Ombudsman's discretion and settlements
Section 24A covers this. See examples in 'related content' box.
This section gives authority for the Ombudsman to determine whether to initiate, to continue or discontinue an investigation. In this case he or she acts “at discretion”. For practical purposes, investigators should ensure that the reasons or justification for any decisions made under s24A are given to complainants. All decisions may be subject to judicial review.
The discretion may be exercised to reject a complaint where the maladministration and/or the injustice are slight. Alternatively, it may be apparent that an investigation is likely to achieve nothing for the complainant. Where the council agrees to offer a settlement which satisfies an Ombudsman and there are no general lessons to be learned, again the Ombudsman will usually decide to discontinue under s24A(7) without issuing a report.
A requirement to act reasonably and not irrationally is inherent in decisions involving the exercise of discretion.
The following principles are drawn from decided cases and should always be kept in mind by investigators:
While there is no rule that requires reasons to be given for a decision, the absence of reasons might cause a court to infer that the decision itself is arbitrary and unreasonable.1 In any event, the Ombudsmen would be likely to criticise a council which did not give reasons. The Ombudsmen expect decisions taken on their behalf to include an explanation of the reasons for the decisions.
Moreover, where reasons are not given and all other known facts and circumstances point overwhelmingly in favour of a different decision, the decision maker who gives no reasons cannot complain if the court draws the inference that s/he had no rational reason for the decision.2
The courts will need to be satisfied that the reasons given were proper, intelligible and adequate.3
------------------------------------
1 Padfield v Ministry of Agriculture (1968) AC 997
2 Secretary of state for Trade and Industry ex parte Lohnro (1989) 1 WLR 525
3 Save Britain's Heritage Poultry v Number 1 Poultry (1991) 1 WLR 153, 166, 167
Date Updated: 29/07/09