THE QUEEN (on the application of Ridvan Maxhuni) v The Commissioner for Local Administration for England [2002] EWCA Civ 973

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION - ADMINISTRATIVE COURT)
(Mr Justice Cresswell)
[2002] EWCA Civ 973Case No Case No: 2001/2361Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
THE QUEEN (on the application of Ridvan Maxhuni)AppellantThe Commissioner for Local Administration for EnglandRespondent
Before
Lord Justice Simon BrownLord Justice DysonSir Swinton ThomasA Nicol Esq, QC & Simon Cox Esq(instructed by Messrs Hereward & Foster) for the AppellantBrian Ash Esq QC & Ms Gillian Carrington(instructed by Messrs Pulvers) for the RespondentDate 12 July 2002

Lord Justice Simon Brown:

Part

[1]III of the Local Government Act 1974 (“the Act”) provides for the investigation of complaints into local government administration. Under section 26(1) of the Act a Local Commissioner is empowered to investigate complaints of injustices sustained in consequence of maladministration. He has, however, a wide discretion whether to initiate such an investigation and, if he does, whether or not thereafter to continue it. Section 26(10) of the Act provides:
“In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the preceding provisions of this section, act at discretion; …”
[2]So far, so good. No point arises here on the exercise of that discretion. Rather, the question arising on this appeal concerns the Local Commissioner’s duty under section 30 of the Act in the event that he initiates but thereafter discontinues an investigation. Section 30(1) provides:
“In any case where a Local Commissioner conducts an investigation, or decides not to conduct an investigation, he shall send a report of the results of the investigation, or as the case may be a statement of his reasons for not conducting an investigation - (a) to the person, if any, who referred the complaint to the Local Commissioner …, and (b) to the complainant, and (c) to the authority concerned ….”
[3]The issue before us is whether a Commissioner who initiates but later discontinues an investigation under section 26 is obliged under section 30 to produce a report.[4]Cresswell J below, on the appellant’s renewed oral application for permission to move for judicial review, held not (as had Stanley Burnton J when originally the application was considered on the papers). On 4 January 2002, however, Sedley LJ gave permission to appeal (solely on that issue) and ordered the case to proceed in this court, stating:
“I consider it cogently arguable that the statute gives the Commissioner no option of discontinuing an investigation without reporting, even though the report may not resolve the merits and may simply record the events leading to discontinuance.”
[5]Since that permission was granted, the particular Local Commissioner who discontinued the investigation commenced into this appellant’s complaint (in fact the Chairman of the Commission, commonly known as the Local Government Ombudsman, Sir Edward Osmotherly) has retired and his successor, Mr Richmond, having reconsidered the matter, has decided to continue the investigation in any event. The issue in question, however, although strictly now academic as between the parties, is nonetheless of very considerable general importance. In the year 2000/2001, 3,727 investigations were begun but, as a result of local settlements, later discontinued, that figure representing 31.8% of the total number of complaints made. If a report is issued under section 30, the authority must make copies available for public inspection (section 30(4)), supply a copy of the report on request and payment of a reasonable charge (section 30(4A)) and advertise the availability of the report (section 30(5)) - subject in all cases to the Local Commissioner’s discretion under section 30(7) to direct the contrary. Further obligations are placed on authorities by sections 31 and 31A “where a Local Commissioner reports that injustice has been caused to a person aggrieved in consequence of maladministration”. There are, in short, important consequences in terms of publicity and transparency attaching to the production of a report under section 30 of the Act. There is accordingly good reason why this appeal should proceed notwithstanding that this particular appellant will no longer be affected by it and I so directed on the papers on 29 th May. As Lord Slynn observed in R -v- Home Secretary ex parte Salem [1999] 1 AC 450 , 457:
“… appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
That example fits this case like a glove.[6]Such being the nature of this appeal, its particular facts are, of course, wholly immaterial. I do no more than record, and that simply because it is conventional to do so, the barest details of the case. The appellant’s complaint was made on 8 November 1999. It concerned successive delays by the London Borough of Newham in dealing with housing benefit claims. It was made not only on the appellant’s behalf but on behalf also of 96 other residents at the hostel for the homeless where he resided. On 2 February 2001 the Commissioner expressed himself satisfied that the local authority’s proposals for compensating those affected provided a reasonable remedy for the complaint and that he had decided to discontinue his investigation into it. He declined in the result to publish a report. The judicial review challenge was brought on 1 May 2001. I need only note that it was advanced on substantially wider grounds than that for which permission was finally given.[7]I return, therefore, to section 30(1) of the Act which, it will readily be seen, lies at the heart of this appeal. It provides expressly for two specific events: i) where a Local Commissioner “conducts an investigation” he must “send a report of the results of the investigation” to those referred to; ii) where a Local Commissioner “decides not to conduct an investigation” he must send “a statement of his reasons for not conducting an investigation”.[8]It seems clear to me, and is indeed common ground, that if the Commissioner commences but then discontinues an investigation, that circumstance must fall within (i) or (ii): it must result either in a report of the results of the investigation or in a statement of the Commissioner’s reasons for not conducting an investigation. The question is which? Clearly it all depends upon what the sub-section means by the word “conduct”. Does this mean merely “initiate” (to use the word used in section 26(10)) or does it mean initiate and continue to completion? If, of course, it means merely initiate, then, at whatever date the investigation may be discontinued, the Commissioner must report upon its results. If, however, it means not merely embark upon but also complete, then the Commissioner must instead, if he discontinues the investigation, explain why.