Part I - the general question

Grounds for challenging an Ombudsman investigation

There are two grounds for challenging an Ombudsman investigation where an alternative right/remedy exists either:

• that we omitted to consider if there was an alternative right/remedy or misdirected ourselves on the question, or
• that the discretionary decision to investigate or not to investigate was “Wednesbury unreasonable” (see Part II for an explanation of what this means).

No jurisdiction when rights have been exercised

If the complainant has resorted or resorts to the right/remedy the Ombudsmen cannot exercise their discretion to investigate a complaint (but see Part IV).

Whether a complainant has rights of appeal, reference, review or remedy by way of proceedings in a court is a matter of fact and must in every case be considered

In deciding whether there is an alternative right/remedy, no account should be taken of whether the action would be likely to succeed. But the success factor may be relevant to the exercise of discretion to investigate – see Part III.

A record must be made on the file whether an alternative right/remedy was or is available and why it is (or is not) reasonable to expect the complainant to resort to it.

The existence of a possible alternative right/remedy must be kept in mind throughout the investigation and the exercise of the discretion should be reviewed during the investigation if new considerations arise. Any review must be recorded on the file. A decision to discontinue should be recorded as such under Ombudsman’s discretion.

Part III sets out the question to be asked when considering the exercise of discretion to investigate.

Where a complainant contests that there is an alternative right/remedy

Where it is thought likely that a complainant would contest that there is an alternative right/remedy and there are sufficient grounds to discontinue the investigation under Ombudsman’s discretion, the decision letter should refer to both this subs. and s26(6) and explain the reasons for the application of both.

Date Updated: 24/06/10