WHAT IS PUBLIC LAW ( PART 13 )

By Law Teacher

12.1.1 Tribunals and Ombudsman – Introduction

Welcome to the twelfth topic in this module guide – Tribunals and Ombudsman! A tribunal is an institution or a person who has the authority to adjudicate on, judge, or determine disputes or claims. Tribunals have their own processes and rules and are usually fairly informal, in comparison to the courts. The reason why tribunals are of such importance in the current legal system is because they can provide specialist expertise of certain areas of public decision making in areas where ordinary courts might not have this same knowledge.

Tribunals have been established in the following areas: social security, education, tax, health, pensions, immigration and asylum, employment, transport and traffic, finance and criminal injuries compensation. Tribunals have been created in a somewhat haphazard fashion with little regard for a ‘system’; as such, the government has endeavoured to create a structure retrospectively by creating the Tribunal Courts and Enforcement Act 2007.

An ombudsman is an independent and impartial officer whose responsibility is to investigate actions of public authorities. Ombudsmen ordinarily intervene to investigate matters of maladministration and seek redress for individuals who have been treated badly or unfairly. In England, the Parliamentary Ombudsmen, the Health Services Ombudsmen, the Local Government Ombudsmen and the Independent Housing Ombudsmen tackle complaints under their areas of public responsibility.

Below are some goals and objectives for you to refer to after learning this section.

Goals for this section:

  • To understand the distinction between tribunals and judicial review.
  • To be able to identify under what circumstances an ombudsman will investigate a particular matter.

Objectives for this section:

  • To be able to understand how the current system of tribunals operates.
  • To be able to appreciate the role that ombudsmen play in the political process.
  • To be able to comprehend what a public inquiry is and why and how the process is instigated.

Four Pillars of Administrative Justice. Complaints Mechanisms of Public Bodies. Ombudsman. Tribunals. Courts [Judicial Review] Need for User Focus.

12.1.2 Tribunals and Ombudsman Lecture

Administrative justice defines the various institutions and procedures that are located within the wide area between government departments and courts of law. The chapter will consider the various tribunals that have been established to adjudicate various kinds of legal decisions, which have their own procedural regulations and series of precedents. Furthermore, the chapter will examine the operation of public inquiries in which government department have the dominant roles, but which key procedural regulations exist to maintain transparency and accountability. Also, considered in this section will be the Inquiries Act 2005. Finally, this chapter will cover the role of Ombudsmen.

A. Tribunals

Tribunals are statutory bodies which hear and make decisions on appeals by members of the public against first instance decisions made by government bodies. A tribunal can then determine the appeal of the official decision and substitute its own decision for the initial decision-maker.

Tribunals are of great significance in the current legal system as they are able to provide specialist knowledge of particular areas of public decision making in areas where ordinary courts may not have this specific expertise.

Tribunals have been created on an ad hoc basis in specialist areas of government with little consideration of the need to establish a ‘tribunal system’. Government policy has latterly attempted to provide a coherent structure to these bodies (Tribunals Courts and Enforcement Act 2007).

The System of Tribunals

There currently exist a diverse array of tribunals that operated in different areas. Most tribunals are required to adjudicate disputes between state actors and a private individual or company. There are other tribunals, which adjudicated disputes between two sets of private individuals.

Tribunals are statutory creations and ultimately a tools of government policy, hence the makeup and composition of the tribunal system is subject to change dependent upon the present government and the particular policies which the majority political party wishes to implement.

Tribunals and Judicial Review

Both tribunals and judicial review offer means by which individual can challenge the decisions of government bodies. The distinction between judicial review and the tribunal system is an important one; during the process of judicial review the court can only make a determination on the lawfulness of a government decision, whereas tribunals are able to carry out a merits appeal.

The Reorganisation of Tribunals

A major review of tribunals was conducted in 2001. The Leggatt review found a total of 70 different tribunals in England and Wales. The report observed that the tribunal system in England and Wales had been established in a haphazard fashion and that there was a lack of systematic integration of its many elements. The Leggatt review proposed a single tribunal system administrated by an integral tribunal service, and be separated into various divisions according to their subject matter. The review also proposed a general second tier tribunal to hear appeals since the existing system created a confusing array of right of appeal from the various first tier tribunals.

