“It will cover ‘bias, neglect, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’. The list is open-ended, but the type of behaviour that qualifies concerns the manner in which a decision is reached or a discretion is exercised, rather than the merits of that decision or of the discretion itself: R v Local Commissioner ex p. Liverpool CC[2001] 1 All ER 262 per Henry LJ at [3], adopting a passage in the judgment of Lord Denning MR in R v Local Commissioner for Administration for the North and East Area of England ex p.Bradford Metropolitan CC [1979] QC 287 at 311-312.”
“i) The Ombudsman has no duty to determine questions of law. He/she is not acting as a surrogate of the court in determining whether there has been unlawful conduct, but rather, investigating a complaint of maladministration under the powers conferred on him/her by statute. ii) Maladministration is a different concept from unlawfulness; consequently in determining whether the conduct complained of amounted to maladministration, the Ombudsman is not constrained by legal principles which would apply if they were determining whether that conduct was unlawful. iii) Unlawfulness is neither a precondition of, nor concomitant to a finding of maladministration; there may be maladministration without unlawfulness, and vice versa. iv) Even if, with the benefit of hindsight, it may seem obvious that the public body got something wrong, the Ombudsman must look at the question of maladministration on the basis of the information that the public body had at the relevant time, and not with the benefit of hindsight. v) It is for the Ombudsman to decide and explain what standards he or she is going to apply in determining whether there was maladministration, where there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach. vi) However the court will interfere if the Ombudsman fails to apply the standard that they say they are applying; vii) The question whether any given set of facts amounts to maladministration or causes injustice to a complainant is a matter for the Ombudsman alone. Whatever it may think about the conclusion reached, and even if it fundamentally disagrees that that conclusion, the Court may not usurp the statutory function of the Ombudsman. It can only interfere if the decision reached was irrational. viii) An Ombudsman’s report should be read fairly, as a whole, and should not be subject to a hypercritical analysis nor construed as if it were a statute or a contract.” (Emphasis in original text.)
“…it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable.”
“‘Injustice’ has been widely interpreted so as to cover not merely injury redressible in a court of law, but also ‘the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss’ (citing Mr RHS Crossman, speaking as Leader of the House of Commons).”
“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 aninvestigation. 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, the commissioner is required to consider whether, notwithstanding this, 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. Section 26(6) makes it clear that where there is a remedy in the sense which I have indicated, inter alia, in a court of law, the courts do not have sole jurisdiction and the commissioner may still intervene. On the other hand the general tenor of s 26(6) is that, if there is a tribunal…which is specifically designed to deal with the issue, that is the body to whom the complainant should normally resort. I suggest this approach is particularly important in the case of issues which are capable of being resolved on judicial review… …Issues whether an administrative tribunal has properly understood the relevant law and the legal obligations which it is under when conducting an inquiry are more appropriate for resolution by the High Court than by a commissioner, however eminent.” (Emphasis added.)
“(1) A local planning authority may decline to determine a relevant application if- (a) any of the conditions in subsections (2) to (4) are satisfied, and (b) the authority think there has been no significant change in the relevant considerations since the relevant event. ….. (4) The condition is that- (a) in that period the local planning authority have refused more than one similar application, and (b) there has been no appeal to the Secretary of State against any such refusal or, if there has been such an appeal, it has been withdrawn.” (a) any of the conditions in subsections (2) to (4) are satisfied, and (b) the authority think there has been no significant change in the relevant considerations since the relevant event. (a) in that period the local planning authority have refused more than one similar application, and (b) there has been no appeal to the Secretary of State against any such refusal or, if there has been such an appeal, it has been withdrawn.”
“The complaint refers to the outcome of the Judicial Review proceedings in respect of the second application which were opposed by the Council as it did not consider the allocation of the application to Ms Desmond gave rise to any actual or perceived bias. The Council’s procedures were followed in that it was not an application in which it was considered that Ms Desmond had any conflict of interest. Judge Jarman did consider that the decision was tainted by apparent bias. The Council does not agree with the Judge’s analysis of the facts. Nevertheless, he found that there had been no abuse of power and refused to grant the relief sought. Further, the Judge identified that there was a suitable alternative remedy. Despite being professionally represented, no planning appeal was submitted. The Council did comply with its procedures in that the application was not one in which the Case Officers was considered to have any conflict of interest; the decision was taken by the Planning Committee. The procedure followed and the decision of the Council were both capable of challenge within the statutory time limit. The fee was payable in order to be validated and you were advised of the risks in respect of both the decision and the fee, before the application was validated by the Council. In conclusion, the position is that the fee will not be repaid.”
“The reason the Court judgment in relation to the Second Application is relevant to this complaint is that the decision to decline to determine the Planning Application and the decision to refuse to return the Planning Application Fee are based on planning permission having ‘been refused for more than one similar application in the last two years’, whereas in fact, one of those refusals has been held to be unlawful.”
