broad-reaching reviews is to deal in a different manner with the varying kinds of complaints received. In 2009-10 the Parliamentary and Health Ombudsmen receives 11,066 complaints. The first method they used was to deal with 356 cases under full investigation, whereas many other complaints were either rejected or dealt with in an informal manner with the relevant public body. [Parliamentary Ombudsmen, Making an Impact (HC 274 2009-10, p.18]
Ombudsmen and the Political Process
There are a number of ways in which Ombudsmen play a role in the political process; the role as initially conceived of by Drewry and Harlow was as 'an adjunct to the MP's traditional and cherished role as grievance-chaser on behalf of constituents'. ['A "Cutting Edge"? The Parliamentary Commissioner and MPs' (1990) 53 MLR 745, 753]. Thus, the relationship between the Ombudsman and Parliament has been developed in a number of ways to the functions which it now establishes. The Ombudsmen now carry out the following functions in relation to the political process:
- To report to Parliament each year on the performance of functions under the Parliamentary Commissioner Act 1967 and otherwise as is necessary. Reports were made to Parliament in relation to the overpayment of tax credits and the deaths of six individuals with learning disabilities in NHS or LA care.
- The Ombudsman can draw a matter to Parliaments attention when it determines that maladministration has taken place and the relevant public body will not remedy it. The enforcement of ombudsmen's recommendations is based upon the pressure they can bring to bear on governments.
- The Public Administration Select Committee of the House of Commons has a special relationship with the Parliamentary Ombudsman. The Committee both scrutinises the Ombudsman's work and applies political pressure onto government to accept the recommendations of the Ombudsman.
- A controversial element of the Ombudsman's role is the so-called MP-filter. The Ombudsman may investigate a complaint, but this needs to be referred by the complainants MP. This distinguishes the Parliamentary Ombudsman from other UK public sector ombudsmen to whom an individual can complain directly. The reason for the MP-filter is considered to be pragmatic and to shield the Ombudsman from an unsustainable workload, although evidence suggests that this does not apply in practice. The MP filter is also thought to fulfil a constitutional function, by requiring the MP to bear primary responsibility for addressing their constituent's complaints regarding public authorities.
Exam Consideration: There have been a number of proposals for reform in this area; there are a number of useful publications which can be reviewed at www.cabinetoffice.gov.uk. It is worth looking at some of these publications to help you gain extra marks in an exam.
Investigations by Ombudsmen
There are specific procedures that must be followed to consider whether an Ombudsman will investigate a particular matter. First, it must be a public body that is under consideration, legislation is clear in this respect in that it lists the institutions, which are capable of being investigated by the particular ombudsman. The Parliamentary Ombudsman is authorised to investigate public bodies, which are listed under schedule 2 Parliamentary Commissioner Act 1967.
There are matters which are excluded from the relevant ombudsman's jurisdiction to investigate. The Parliamentary Ombudsman is unable to investigate matters, which affect international relations, the commencement of civil or criminal proceedings or the granting of honours (schedule 3 Parliamentary Commissioner Act 1967). Contractual and Commercial transactions are excluded under sch 3, para 9, which proves particularly controversial since the spending of large amounts of public money is likely to impact upon certain individuals. Since the contracting out of service provision has become increasingly common, the exclusion is becoming ever more far reaching in its scope.
The next stage in the investigation is to consider whether maladministration occurred. The ombudsman can investigate complaints from individuals who claim to have sustained 'injustice in consequence of maladministration'. (s. 5(1)(a) Parliamentary Commissioner Act 1967). No positive attempt has been made to define maladministration within any legislation however. Maladministration addressed the decision making process as opposed to the merits of the particular case. However, the distinction between these two things is not always clear cut and often it is impossible to draw a clear line between the two.
When Richard Crossman MP introduced the idea of ombudsmen to Parliament, he listed a number of things that would be covered by the concept of maladministration. These include: 'bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on' [Hansard HC Deb, vol 734, col 51]. The Parliamentary Ombudsmen's annual report in 1993 added a number of other possibilities to this list including rudeness, denying an individual's rights, knowingly giving misleading on inadequate advice, offering little or no redress, faulty procedures, failure to monitor compliance with correct procedures, disregard for guidance on fair treatment, failure to mitigate inflexibility leading to unequal treatment.
