Part II - some common alternative remedies
S 26(6)(a) Where the person has or had a right of appeal, reference or review to or before a statutory tribunal
(see examples)
What is a statutory tribunal?
- S34(1) says that a “tribunal” includes “the person constituting a tribunal consisting of one person”.
- A statutory tribunal is one which is set up by or under an Act of Parliament. Many are supervised by the Council on Tribunals (CoT) and a list of these is contained in Schedule 1 to the Tribunals and Enquiries Act 1992.
The main tribunals relevant to complaints which may be made to the Ombudsmen are:
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Information Commissioner
The Information Commissioner is a tribunal in respect of its non-executive functions (See s48 DPA 1998 and s57(1) and (2) FOIA 2000)). These are functions that are capable of being appealed to the First-tier Tribunal (Information Rights). They include decision and enforcement notices (see S42 DPA 1998) issued by the Commissioner.
However, they do not include requests for assessment by the Commissioner under the Data Protection Act 1998; such assessments cannot be appealed to the Information Rights Tribunal.
If a complainant believes that one of the eight principles of information handling in the Data Protection Act 1998 has been broken by a data controller and is unable to sort out the problem he/she may refer the case to the Commissioner under s42. He will assess whether the requirements of the Data Protection Act 1998 have been met. The Commissioner will always try to deal with the matter informally. However, if the Commissioner’s assessment is that the requirements of the Data Protection Act 1998 have not been met and the matter cannot be settled informally, he may then decide to take enforcement action against the data controller. (The data controller may appeal to an independent Data Protection Tribunal under s48.)
If Data Protection or Freedom of Information issues are incidental to a more substantive complaint that is in jurisdiction, they can be considered.
The Commissioner’s helpline telephone number is 0303 123 1113. The address is Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF. The website address is www.ico.gov.uk.
See County Court below for the right to go to court under the Data Protection Act 1998.
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Education Appeal Panels
These are set up under the School Standards and Framework Act 1998 to hear appeals against school admission and exclusion decisions. These panels are themselves within the Ombudsman’s jurisdiction. A parent aggrieved about a decision on a school admission should usually first appeal to a panel.
When we are considering a complaint following the decision of an appeal panel there may be matters relating to what happened before the appeal and in connection with the original admissions decision which we need to consider (for example something about the way the admissions decisions were taken by the admissions authority which the appeal panel did not consider). The actions of governing bodies acting as admissions authorities have been within jurisdiction since 1 April 1999.
There may also be some complaints about education admissions matters which cannot be the subject of an appeal. We could consider such complaints provided they are not otherwise excluded on jurisdictional grounds.
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Housing and Council Tax Benefits Appeals
Applicants dissatisfied with the way benefits are calculated etc have a statutory right to appeal to an appeal tribunal (the Tribunals Service) and thereafter on a point of law to a Commissioner appointed under the Child Support, Pensions and Social Security Act 2000. But there will be no appeal to a tribunal against the decisions of councils on the payment of financial assistance known as “discretionary housing payments” (See s69 of the Act).
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Lands Tribunal
The main types of cases that the Lands Tribunal deals with and which may be of relevance to complaints made to the Ombudsmen are:
- Compulsory Purchase: disputed valuations of compulsorily purchased land or property.
- Land Compensation: Claims for compensation for loss of value arising from public works, such as noise nuisance from new roads.
- Disturbance payments: disputes as to the amount for permanent or temporary displacement from land/property.
- Restrictive Covenants: Applications to lift or modify restrictive covenants on land, so that development or change of use can take place.
- Leasehold Reform: Appeals against decisions of Leasehold Valuation Tribunals concerning the price payable by a tenant to a landlord for the freehold of a property.
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Leasehold Valuation Tribunal
This Tribunal has jurisdiction to determine disputes about the reasonableness of service charges under long residential leases. The Tribunal can determine the reasonableness of service charges. Either the tenant or the landlord may apply to the Tribunal for the determination. The focus of the Tribunal is the reasonableness of the charge and it is not a way of making a complaint that the landlord has not done repairs or the services are of poor quality, although these issues may arise in challenge of the reasonableness of the service charge.