The Tribunals, Courts and Enforcement Act 2007 (TCEA) aimed to implement the reforms that had been proposed within the Leggatt review. Part I of the TCEA established two new tribunals of a general nature, with the aim of replacing the majority of first tier tribunals and appellate tribunals. These were the First-tier Tribunals (FTT) which make first instance decisions and the Upper Tribunal to hear appeals from the FTT (s.3 TCEA). The TCEA also created the role of the Senior President of Tribunals, who was to be appointed by the Queen on the advice of the Lord Chancellor (s.2 TCEA).

The Senior President is responsible for the need for tribunals to be accessible, to be fair, quick and efficient and for there to be those working within the tribunals who have specific expertise in the area of law with which the tribunals is responsible (s.2 TCEA).

The FTT is now organised in a series of chambers, each headed by a judge as president. In September 2013, the First-tier Tribunal was comprised of six divisions. The Upper Tribunal is organised into four divisions.

The Upper Tribunal hears appeal from more than one chamber of the FTT, although the FTT has power to review its own decisions, which it may or may not refer to the Upper Tribunal.

Case in FocusR (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 and Eba v Advocate General for Scotland [2011] UKSC 29, 2011 SLT 768

Some tribunals remain outside the two-tier scheme created by the TCEA, these include:

  1. The Investigatory Powers Tribunal, created by the Regulation of Investigatory Powers Act 2000;
  2. The Proscribed Organisations Appeal Commission, created under the Terrorism Act 2000; and
  3. The Competition Appeals Tribunal, established under the Enterprise Act 2000

A tribunal system must be established under a statutory authority to be brought within the TCEA system. Private and domestic tribunals must exist outside the scheme, all bodies that hear appeals from local authorities may in future be incorporated within it.

The Administrative Justice and Tribunals Council was also created under the TCEA. The Council had the authority to review the administrative justice system, to review the constitution and working of specified tribunals, to keep the work of statutory inquiries under review.

Case in FocusBrowning v Information Commissioner [2013] UKUT 236 (AAC)

B. Public Inquiries

The public inquiry is an administrative process which became popular during the 20th century as government departments obtained powers to intervene in the matters of local authorities. The Franks committee in 1957 considered that the object of the inquiry procedure was twofold.

The Franks committee made the following series of recommendations:

  1. individuals should be warned in sufficient time of the case to answer within the inquiry;
  2. government policy reasons should be disclosed within the inquiry;
  3. the inspectors who were in control of the inquiry should be independent of the minister directly concerned with the particular proposal, they should be responsible to the Lord Chancellor;
  4. that the final decision should be announced with a letter from the inspector and the minister;
  5. this letter should contain full reasons for the decision;
  6. that the ability to challenge the decisions would be made available on the grounds of jurisdiction and procedure in the High Court.

These proposals were accepted except for the fact that the inspectors were not transferred to the Lord Chancellors department and this is how inquiries operate within the present time.

Rules of Procedure for Public Inquiries

The Lord Chancellor has the powers under the Tribunals and Inquiries Act 1992, section 9 (amended) to create rules which regulate the procedure for statutory inquiries. If a minister proposes not to follow an inspectors recommendations due to new material that arises after the close of an inquiry, the public authority and objectors must be informed as they have the right to request that the inquiry is reopened. E.g. Chalk Pit Affair.

The rationale for the procedural rules is to establish fairness and transparency within the process of the inquiry. These rules are enforceable in courts and they are derived from principles of natural justice, which can be statutory or common law.

The Changing use of Public Inquires

The role of inquiries has diminished in recent years. Increased involvement of the legal profession in inquiries had led to delays in the decision making process. Steps were made to restrict the use of public inquires, including ss 100-1 Planning and Compulsory Purchase Act 2000.

The Inquiries Act 2005

The Inquiries Act 2005 deals with legal provision for the investigation of national disaster or major scandal. The Act provided a new legal framework for inquires and repealed the 1921 Act.