[9]I have come to the clearest conclusion that the respondent’s construction is to be preferred. By the same token that the Commissioner has to explain why he never embarked upon an investigation in the first place, so too in my judgment it makes obvious good sense that he should be required to explain why he has chosen to discontinue an investigation. The “results” of an investigation, however, are something quite different: they necessarily are the product of a completed rather than an incomplete investigation. The investigation is, as stated, into a complaint of injustice sustained in consequence of maladministration. The results will state whether or not, and for what reasons, the complaint has either been upheld or rejected - whether, in the language of section 31 of the Act, “injustice has been caused”. Mr Nicol QC invited us to read the word “results” as including the circumstances in which an investigation comes to be discontinued and not merely the outcome of an investigation with regard to the merits of the complaint. It is not an invitation which I for my part feel able to accept.[10]One case only may be thought to have some limited bearing on the question now before us, the Divisional Court’s decision in R -v- Commissioner for Local Administration, ex parte Croydon LBC [1989] 1 All ER 1033. A question arose there as to whether the Commissioner ought to have discontinued his investigation at the point when, having already embarked upon it, it appeared to him that the complainant might have a remedy by way of judicial review. Section 26(6) (as well as section 26(10)) was in point:
“26(6) A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say (a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment; (b) any action in respect of which the person aggrieved has or had a right of appeal to a Minister of the Crown …; or (c) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law: Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort or have resorted to it.”
[11]Woolf LJ, giving the only reasoned judgment in the Divisional Court, at p1044 said this:
“The other important feature to observe with regard to s 26(6) is that it is not clear from its language whether it is only a threshold requirement or whether it applies at any stage of an investigation. Counsel for the commissioner submits that it only applies at the stage when the commissioner is deciding whether or not to conduct an investigation and once he has embarked on an investigation it has no application. On balance I agree that s 26(6) is directed to the threshold requirement. However, I do not regard this as being significant, because the commissioner has a continuing discretion not to continue, and to discontinue an investigation. Therefore, even if s 26(6) does not expressly deal with the subsequent stages after the commencement of an investigation, in exercising his discretion under s 26(10) whether to discontinue an investigation the commissioner should approach the matter very much in the same way as he would if s 26(6) did apply. If it becomes apparent during the course of an investigation that the issues being investigated are appropriate to be resolved in a court of law, then giving effect to the general intent of s 26(6), the commissioner is required to consider whether, notwithstanding that, it is appropriate to continue with the investigation broadly on the lines indicated in the proviso to s 26(6). When performing this exercise the extent to which the investigation has proceeded is a relevant consideration for the commissioner to take into account in deciding whether or not to discontinue the investigation.”
[12]Woolf LJ’s view “that s 26(6) is directed to the threshold requirement” and “does not expressly deal with the subsequent stages after the commencement of an investigation” may be thought to provide a scintilla of support for Mr Nicol’s argument that when the draftsman of this legislation refers to a commissioner “conduct[ing] an investigation” (the language of both section 26(6) and section 30(1)), he is referring to the commissioner embarking upon, rather than embarking upon and thereafter continuing, an investigation. I am very far from persuaded, however, that on the basis of the Croydon case I should alter my conclusion (expressed in paragraph 9 above) as to the true construction of section 30. Rather I would if necessary over-rule Croydon . But in truth, of course, this is not necessary. Even assuming in Mr Nicol’s favour, as I am inclined to do, that the words “conduct an investigation” fall to be construed identically in both sections 26(6) and 30(1), Woolf LJ’s view was expressly stated to be merely “on balance” and in any event “not significant”. The reason why the point there was of no importance was that, in any case where the possibility of an alternative remedy only becomes apparent after an investigation has been embarked upon, the commissioner will approach the exercise of his discretion whether or not to continue it no differently irrespective of whether the discretion arises under the proviso to section 26(6) or under section 26(10). True, as Mr Nicol points out, the section 26(10) exercise of discretion requires the commissioner to have regard to how far his investigation has already proceeded. Woolf LJ made that clear. But even if, as I would be disposed to conclude, the discretion to be exercised is rather that under the section 26(6) proviso, that same consideration would inevitably form part of “the particular circumstances” of the case. That too, Woolf LJ clearly appears to have recognised. In the end, therefore, Croydon provides no real assistance.[13]The point at issue is a short one. Cogently argued though the appellant’s contention was, I can only repeat that in my judgment section 30(1) falls to be construed as Cresswell J held below: a report is required only when an investigation has been completed; anything short of that (in other words a determination either not to embark upon an investigation or subsequently to discontinue it) requires only a statement of reasons why.[14]I would accordingly dismiss this appeal.

Lord Justice Dyson :

[15]I agree. Sir Swinton Thomas :[16]I also agree.

Order

Appeal dismissed; appellant’s costs to be assessed in accordance with the Community Legal Service (Costs) Regulations 2000. (Order does not form part of the approved judgment)

Cited in 1 later judgment