The Tribunal and County Court have concurrent jurisdiction in various landlord and tenant matters. The County Court has power to transfer cases to the Tribunal.
The Tribunal’s jurisdiction includes cases where the service charge has been paid. There does not appear to be a limitation in time as to when the service charge might have arisen or been paid. The Tribunal may also determine disputes about administration charges imposed by landlords and the tenants' right to manage.
The Tribunal will also be able to vary leases and determine whether there has been a breach of covenant before the landlord forfeits a lease.
Guidance on applications to the Leasehold Valuation Tribunal is available at: www.justice.gov.uk
In cases of uncertainty about whether to take proceedings in the Tribunal or the County Court free advice on the most appropriate route is available from the Leasehold Advisory Service. The contact details are:
Telephone: 020 7383 9800
Fax: 020 7383 9849
Email: info@lease-advice.org
Address: Maple House, 149 Tottenham Court Road, London W1T 7BN
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Residential Property Tribunal Service
Residential Property Tribunals (RPTs) have jurisdiction to deal with decisions of authorities under the Housing Act 2004 in respect of
- unfitness for human habitation
- houses in multiple occupation
- selective licensing
- management orders
- empty dwelling management orders
- right to buy (only those that are refused under Schedule 5 para 11 Housing Act 2004 in respect of properties that are suitable for occupation by elderly persons)
More information can be obtained from www.justice.gov.uk
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Parking Adjudicators
Adjudicators appointed to the Traffic Penalty Tribunal (‘TPT’) (formerly the National Parking Adjudication Service (‘NPAS’)) and (in London) the Parking and Traffic AppealsService (‘PATAS’)
TPT and PATAS offer an adjudication service to local authorities who have adopted a decriminalised parking regime.
Adjudicators are appointed under s73 Road Traffic Act 1991.
The grounds for an appeal to an Adjudicator are in s71(4) (representations in relation to removal or immobilization of vehicles) and Sch6(2)(4) Road Traffic Act 1991 (representations against notice to the owner).
Procedure is governed by the Road Traffic (Parking Adjudicators) (England and Wales) Regulations 1999 for TPT and by the Road Traffic (Parking Adjudicators) Regulations 1993 for PATAS.
TPT is based in Manchester: telephone number 0161 242 5252.
PATAS is based in London: telephone number 020 7747 4700.
For PCNS served on or after 31 March 2008 the law is given by the Traffic Management Act 2004. This has greatly increased the Tribunals’ scope to consider representations. There is a note giving guidance on which legislation applies.
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First Tier Tribunal (Special Educational Needs and Disability) (SEND)
Relevant legislation - Education Act 1996. Full details are given in the practice note on special educational needs [Available to LGO staff only on Intranet]. Appeals to the Tribunal may be made against decisions:
- not to assess or reassess
- not to make a statement
- about the content of the statement or amended statement (except non-educational needs or provision)
- to refuse to amend a statement following reassessment
- to cease to maintain a statement
- discrimination in the provision of education (Special Educational Needs and Disability Act 2001).
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Valuation Tribunals
There are 56 Valuation Tribunals (VTs) in England. Each deals with appeals about Non-Domestic Rates and Council Tax. It is a free service. VTs are independent of both the Valuation Officer and the billing authority. Information about how to contact the relevant tribunal and the process is at www.valuation-tribunals.gov.uk/index.html
The following are not tribunals:
- The district auditor
- Review Panels set up as part of the statutory complaints procedures in respect of social services and children’s matters
- A district valuer who is asked to determine the purchase price of a “right to buy” (RTB) dwelling house under s 128 of the Housing Act 1985. Note: the Ombudsman would normally expect a RTB applicant to use the district valuer if there is a disagreement on the purchase price and so would terminate the complaint under Ombudsman’s discretion. (Note RTB matters may be determined in the County Court)
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S 26(6)(b) Right of appeal to a Minister of the Crown
(see examples)
This sub-section only relates to an Appeal and not a reference or review as under s26(6)(a).
