We cannot investigate complaints where the PA has used an alternative right or remedy

Where there is an alternative right or remedy that hasn’t been used, we expect the PA to use this rather than the Ombudsmen, unless there are god reasons why they should not be expected to

Both the LGA 74 (section 26 (6)) and HSCA 93 (section 4) contain provisions to ensure people do not ask the Ombudsmen to intervene where they have already had recourse to an alternative right or remedy, or would be better served by doing so. In a nutshell, both Acts say:

The Ombudsmen will not normally investigate a complaint when someone could appeal a matter in court, to a Tribunal or to a Government Minister. However, the may decide to investigate if they consider it would be unreasonable to expect the person to go to pursue that alternative right or remedy.

The jurisdictional test (could we investigate) is separate from the discretionary test (should we investigate). 

Where someone has an alternative legal remedy, we would usually expect them to use it. We should only exercise our discretion over these issues after carefully exploring the reasons why it would not be reasonable for the person complaining to do so. The Court of Appeal have previously criticised the Parliamentary and Health Service Ombudsman for failing to properly consider whether it was reasonable for a complainant to pursue an alternative legal remedy before deciding to exercise his discretion. We may decide to exercise our discretion because:

• The complainant was unaware of the right of appeal and the authority failed to advise them of it.
• The complainant was prevented by absence, illness or some other incapacity from resorting to appeal.
• There is no possibility of bringing an out-of-time appeal and there are good reasons why the right was not exercised earlier.
• The legal costs are likely to be high compared with the benefit claimed (unless the complaint turns on a point of law which is unclear, or disputed statutory interpretation).

Where a complainant has recourse to an alternative right or remedy, and they specifically state that they do not seek any financial remedy from their complaint and only wish to achieve non-financial remedies, we should not specify a financial remedy. However, it is not a requirement for a complainant to tell us they specifically want a financial remedy from their complaint. If we decide, following our consideration of a complaint and any related injustice, that a financial remedy is appropriate then we can make such a recommendation as financial remedies are within the suite of recommendations the Ombudsmen can make, as set out in the Guidance on Remedies. Further details can be found here.

Any consideration about whether it is reasonable for a complainant to pursue an alternative right or remedy or where we decide to exercise our discretion should be properly recorded in Notes and Analysis and should also be briefly explained within the decision statement.

We have no jurisdiction to investigate if the complainant has already used their alternative legal remedy, unless those proceedings were misconceived. [Where proceedings that have been taken are misconceived the Ombudsman retains 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, claiming negligence by the council and seeking 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 because 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.]

The JWT needs to be mindful not to conduct an investigation which might trespass in any way on the jurisdiction of the courts, a government minister, or of any tribunals. In order to do this we need to consider three questions:

Careful consideration must be given where there is an alternative right or remedy. We should ensure we consider the different roles and powers those alternate bodies have when deciding whether a complainant has used, or it would have been reasonable for them to use that right of remedy. Please consider the Guidance on Jurisdiction for more information about how to consider the different rights or remedies.

What do we mean by ‘separable’?

There may be cases where an element of the complaint may be distinguished from the matter in respect of which the complainant had resorted to an alternative right or 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 Ombudsmen deciding matters which have already, directly or indirectly, been adjudicated on by a tribunal, minister or judge. A full explanation of the factors to consider when deciding if a matter is separable is contained in the Guidance on Jurisdiction.

If there is any doubt about whether ALR should apply in a particular case, this should be escalated to the Assistant Ombudsman.