Part III - Is it reasonable for the complainant to use alternative?

Generally
Factors to be considered
Specific points to consider before exercising discretion under 26(6)
S 26(6)(c) and Judicial Review
How exercise of discretion works

S 26(6) provides that even if there is a right of appeal, reference, review or remedy by way of proceedings in any court of law, the Ombudsman may conduct an investigation if he or she considers that in the particular circumstances it is not reasonable to expect the person to resort to it. This is known as “the proviso”. (See examples).

Generally

The exercise of this discretion needs to be regarded as exceptional and must be based on the circumstances of the complainant and the facts of the complaint. Discretion must not be exercised automatically.

Note: In each case the question to be asked is “Is it reasonable to expect this complainant in the circumstances of this case to use the alternative right or remedy?”

When does an action begin?

This will usually be the application to the court for a summons or writ or the lodging of an appropriate appeal with eg the Secretary of State. With regard to an application for permission to seek judicial review, the Ombudsmen, following leading Counsel’s advice, have decided that if a complainant has made an application to the Court for permission to take judicial review proceedings this is “resorting to the remedy” even if the application is rejected. In such cases the Ombudsmen cannot exercise their discretion to investigate.

Factors to be considered

When an appeal to a Minister or to a Tribunal is available about the actual subject of the complaint
The Ombudsmen normally expect the complainant to use that avenue.

A complaint about the refusal of planning permission
The Ombudsmen usually expect complainants to appeal. This is even if there is a clear allegation of maladministration (eg bias by a planning officer or a member’s interest) because what most applicants want is to get the planning permission and Parliament has expressly provided the right of appeal as a means to that end.

The fact that a council has put a matter in the hands of its insurers
This may indicate that the council considers a legal remedy may be available. Note:

Where discretion is not exercised on the main subject of the complaint (eg that repairs were not done) a complaint about the handling between the council and insurer of the claim for damages will usually not be accepted.
Where discretion is exercised to investigate the main subject, a complaint about the handling of the insurance claim will usually be accepted for consideration.

The availability of legal help, help at court, and legal representation (formerly legal aid)
This is one of the matters relevant to the decision whether to exercise discretion. (Legal Services Commission (LSC) website – www.legalservices.gov.uk/ – includes comprehensive information and lists leaflets available.) If the complainant is not funded in this way the LGO will take into account the costs s/he is risking against the benefits s/he is seeking. The higher the ratio of costs to benefit, the more likely the Ombudsman is to wish discretion to be exercised. The reason for refusing funding may be relevant. If it is because the LSC consider there was, for example, no breach of statutory duty, it may be that s26(6)(c) does not apply.

Whether the action is likely to succeed
This may be relevant to the exercise of discretion. For example, complainants may allege or the complaint may suggest negligence by the council. But apart from some personal injury claims, case law shows there is little chance of a negligence claim succeeding.

Small claims up to £5,000
There is a simple procedure in the County Court for dealing with small claims. (Website www.compactlaw.co.uk gives free step-by-step instructions on how to make a claim in the County Court.) Usually, solicitors are not required, so that the only costs will be the court fees. The website contains information about these. The possibility of using this procedure is relevant to the exercise of the Ombudsman’s discretion under the proviso, as the costs for the complainant in seeking the remedy should not be high. But with a small claim (say up to £200) it is worth checking the up-to-date court costs that would be involved.

The possibility of court proceedings arising during an investigation (See Part I).

Unrecovered costs and expenses
Where a statute has set up a specific right of appeal, the fact that the appellant body does not have power to award costs is not generally a ground for exercising discretion. The fact that these extra costs are irrecoverable is not generally a reason to exercise discretion. It is to be presumed that Parliament would have made a provision for the award of costs had that been its intention.

Specific points to consider before exercising discretion under s26(6)

S26(6)(a) and (b) (these may also apply to s26(6)(c))

Where the complainant was unaware of the right and the authority failed to advise him or her of it.
Where the complainant was prevented by absence, illness or some other incapacity from resorting to appeal.
Where there is no possibility of bringing an out-of-time appeal and there are good reasons why this right was not exercised earlier.