The main appeals are:
- Planning appeals which include appeals against non-determination of a planning permission.
- Enforcement notice appeals.
- Appeals under the Highways Act about the recovery of expenses for making up highways.
The following are not appeals and are not, therefore, caught by s26(6)(b):
- Applications to the Secretary of State for Health (s84 of the Children Act 1989) alleging a council’s failure to comply with a statutory duty under this Act - default powers of the SOS.
- Objections to compulsory purchase orders (CPOs) - this is because the individual may only lodge an objection and the Minister is not deciding an appeal but whether to confirm the order. Note: if the matters complained of could properly be put to the Minister and could affect the decision on whether to confirm the CPO, consideration should be given whether to exercise discretion not to investigate under Ombudsman’s discretion.
- A request for the Secretary of State for the Environment to exercise intervention powers under s164 of the Housing Act 1985. Where it appears to the SOS that a tenant or tenants may have difficulty in exercising their right to buy effectively or expeditiously, the SOS may step in and exercise RTB provisions.
- Complaints to the Secretary of State for Education that an LEA, governing body, or school organisation committee has acted or proposes to act unreasonably (s496, 497, Education Act 1996 and schedule 4, paragraph 10, School Standards and Framework Act 1998.)
- Representations to the Secretary of State for the Environment in respect of a failure by the council to determine a Footpath Modification Order under Schedule 14 paragraph 3(2) of the Wildlife and Countryside Act 1981.
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S 26(6)(c) Remedy by way of proceedings in any Court of Law
(See examples)
This subsection applies only where the complainant has or had a remedy by way of proceedings against the council, not a third party.
- S26(6)(c) does not apply where the complaint could have or has been raised in defence of an action brought by the council (See R v Local Commissioner for Administration ex parte Bradford Metropolitan City Council (1979).
- But if the matter was aired in the court it would usually be proper to discontinue under Ombudsman’s discretion.
- Different considerations would apply to cases where in the course of such proceedings the complainant makes a counterclaim against the council, including claims about a breach of the Human Rights Act 1998 which are raised in proceedings brought by the council.
- Neither is it a consideration whether or not the proceedings would be likely to succeed. (See R v Commission for Local Administration ex parte Croydon London Borough Council (1989).)
The following are examples of statutory provisions that provide a specific right to go to a particular court. Note: Time limits for taking action will often be stated in the part of the Act which gives the right to go to court.
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Magistrates’ Court
- Highways Act 1980 – s316; apportionments under the Private Street Works Code. S56; order to repair a highway which is maintainable at the public expense. As a first step the complainant must serve a notice of disrepair on the Highway Authority (HA). If the HA responds with a notice within one month admitting it is the HA and liable to maintain the highway, the complainant may within six months apply to the Magistrates’ Court for an order requiring it to be put in proper repair. Where the HA does not respond to the complainant’s notice, the complainant may apply to the Crown Court direct. Similar provisions apply.
- Building Act 1984 – s55; Building Regulations. An appeal where a person is “aggrieved” by a council’s rejection of an initial notice, a plans certificate or final certificate.
- Certain licensing provisions eg private hire vehicle licensing and hackney carriage licensing.
- Licensing Act 2003 s181 and Schedule 5 gives rights of appeal against licensing decisions for those who feel aggrieved. This includes applicants where their application has been rejected or granted subject to conditions AND those who made relevant representations in respect of an application. This means that a local resident has a right of appeal against the council’s decision to grant a licence or in respect of the conditions imposed on a licence if he/she has made relevant representations in respect of the application. “Relevant representations” is defined in s18(6) of the Act.
- Environmental Protection Act 1990 – s82; an application by a “person aggrieved” in respect of statutory nuisances (see s 9 of EPA for full list of statutory nuisances). The council can be joined in proceedings where action is taken against a neighbour.
- Environmental Protection Act 1990 – s91; allows for an application to the court for an order for the council to remove litter, after giving notice to the council.
