Part IV - Alternative right already used
Complaints where there has been or is litigation or an appeal of some sort in connection with the complaint.
The general rule
Where a complainant has exercised his/her right of appeal, reference or review or remedy by way of proceedings in any court of law, the proviso to s26(6) is irrelevant. Note: In judicial review proceedings the right is exercised when the complainant makes his/her application for permission to the court. The Ombudsman, in such cases, has no jurisdiction even though the appeal may not provide or have provided a complete remedy for all the injustice claimed. The case of R v The Commissioner for Local Administration ex parte PH (1999) (“ex parte PH”) was concerned with a complaint made about a local authority’s failure to provide education for H. H’s mother had previously judicially reviewed the Council for this failure and the matter had settled. She then came to the Ombudsman seeking compensation. The Ombudsman told H’s mother that he had no jurisdiction to investigate because she had resorted to her remedy in court. Mrs H judicially reviewed the Ombudsman. In dismissing her application Mr Justice Turner said:
“It can hardly have been the intention of Parliament to have provided two remedies, one substantive by way of judicial review and one compensatory by way of the Local Commissioner. The essential feature of the legislation is the creation of a legal right to complain about a grievance, but in respect of which there had been no available form of redress whether through the common law or by means of judicial review. Where a party has ventilated a grievance by means of judicial review it was not contemplated that they should enjoy an alternative, let alone an additional right by way of a complaint to a Local Government Commissioner. It follows that in my judgment the Commissioner was correct when he concluded that he had no jurisdiction to investigate the Applicant’s complaint, and this application must be dismissed.”
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Misconceived proceedings
Where proceedings that have been taken are misconceived the Ombudsmen retain jurisdiction. Misconceived proceedings are those where the action taken does not amount to the pursuit of an available right or remedy. For example, an application for permission to judicially review a council’s decision that claimed negligence by the council and sought compensation for damage/injury would be misconceived because there is no jurisdiction to consider such claims in the judicial review court. Likewise, proceedings may be misconceived where for other reasons the appeal or other action is struck out by the court or a tribunal at a preliminary stage where there is no legal basis for the action. Misconceived proceedings would not include those that were simply hopeless on the merits, for example, a planning appeal made on valid grounds but which was bound to fail on the facts. In cases of uncertainty reference should be made to Assistant Ombudsmen or Deputy Ombudsmen.
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Complaints where litigation or an appeal is commenced after the investigation has started
The advice below should be followed and if the complaint is to be discontinued reference should be made to the text below.
Complaints where the litigation or an appeal is proceeding and not finalised
Extra caution is required in these cases because it may be difficult to know whether any part of a complaint is capable of separation until the litigation is finalised. The advice in below should be followed. Where there is uncertainty about the possibility of the litigation incorporating any aspect of the complaint, reference should be made to AOs.
Where a complaint is to be rejected reference should be made to text below.
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But where the general rule applies, is a part of the complaint separable from the matter which has been litigated?
There may, however, be cases where an element of the complaint may properly be distinguished from the matter in respect of which the complainant had resorted to an alternative remedy. But caution is needed to ensure that there is a properly justified decision for the separation of the complaint and there is no danger of the Ombudsman deciding matters which have already, directly or indirectly, been adjudicated on by a tribunal, minister or judge. It is essential to check the papers to ensure that this is the case. This will include any judgment, transcript or decision. Where there have been judicial review proceedings, the application to the court (Form 86A) and any reply by the respondent are key documents. Where there is a suggestion that an element of the complaint may have been considered in this way it is advisable to look further into relevant correspondence or formal evidence.
Where the litigation has not gone beyond the initial stages of lodging papers at court/tribunal, there is less material upon which a decision regarding separation of a complaint might be taken. In cases of uncertainty reference should be made to Assistant Ombudsmen or Deputy Ombudsmen.
Where the complaint is to be rejected because there is overlap or suspected overlap with the litigation, this factor should, together with any other reasons for rejection, be included in the decision letter (see below).
