I have myself been the subject of judicial review and so have the other Local Government Ombudsmen for England. So I know that the experience is invigorating but it is not, to my mind, a habit-forming one.

The overlap between Ombudsmen and judicial review

In May 1995, Mrs Thomas - the Local Government Ombudsman for the north of England - issued her report on the investigation of a complaint about the way Liverpool City Council had considered a planning application. The application had been made by Liverpool Football Club and was for an extension to an existing stand at the Anfield Road end of the Football Stadium. The Ombudsman found that seven councillors had breached the National Code of Local Government Conduct by voting in favour of the application without declaring their interest as season ticket holders or, in one case, as a regular attender. The Ombudsman also found that the two main political parties had applied a "whip" to the way in which their members should vote on the application. She found that applying a whip in this case amounted to maladministration.

Liverpool City Council did not agree with the Ombudsman's conclusions and was granted leave for judicial review. In the High Court, Mr Justice Hooper refused the City Council's application to quash the Ombudsman's report. The City Council appealed to the Court of Appeal.

One of the questions considered by the Court of Appeal ( R v Commissioner for Local Administration ex parte Liverpool City Council, The Times, 3 March 2000) was whether the Ombudsman should have investigated the complaint because judicial review of the Council's decision might have been possible.

Section 26(6) of the Local Government Act 1974 provides that a Local Government Ombudsman should not conduct an investigation of any action of which the person aggrieved has or had a remedy by way of proceeding in any court of law unless the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person aggrieved to have resorted or to resort to court proceedings.

Commenting on this in the Liverpool case, Lord Justice Henry said that:

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

Lord Justice Henry said that:

"In my judgement this was a clear case for the application of the proviso [ie the exercise of the discretion to investigate despite the availability of judicial review]. Serious allegations of maladministration had been made. Such allegations could best be investigated by the resources and powers of the Commissioner, with her powers to compel both disclosure of documents, and the giving of assistance to the investigation. The Commissioner was in a position to get to the bottom of a prima facie case of maladministration, and the ratepayers would be unlikely to have reached that goal, having regard to the weakness of the coercive fact finding potential of judicial review. As she found, it would be very difficult, if not impossible, for the complainants to obtain the necessary evidence in judicial review proceedings. Additionally, the complainants were a group in modest housing, unlikely to have the means to pursue the remedy. The Commissioner was clearly right to use the proviso to continue her investigation. This case is a good example of a case where the Commissioner's investigation and report can provide the just remedy when judicial review might fail to; and can reach facts which might not emerge under the judicial review process."

As Lord Justice Henry said, judicial review is now so elastic that many of the 17,500 complaints we received last year might have been amenable to judicial review.

In thousands of cases every year, therefore, we are acting as an "alternative" to judicial review. But, as I shall explain later, by "alternative" I do not mean that we are or should be a substitute - a true alternative - for judicial review or vice versa.

Examples of Ombudsmen cases

What sort of cases are we talking about? Examples include:

• delay in conducting a statutory assessment of a child's special educational needs or failure to make the provision specified in the child's Statement of Special Educational Needs;
  
  
• denial of the opportunity to challenge a decision on entitlement to housing benefit by failing to notify the claimant of the assessment and to tell the claimant how to ask for a review;
  
  
• taking irrelevant considerations into account when deciding to approve a planning application;
  
  
• delay in doing repairs to the complainant's council house;
  
  
• failure to conduct an appeal for the admission of a child to a school of the parent's preference in accordance with case law and the relevant Code of Practice;
  
  
• failure to consider complaints about a nuisance in accordance with the Environmental Protection Act 1990 or the council's own policy;
  
  
• defects in the way assessments of community care needs are done or failure to make the provision decided as a result of such an assessment;
  
  
• defects in assessing the suitability of housing for a homeless person to whom the council owed a duty;
  
  
• not dealing properly with allegations that children have been sexually abused; and
  
  
• failing to consult properly about proposals to divert or close a footpath.

As I understand it, judicial review would be available in all these examples, which are taken from complaints I have investigated.

The main differences

There are fundamental differences between judicial review and the work of the Ombudsmen. The main differences are as follows.

• The courts can give a definitive interpretation of the law. Ombudsmen cannot. They act on what they understand the law to be but that is a world away from declaring the law as only the courts can.
  
  
• The Ombudsman's function is to deal with complaints that "injustice" has been caused by "maladministration". Neither "injustice" nor "maladministration" has a statutory definition. Parliament left it for the Ombudsman to decide the meaning of the words. In considering what "maladministration" is, the courts have quoted with approval what Richard Crossman (then Lord President of the Council) said in the debates on the Parliamentary Commissioner Bill in 1967. Mr Crossman said that "maladministration" included "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and so on". The "and so on" deserves comment. Lord Denning said "It would be a long and interesting list, clearly open-ended, covering the manner in which a decision is reached or discretion is exercised..." ( R v Commissioner for Local Administration ex parte Bradford City Council [1979] 1 QB 287).
  
  
• The courts' rulings are binding and enforceable. The Ombudsmen make recommendations which are not binding. But our recommendations are almost always accepted in full.
  
  
• The courts apply and enforce very tight deadlines for making applications for judicial review. The application must be made promptly and certainly within 13 weeks. By contrast, complaints to the Ombudsmen should be made within 12 months of the complainant first having notice of the subject of the complaint; and the Ombudsmen often exercise their discretion to investigate a complaint made "out of time".
  