More recently, the Parliamentary Ombudsman has moved away from the concept of maladministration into defining the positive concept of good administration. This includes
- Getting it right
- Being customer focused
- Being open and accountable
- Acting fairly and proportionately
- Putting things rights
- Seeking continuous improvement
[Parliamentary and Health Services Ombudsmen, Principles of Good Administration, (London, 2009)]
After considering whether maladministration has occurred the ombudsman must go on to consider whether this maladministration has led to an injustice towards the complainant. The notion of injustice considered here is broader than that considered within general legal proceedings.
Case in FocusR v Parliamentary Commissioner for Administration, ex p Balchin (No.1)  JPL 917, 926 per Sedley J
Within the context of the ombudsman's function 'injustice' refers not merely to injury that would obtain redress within a court of law but also "the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss".
As public bodies, ombudsmen are themselves amenable to judicial review. If ombudsmen exceed the scope of their discretionary powers, the courts are able to rule their decisions as unlawful. The ombudsmen's discretion to undertake an investigation is also subject to judicial review. However, this aspect is subject to a number of judicial decisions and qualifications.
Case in FocusR v Parliamentary Commissioner for Administration, ex p Dyer  1 WLR 621
The claimant sought judicial review of the Ombudsman's decision to investigate only certain elements of her complaint. The Ombudsman argued that judicial review was inappropriate in the light that the Ombudsman is accountable to Parliament via the Public Administration Select Committee. It was held that the 1967 Act did emphasise the width of the Ombudsman's discretion, which requires a high degree of subjective judgment, and in this case judicial review was not appropriate.
Case in FocusR v Commissioner for Local Administration, ex p Croydon London Borough Council  1 All ER 1033
It was held that the discretion whether to investigate notwithstanding the possibility of a judicial review is also subject to review. An adverse report was made against Croydon Borough Council regarding its allocation of secondary school places, the LA sought judicial review alleging that the child concerned should have sought judicial review of the decision as opposed to the Ombudsman. Woolf J did not set aside the Ombudsman's report, but also held that an ombudsman will have acted unlawfully if the considering or discontinuing an investigation on the ground that it is subject to judicial review. Any such judicial review would not be a broad one however.
Courts have also been willing to limit the scope of an ombudsman's investigations.
Case in FocusR (Cavanagh) v Health Service Commissioner for England  EWCA Civ 1578;  1 WLR 1229
A consultant referred the complainant daughter for diagnosis and treatment by a second consultant at the same hospital. The second consultant's department subsequently closed and the girl's treatment stopped. The complainants brought a case to the Health Service Ombudsman that the hospital had failed to ensure continuing care for their daughter and hence maladministration had occurred leading to injustice. The Ombudsman concluded that the hospital authorities were not at fault, but that the doctors had misdiagnosed the girls condition. Sedley LJ found that the Ombudsman had exceeded her powers by investigating the clinical decisions in the case instead of confining itself to reviewing the decision making process of the relevant authorities.
Finally, courts may scrutinise and apply the normal principles of judicial review as to whether an ombudsman's decision-making and conclusions are lawful.
Case in FocusR v Parliamentary Commissioner for Administration, ex p Balchin (No.1)  917 (No,2) (2000) 79 P & CR 157; (No 3)  EWHC 1876 (Admin)
The complainants were aggrieved by the circumstances in which a LA's decision to build a new road near their house, resulting in a reduction of the value of their house, and the Department of Transport's refusal to insist that the LA buy the house from the complainants at the higher value. Each time the Ombudsman found that no maladministration had occurred. In Balchin (No.1) Sedley J struck down the Ombudsman's report as he had failed to take account of a relevant consideration. In Balchin (No.2) the court struck down the report due to insufficient reasoning by the Ombudsman. In Balchin (No.3) the court found inadequate reasons in the Ombudsman's report. There were internal inconsistencies found in the report and a failure to give adequate reasons for his decision.
12.1 Administrative Justice - Tribunals and Ombudsman (Hands on Example)
The following problem questions provide example questions that can test your knowledge and understanding of the topics covered in the chapter on Tribunals and Ombudsman. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.