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County Court
The County Court has general jurisdiction in Landlord and Tenant claims – see paragraph above for jurisdiction of Leasehold Valuation Tribunal. In addition:
- Housing Act 1985 – s181; an application to deal with right to buy matters (subject to the district valuer’s jurisdiction to determine the value of a dwelling house under s128 of the Housing Act 1985 – see above) Note: in RTB matters where there is a complaint of delay by the council, the Ombudsmen expect the complainant to use the procedure in s 153A of the Act “Tenants notice of delay”. The 153A tenant’s notice is not a 26(6) right/remedy, but failure to use this right may result in a 26(10) termination.
- Housing Act 1985 – s110; wider jurisdiction to consider questions arising under Part IV of that Act - this includes such matters as whether the council’s consent to an exchange, subletting or improvements was unreasonably withheld.
- Housing Act 1996 – s138; to determine questions in relation to introductory tenancies.
- Housing Act 1996 – s204; contains a right for a tenant to appeal on a point of law if he/she is dissatisfied with the review of a decision on homelessness or has not been given the decision in relation to homelessness matters.
- Secure Tenant of Local Housing Authorities (Right to Buy) Regulations 1994; disputes about tenants’ “Right to repair”.
- Appeals by landlords against the service of Housing Act Notices.
- Data Protection Act 1998 (note the High Court also has the jurisdiction to hear these cases):
s7(9); a court may order a data controller to comply with a request for access to personal data made under that section if satisfied that there has been non-compliance by the data controller in breach of the Act. So in principle a complainant will have recourse to the court if s/he receives no reply within the statutory timescale (currently 40 days) or s/he claims that the data controller has wrongly relied on an exemption to disclosure or on other grounds to refuse the request.
s13; an individual who suffers damage by reason of any breach of the Act by a data controller is entitled to compensation. This may include compensation for distress if (a) the individual also suffers damage by reason of the contravention or (b) the contravention relates to the processing of personal data for the special purposes (ie journalism, or artistic/literary purposes)
s 14; a complainant who is a data subject may apply to a court alleging that personal data relating to him/her are inaccurate. If the court is satisfied the data are inaccurate, it may order the data controller to rectify, block, erase or destroy the data including other data that contains an expression of opinion which appears to the court to be based on the inaccurate data. The court also has powers to order the data controller to notify third parties to whom the inaccurate data have been disclosed of the rectification etc.
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Crown Court
There is a right to apply to the Crown Court where a notice of disrepair of a highway has been served by a complainant on the Highway Authority and the authority has not responded. See above.
There will often be a right of appeal from a Magistrates’ Court decision to the Crown Court, for example, enforcing liability to maintain the highway, building regulations and appeals in respect of certain rating matters. There is also provision for the Crown Court to consider appeals against the decisions of the Magistrates about private hire vehicle licences and hackney carriages (for a full explanation of appeal rights in these cases see Taxis – Licencing Law and Practice by James T H Button (1999) – copy in York office library.)
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High Court
Legality of CPO; judicial review; appeals on points of law.
Torts and breach of contract claims:
- Action in respect of civil wrongs (torts such as negligence, nuisance, trespass) are usually heard in the County Court. So, too, would be claims for breach of contract. This is unless the damages claimed are substantial, in which case it will be the High Court. There is no hard and fast rule about the jurisdictional financial limits of these two courts. Regardless of the amount claimed, all proceedings can start in the County Court. A claim of say £50,000 would probably be transferred to the High Court, whereas a claim for £15,000 would probably stay in the County Court. So far as claims for personal injuries are concerned, the High Court will not entertain those which are for less than £50,000.
- Note: Time limits for making claims in contract and tort are called limitation periods. Broadly, contractual claims must be made within six years from when the contract was breached (if the contract is not just signed but is under seal then the period is extended to 12 years). Claims in tort may be brought within six years of the damage suffered.