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Misleading advice in planning cases
A complaint that a council has given wrong pre-application advice about the need for planning permission does not relate to any later refusal of planning permission for the same proposal. So Section 26(6)(b) will not apply to the issue of the wrong advice.
A complaint that a council has advised an applicant that no planning permission is required for his or her proposal and the applicant:
- has carried out the development in reliance on that advice;
- is later told that planning permission is required;
- applies for planning permission which is refused;
- appeals to the Secretary of State and is again refused
is therefore within jurisdiction.
A complaint from an applicant who is misled by a council as to the need for planning permission but later is granted permission by the council (or on appeal) is also within jurisdiction. But discretion should be exercised to reject the complaint, unless there is some exceptional justification. For example, there may be an exception where the information available suggests that there is a real chance that the complainant has suffered injustice, which has not been sufficiently remedied by the grant of permission.
There may be cases where the misleading advice relates to being told by a council that planning permission is required but would be bound to be granted. It may be that the complainant then relies on that advice and acquires the property in question and planning permission is refused. These complaints are also within jurisdiction. But in each case the reasonableness of the complainant in acting on the misleading advice needs to be considered.
In cases of doubt or uncertainty about whether to investigate such complaints, the matter should be referred to the Assistant Ombudsman for advice.
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Distinguishing between types of delay
There is a need to distinguish between the inevitable delay in the process of appealing against a planning decision and a council’s delay in dealing with a matter prior to the decision on it.
The case of R v The Commission for Local Administration ex parte Colin Field (1999)* is relevant. In that case Mr Justice Keene said:
“I take the point that the statutory appeal to the Secretary of State against a refusal of planning permission provides no compensation for the delay which inevitably occurs. However, the fact is that wherever there is a right of appeal to a minister of the Crown ... there will inevitably be some delay if the right is exercised, as it often will be, and where there is such delay, loss may very well result as it has in the present case. Yet Parliament has chosen expressly to exclude jurisdiction on the part of the Local Government Ombudsman in such cases. It seems to me that in those circumstances Parliament must have contemplated that there would arise situations where loss has 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.”
In cases where there is delay, inevitable or not, in the process of appealing the Ombudsman would have no jurisdiction to consider whether the proviso should be exercised.
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Grounds for rejection
where a complainant has already resorted or resorts after an investigation has begun to an alternative right or remedy – s26(6), s24A or both? (see section on Ombudsman’s discretion)
Note In judicial review the right is exercised when the complainant makes his/her application to the court.
Where the complainant had already resorted to an alternative right or remedy, the complaint should be rejected under s26(6).
Where the complainant resorts to an alternative right or remedy during the course of an investigation the decision should be made under 24A. This accords with the decision of the Court of Appeal in R v Commissioner for Local Administration ex parte Croydon LBC (1988). The decision to discontinue should be made as if 26(6) did apply. (This will avoid the anomalous result that a complainant can enjoy the benefit of the Ombudsmen’s discretion provided he/she waits until an investigation is underway before embarking upon an alternative right or remedy).
Where there is some separable element in the complaint which might not have been dealt with in the court proceedings, but there are reasons why the complaint should not be investigated, these should be explained. Reference should be made to s26(6) and s24A).
In cases where there is uncertainty whether the matter was dealt with in the proceedings it is advisable to use both subsections explaining the reasons.
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Where the complainant disputes that his/her complaint was dealt with in proceedings
In this case it would usually be prudent to refer to both s26(6) and Ombudsman’s discretion ensuring that the reasons for the decision are given to the complainant.
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Where the complainant has been or is being litigated against in proceedings which have been instigated by the council
In these cases s26(6) would not apply. The decision whether to initiate, continue or discontinue an investigation should be made under s24A (see section on Ombudsman's discretion).
A decision to discontinue may be appropriate where the matter has been or might be litigated to such an extent that there would be no useful purpose to be served by investigation or an investigation might stray on to matters decided or to be decided by the court (see Part II).
See Part II for guidance on counter claims including claims about the breach of the Human Rights Act 1998 which are raised in proceedings brought by the council.
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Date Updated: 25/06/10