“The complaint simply relates to whether it was unreasonable of the Council to refuse to refund our client’s planning application fee following the Court judgment. The complaint therefore relates to the Council’s actions after the Court judgment was issued – i.e. in refusing to refund the planning application fee despite the Council knowing at that stage that a High Court Judge considered their errors during the previous application process to be unlawful. Whether the Court judgment that the Council acted unlawfully in the way it determined the previous planning applications means the planning refusals are ‘null and void’ is not actually relevant. It would be relevant if our clients were claiming that the Council acted unlawfully in declining to determine the third planning application. This is not, however, the basis of our client’s complaint – the complaint relates to the refusal to return the planning application fee.” (Emphasis in original.)
“The complaint is about the decision to refuse to return the planning application fee, not the decisions made on any of the three planning applications. The sole question for consideration by the Ombudsman is whether it was reasonable for the Council to refuse to refund the planning application fees, given the Court’s findings.”
“Whilst the Ombudsman is right to say that the Council did not consider exercising its discretion to refund the fee after the application was submitted, it was requested to consider waiving those fees before the application was submitted and it did consider whether there was a justification to do so… Without prejudice to whether, on analysis, there was such a power to waive fees…this discretion was exercised against the complainants, who were told there was no justification to waive fees. In these circumstances (a) it would have been entirely lawful and not maladministrative not to consider refunding fees after the submission of the application, and (b) there is no conceivable basis on which the Council, having decided not to waive the fees pre-application, should nevertheless decide to refund the fees post-application.”
“41. Having considered the representations made by both parties the Ombudsman has reached the view that it cannot make a finding of fault because independent legal advice supports the Council’s view that there are respectable legal arguments for saying that the Council does not have discretion in the circumstances of this case. 42. The Ombudsman finds that the uncertainty relating to the legal position as to whether there is discretion to refund the fee or not means: a) It would not be appropriate for him to make a definitive finding as to whether there is discretion to refund the fee or not. The Ombudsman considers that making a finding in this regard would place him at risk of making a legal determination or treading into the jurisdiction of the Courts. This is because the meaning of the planning guidance, relevant statutory provisions and case law is a matter of law given the uncertainty that arises. b) Even if it were open to the Ombudsman to consider whether or not to make a finding of maladministration, then given the Council’s position is supported by respectable legal arguments and with the benefit of legal advice, the Ombudsman does not consider that fault has occurred. Other parties may take a different view to the Council, but that does not mean the Council has acted with fault. It is important to note that the question of whether any particular set of facts amounts to maladministration is for the Ombudsman alone. c) Even if there was a discretion to refund the fee, it would be very difficult for the Ombudsman to reach a determination as to the reasonableness of the Council’s retention of the fee without forming an opinion as to the status of the prior planning applications. The Ombudsman has already decided that he cannot look at the validity of the previous planning applications. 43. Neither statute, associated guidance, nor case law provides clear and unambiguous authority that a discretion to refund the application fee exists. Given the ambiguity, the Ombudsman cannot say that the Council’s position that it has no discretion to refund the fee, having considered the question of whether such discretion exists, amounts to fault. Furthermore, the Ombudsman cannot determine legal matters and there is no good reason why the complainants cannot take the matter to court for a definitive determination.”
“Where an Act confers a power or imposes a duty it is implied , unless the contrary intention appears, that the power may be exercised, or the duty is be performed, from time to time as occasion requires…”
“this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.”
“I come finally to Miss Dyer’s complaint about the Commissioner’s refusal to re-open the investigation. This I can deal with altogether more shortly. It seems to me that the Commissioner is clearly correct in his view that, once his report had been sent to Mr Hattersley and the department (as required by section 10(1) and (2)) he was functus officio and unable to re-open the investigation without a further referral under section 5(1). Section 5(5), as already indicated, confers a wide discretion indeed; it does not, however, purport to empower the Commissioner to re-open an investigation once his report is submitted. It would seem to me unfair to the department and outside the scheme of this legislation to support that the Commissioner could do as Miss Dyer wished. That apart, however, it is plain that even if the Commissioner had had the power to re-open his investigation he would inevitably have refused to do so: he had long since decided not to investigate Miss Dyer’s further complaints and I have already held that he was entitled to limit his investigations in that way.”
“(1) Where a relevant authority consider- (a) that action taken by or on behalf of the authority in the exercise of their functions amounts to, or may amount to, maladministration, and (b) that a person has been, or may have been, adversely affected by that action, the authority may, if they think appropriate, make a payment to, or provide some other benefit for, that person.” (a) that action taken by or on behalf of the authority in the exercise of their functions amounts to, or may amount to, maladministration, and (b) that a person has been, or may have been, adversely affected by that action, the authority may, if they think appropriate, make a payment to, or provide some other benefit for, that person.”
“(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.”