There is a right to go to court for people who claim that their human rights under the European Convention on Human Rights have been breached by a public authority. Proceedings may be brought in the appropriate court or tribunal for any breach that takes place on or after 2 October 2000 [LGO guidance on the practical implications of the Human Rights Act 1998 available to LGO staff only on LGO intranet.]
An application for judicial review may result in order(s) of the High Court for:
- Mandatory Order to force the council to carry out a duty eg: to remove obstructions from a highway. In Wyatt v Hillingdon 78 LGR (1978-79) the Court of Appeal held that Mandamus did not lie to force the council to carry out the duties under the Chronically Sick and Disabled Persons Act 1970 to provide facilities for disabled persons.
- Prohibiting Order which prevents a council, when acting judicially or quasi-judicially, from acting unlawfully.
- Quashing Order which will quash such an unlawful action (eg a decision on whether a person is intentionally homeless where the council did not take account of all the relevant facts, or did not make proper enquiries).
- Declaration where the Court just declares that the body concerned has acted contrary to the law.
- Injunction. This is an order by the Court either prohibiting the party to whom it is addressed from doing a particular act or requiring the party in question to perform a particular act. In Bradbury v Enfield LBC - CA, 1967 an injunction was granted to prevent a local authority from reorganising local schools without following the correct procedures.
The process and time limits for judicial review:
- The first step in judicial review proceedings is the lodging of the papers at court for permission to proceed. The failure of a claimant to exhaust alternative remedies and appeals procedures will mostly, in practice, act as a bar to judicial review.
- The court will review the form, procedure and appearance of the decision rather than the substantive decision itself (but see Note on Human Rights Act below).
- Three heads of challenge are possible. Broadly, these are that the decision was ultra vires (beyond its powers), that it was “Wednesbury unreasonable” and that the public authority was acting unfairly and in breach of natural justice. Note: Wednesbury unreasonableness (sometimes referred to as perversity) is essentially irrationality in a decision. It arises from the case of Associated Pictures Houses v Wednesbury Corporation (1948). It applies to a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. Cases where unreasonableness has been established to the requisite standard include the decision to give a retiring civil servant a derisory gratuity of one penny per year of service and the Home Secretary’s decision to cancel television licences to penalise individuals who avoided a large increase in the licence fee by purchasing a new licence during the currency of their old licence. Note: The Human Rights Act 1998 will have a profound effect on Wednesbury unreasonableness. It is expected that the courts will look far more closely at the merits of a decision when ruling on a question of incompatibility with the Convention [Staff see HRA Guidance Note available to LGO staff only on LGO Intranet].
- Time limits for judicial review are very strict. Proceedings must be issued “promptly and no later than three months from the date when the grounds for the application first arose.” As from 2 October 2000 the Courts power to extend the time limit is more restricted.
Examples showing the difference between judicial review, a right of appeal given by statute and a private law action in tort or contract (a tort is a civil wrong such as negligence, nuisance, trespass):
- If a person disagrees with a council decision and there is a statutory right of appeal to a court, tribunal or minister, the person would be expected to challenge the decision by way of appeal (see above). This can be distinguished from a case where a council has come to a decision (against which there is no right of appeal) after refusing to listen to the complainant’s evidence. This would be in breach of the principles of natural justice and would be a ground for judicial review.
- If a council were to set up toll booths on all roads entering its boundaries and demand tolls from all motorists entering, and it did not have the statutory authority to do so, it would be acting beyond its powers and would be liable to judicial review. The result of such a hearing would make the council decision void (it would be quashed) and the authority would have to stop the practice and return any money collected. No-one would be able to sue in contract because no contract had been entered into nor in tort as the law of tort does not cover such contingencies as this. On the other hand, if the toll booths were lawfully set up by the council, but the barriers caused damage to cars as they passed, a “victim” motorist might be able to sue in tort, on the grounds of negligence. In practice the council would be most likely to settle through its insurers.
- In the case of a company which had a contract with a council to carry out one of its functions, it would be entitled to sue for breach of contract if the council failed to make the contractual payments. Judicial review would not arise in this case. The council had simply broken a contract.
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Date Updated: 28/11/11