  
• The courts can quash a decision and stay action. Ombudsmen cannot. On the contrary, section 28(4) of the Local Government Act 1974 says that:

  "The conduct of an investigation under this Part of this Act shall not affect any action taken by the authority concerned, or any power or duty of that authority to take further action with respect to any matters subject to investigation".

  It is interesting that the local authorities sometimes decide to defer action - for example, whether to charge for a community care service - until the result of our investigation about the matter is known.

• There is provision for appeal against decisions in judicial review proceedings. There is no right of appeal against an Ombudsman's decision. While the decision is subject to judicial review, the judges have shown commendable restraint in resisting the temptation to substitute their judgement for the Ombudsman's on the merits of the complaint.
  
  
• The proceedings in judicial review are adversarial and they are conducted in public. By contrast, Ombudsmen's investigations are inquisitorial, and, by law, are conducted in private.
  
  
• In judicial review, the onus is on the parties to obtain evidence and to decide what information to present. Ombudsmen themselves go out to find the information and have more scope than the courts to ferret out the facts.
  
  
• In judicial review, the unsuccessful party may be ordered to pay the costs of the other side. The Ombudsman's investigation is provided without charge to either party and no-one need be legally represented or produce their own expert evidence.
  
  
• Judicial reviews are conducted in accordance with procedural rules. But, as section 28(2) of the Local Government Act 1974 puts it:

  "The procedure for conducting an investigation shall be such as the [Ombudsman] considers appropriate in the circumstances of the case" and the Ombudsman "may obtain information from such persons and in such manner, and make such inquires, as he thinks fit".

• Compensation is rarely awarded in judicial review proceedings. The Ombudsmen often recommend a financial remedy.
  
  
• Finally, the courts are bound by precedent. Ombudsmen are not, although obviously we make great efforts to be consistent and could be open to judicial review if we acted inconsistently without good cause.

So there are some major differences.

Notable similarities

But there are notable similarities.

Neither judicial review nor an Ombudsman's investigation provides a means of appealing against the merits of a decision.

Both are concerned with the way a decision or action was taken. The court and the Ombudsman will consider whether the way the decision was taken:

• was lawful;
• was procedurally proper;
• took into account irrelevant considerations or failed to take into account relevant considerations; or
• was otherwise unreasonable (ie perverse or irrational).

Does the Ombudsman provide an alternative to judicial review?

My answer would be "yes" and "no".

The Ombudsman will not investigate if the dispute turns on a point of law or statutory interpretation. That is exclusively a matter for the courts. In urgent cases, the courts can provide "interim relief": the court can order the public authority to stop or start doing something pending a full hearing of the dispute. The Ombudsman cannot nor can he or she quash a decision. An Ombudsman can, however, make recommendations for changes to administrative systems in the way the courts cannot. And Ombudsman can obtain for a complainant payments for distress caused by maladministration. An Ombudsman's investigation can produce a comprehensive explanation about what happened in a way that judicial review proceedings rarely can.

In these ways, judicial review and Ombudsman investigations are not alternatives.

But in another sense they can be alternatives. Both are concerned with the resolution of disputes. Take, for example, a parent who is dissatisfied with an education authority's delay in assessing her child's special educational needs. She could seek judicial review. The court could order the education authority to start or complete the assessment. Or the parent could complain to the Ombudsman who, after investigating, could persuade the education authority to do the assessment through either an informal settlement or a formal report.

To give another example, a council tenant might be in dispute with his council about whether the housing he was offered was or was not "suitable" for the needs of his family. That dispute could be resolved either through judicial review or an Ombudsman's investigation.

The considerations the court and the Ombudsmen would take into account would be similar. But they would not be identical. The Ombudsman might take account of the resources available to the council in a way the court might not. And "maladministration" is a very elastic concept; for example, it can include insensitivity in the way the public authority behaved as well as the wrongfulness of the way the decision was taken.

Moreover, Ombudsmen can deal with disputes after the original cause of dissatisfaction has been removed. For example, after a year of argument, the council agrees that the housing is not suitable for the family and makes an acceptable offer of other accommodation. But the tenant still feels angry about the effects of the delay on his family. The Ombudsman can investigate the facts of the case and, if the delay was caused by maladministration, can recommend a payment to recognise the injustice caused by the delay and recommend administrative changes designed to prevent similar problems in future. Judicial review could not do that.

Conclusion

For some disputes, judicial review is the only suitable means of obtaining redress; for example, where the dispute turns on a point of law. In other cases, judicial review can offer a better outcome. For example, where a binding decision is essential or urgent interim relief is required. But in other case, a dispute which could be the subject of judicial review proceedings is better dealt with by an Ombudsman's investigation. This would be the better course where, for example, the complainant does not know the full facts and could not obtain them through court proceedings. Or where the cost of judicial review would be disproportionate to the remedy sought. Or where the complainant was neither well off nor poor enough to be entitled to legal aid. Or where the just remedy is a full explanation, an apology and some financial redress. Or where there is a widespread failure in an administrative system which could not be identified satisfactorily without a detailed investigation. Or where the complainant is too vulnerable to cope with the adversarial nature of court proceedings. In such cases, recourse to the Ombudsman is usually to be preferred to judicial review.

It is inevitable that there will be disputes between citizens and the public authorities which serve them. The courts provide one means - in some cases the only proper means - to deal with disputes. But there are effective "alternative dispute resolution" mechanisms and the Ombudsmen are among them.

Edward Osmotherly CB
Chairman of the Commission for Local Administration in England
June 2000