S26(6)(c)

If there is a specific statutory right to appeal to a court against the council’s actions, the LGO usually will not exercise discretion.
Normally discretion will not be exercised in those cases where judicial review is the more appropriate remedy (see also below) for the complainant or where the interpretation of law is at issue. (See below as to costs.)
Failure of an authority to comply with contractual obligations that are within jurisdiction (housing repairs, mortgage matters) will not normally be investigated if the Ombudsman is being asked to interpret the law, eg where there is a legal dispute as to the meaning of a document. Enforcing duties under leases, whether commercial or long-term residential (eg bought under right to buy) is a matter best left to the courts.
The Ombudsman would expect disputes about the level of service charges for residential long-term leases to be dealt with by appeal (before 1 September 1997 to the County Court under the Landlord and Tenant Act 1985, and after that date to the Leasehold Valuation Tribunal).
Contractual claims and most claims of negligence are matters for the courts and therefore the LGO usually will not investigate negligence claims, eg falling over a badly set paving stone or claims affecting contractual rights (but see below on costs).
The LGO usually will not consider it reasonable to expect a complainant to resort to legal proceedings if the costs are likely to be high compared with the benefit claimed unless the complaint turns on a point of law or disputed statutory interpretation.
Where a tenant of the council complains of damage to or loss of his or her goods caused by an employee or contractor of the council, the LGO would normally regard the matter as one for which a legal remedy will be available and not one on which discretion should be exercised. An exception may be made, however, where the complaint forms part of a wider complaint about the provision of some service by the council, such as the carrying out of repairs or where the costs of court action would be disproportionately high. The liability of the council for the action of its employees or contractors is uncertain. In certain circumstances the employees or contractors may be personally liable. So in such cases reference should be made to 26(6) and 26(10).
Usually the Ombudsmen will not exercise discretion in complaints of defamation.

S 26(6)(c) and Judicial Review

The case of R v Commission for Local Administration ex parte Liverpool City Council (2000) highlighted the overlap between maladministration and matters which can be raised in judicial review proceedings. Lord Justice Henry said:

“What may not have been recognised back in 1974 was the emergence of judicial review to the point where most if not all matters which could form the basis for complaint of maladministration are matters for which the elastic qualities of judicial review might provide a remedy.”

Paragraph 28 of Lord Justice Henry’s judgment includes some useful pointers on the exercise of discretion where judicial review might be available and these should be taken into account in considering whether to exercise discretion.

The allegation can be best investigated by the resources and powers of the Ombudsman.
The Ombudsman is in a position to get to the bottom of the prima facie case of maladministration and the complainants would be unlikely to reach that goal “having regards to the weaknesses of the coercive fact finding potential of judicial review ... it would be very difficult, if not impossible, for the complainants to obtain the necessary evidence in judicial review proceedings.”
The complainants are unlikely to have the means to pursue a remedy through the courts.
The Ombudsman’s investigation and report can provide a just remedy when judicial review might fail to do so.

Although the following were not expressly mentioned in the Liverpool case the Ombudsmen consider that the following may also be relevant considerations when deciding whether to exercise discretion under s26(6).

Uncertainty whether there is a remedy by means of judicial review (or other court proceedings).
The time limits for judicial review (eg would it be reasonable in the circumstances of the case to expect the complainant to make or have made the application in time)(see Part II).
The availability of Legal Services Commission funding for judicial review (see above).

Note that in judicial review proceedings evidence is in the form of Witness Statements. The absence of oral evidence means there is no way of testing what is said by cross examination. Furthermore, the process of judicial review, unlike other litigation, does not include the right to see the opponent’s files. So in these cases a complainant who judicially reviews the council must rely on information he has gathered prior to the action commencing. This may be a relevant consideration in deciding whether to exercise discretion.

Examples of how exercise of discretion has worked or might work in practice

In one case the Ombudsman exercised discretion to investigate the way the council refused to grant the complainant planning permission for a roof extension. The complainant had a need to build an extension without delay, and so could not wait for the outcome of an appeal. He in fact built a smaller extension under his permitted development rights.
In another case the applicant for planning permission was a prospective lessee of premises and when she was refused planning permission, the owner disposed of the premises elsewhere. Discretion was exercised and the complaint investigated.
Although a remedy for a complaint about the way an education appeal panel dealt with an appeal could be sought by way of judicial review such actions are so uncertain, costly and disproportionate to the issue at stake that the Ombudsmen would usually decide that it was not reasonable to expect a parent to use that remedy and so discretion would be exercised.
It may be appropriate to exercise discretion where there is, for example, a complaint about delay in dealing with a damp bedroom wall in a council flat. Although this is susceptible to legal action in the County Courts, because of the uncertainty and cost of court proceedings the Ombudsmen would usually exercise discretion.
Where there is a complaint about the level of service charges for a long residential lease which could go to the Leasehold Valuation Tribunal, but the complaint relates solely to the failure to provide information about the service charges, exercise of discretion may be appropriate.

Date Updated: 24/06/10

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