Q1 Problem Question
As a result of the government's austerity cuts in England and Wales significant cuts have been made to the allocation of spending in the NHS which has led to cuts in mental health services. As a result of these cuts it has been reported that people with mental health conditions are experiencing significant deteriorations in their state of mental health and the number of attempted suicides has risen. The Health Services Ombudsman has received 1,000s of complaints relating to the deterioration in people's mental health as a result of the withdrawal of certain vital services including counselling services available through GP's and certain medication that has previously been prescribed by GP's to mental health patients.
A. How is the Health Services Ombudsman likely to deal with these complaints?
B. The Health Services Ombudsman finds that there has been maladministration and concludes that a specific complainant ought to have been treated using electro-convulsive therapy rather than referral to counselling or drug therapies, how might a court react to this decision of the Ombudsman?
Q1 A. Suggested Answer
The Health Services Ombudsman may deal with the complaints under a full investigation or reject them, or deal with them in an informal manner in relation to the relevant public body.
Since there are over 1,000 complaints relating to this specific issue it is likely that the Health Services Ombudsman will review the wider issue and investigate whether there is a general policy failure in a specific area.
The specific body, which is under consideration, must be listed within Schedule 2 Parliamentary Commissioner Act 1967.
The Health Services Ombudsman must consider whether there are any relevant exclusions in relation to their jurisdiction to investigate a particular matter; this includes contractual and commercial transactions under schedule 3, para 9 1967 Act. There may be difficulties if the health service has contracted out certain mental health services.
The Health Services Ombudsman will then need to consider whether 'maladministration' has occurred. This may be a difficult question in the circumstances since the prioritisation of government spending does not amount to maladministration; there must be one of Richard Crossman's list: 'bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on' [Hansard HC Deb, vol 734, col 51].
Since 1993, it is also relevant to consider rudeness, denying an individual's rights, knowingly giving misleading on inadequate advice, offering little or no redress, faulty procedures, failure to monitor compliance with correct procedures, disregard for guidance on fair treatment, failure to mitigate inflexibility leading to unequal treatment.
It is clear that there must be some malpractice on behalf of the public officials, not merely an unpopular decision which is made within the confines of their lawful powers.
In 2009, the Parliamentary and Health Services Ombudsmen published Principles of Good Administration, which highlighted the positive concept of good administration. The elements of good administration include: Getting it right, Being customer focused, Being open and accountable, Acting fairly and proportionately, Putting things right, Seeking continuous improvement.
If the Health Services Ombudsman finds that maladministration has occurred, they must then consider whether it was that led to an injustice experienced by the claimants. It is important to note that this notion of 'injustice' is broader than a strictly legal form that is considered within court proceedings.
In R v Parliamentary Commissioner for Administration, ex p Balchin (No.1)  JPL 917, Sedley J held that an injustice could mean "the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss". This may be the case if those with mental health problems have been subjected to maladministration. They may not be able to show any financial loss as a result of the withdrawal of mental health services, but may be able to show the injustice has occurred due to a sense of outrage in the manner in which they have been treated.
Q1 B. Suggested Answer
The Ombudsman's role is not to investigate the clinical decision of the doctors, but to review the decision making process implemented by the relevant authorities. In R (Cavanagh) v Health Service Commissioner for England  EWCA Civ 1578;  1 WLR 1229 the complainants brought their case to the Ombudsman claiming that the hospital had failed to provide continuing care for their daughter when a consultant to which she had been referred had had their hospital department closed. Instead of reviewing this decision, the Ombudsman chose to review the clinical decisions of the specialists treating the girl, arguing that she had been misdiagnosed and offered the wrong form of treatment. The court found that the Ombudsman had acted outside of its powers in investigating the clinical decisions. Thus, a judicial review of the Ombudsman's actions in suggesting that the complainant with mental health problems should have been offered electro-convulsive therapies instead of counselling and drug treatment would be an act that exceeds their powers. They should have instead confined themself to a review of the decision of the government department to stop referring individuals for counselling and limiting prescriptions of drugs to help people with mental health problems.
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