C. Ombudsmen

There are public and private sector ombudsmen, this section is concerned with the former. The system of Ombudsmen in England is fragmented with various Ombudsmen dealing with complaints, which related to various areas of public responsibility. These include:

  1. the Parliamentary Ombudsmen;
  2. the Health Services Ombudsmen;
  3. the Local Government Ombudsmen;
  4. the Independent Housing Ombudsmen Service.

The models in Scotland and Wales provide more integrated alternatives to the English approach.

In 2000 a Review of the Public Sector Ombudsmen in England: A Report by the Cabinet Office, concluded that an integrated model should be adopted in England by merging the Parliamentary, Health Services, Local Government and Independent Housing Ombudsmen.

The Role of Public Sector Ombudsmen

The principle role of ombudsmen is to achieve redress for individuals who have experienced harm due to maladministration. There is also a quality control function of the ombudsmen, in order that broader systematic issues within public authorities should be addressed.

Ombudsmen and the Political Process

The relationship between the Ombudsman and Parliament has been developed in a number of ways to the functions which it now establishes. The Ombudsmen now carry out the following functions in relation to the political process:

  1. To report to Parliament each year on the performance of functions under the Parliamentary Commissioner Act 1967 and otherwise as is necessary.
  2. The Ombudsman can draw a matter to Parliament’s attention when it determines that maladministration has taken place and the relevant public body will not remedy it.
  3. The Public Administration Select Committee of the House of Commons has a special relationship with the Parliamentary Ombudsman. The Committee both scrutinises the Ombudsman’s work and applies political pressure onto government to accept the recommendations of the Ombudsman.
  4. A controversial element of the Ombudsman’s role is the so-called MP-filter. The Ombudsman may investigate a complaint, but this needs to be referred by the complainants MP. This distinguishes the Parliamentary Ombudsman from other UK public sector ombudsmen to whom an individual can complain directly.

Investigations by Ombudsmen

There are specific procedures that must be followed to consider whether an Ombudsman will investigate a particular matter. The Parliamentary Ombudsman is authorised to investigate public bodies, which are listed under schedule 2 Parliamentary Commissioner Act 1967.

There are matters which are excluded from the relevant ombudsman’s jurisdiction to investigate (schedule 3 Parliamentary Commissioner Act 1967). Contractual and Commercial transactions are excluded under sch 3, para 9, which proves particularly controversial since the spending of large amounts of public money is likely to impact upon certain individuals. Since the contracting out of service provision has become increasingly common, the exclusion is becoming ever more far reaching in its scope.

The next stage in the investigation is to consider whether maladministration occurred. The ombudsman can investigate complaints from individuals who claim to have sustained ‘injustice in consequence of maladministration’. (s. 5(1)(a) Parliamentary Commissioner Act 1967).

More recently, the Parliamentary Ombudsman has moved away from the concept of maladministration into defining the positive concept of good administration. This includes

  • Getting it right
  • Being customer focused
  • Being open and accountable
  • Acting fairly and proportionately
  • Putting things rights
  • Seeking continuous improvement

[Parliamentary and Health Services Ombudsmen, Principles of Good Administration, (London, 2009)]

After considering whether maladministration has occurred the ombudsman must go on to consider whether this maladministration has led to an injustice towards the complainant.

Case in FocusR v Parliamentary Commissioner for Administration, ex p Balchin (No.1) [1997] JPL 917, 926

As public bodies, ombudsmen are themselves amenable to judicial review.  If ombudsmen exceed the scope of their discretionary powers, the courts are able to rule their decisions as unlawful. The ombudsmen’s discretion to undertake an investigation is also subject to judicial review. However, this aspect is subject to a number of judicial decisions and qualifications.

Cases in FocusR v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All ER 1033

Courts have also been willing to limit the scope of an ombudsman’s investigations.

Case in FocusR (Cavanagh) v Health Service Commissioner for England [2005] EWCA Civ 1578; [2006] 1 WLR 1229

Finally, courts may scrutinise and apply the normal principles of judicial review as to whether an ombudsman’s decision-making and conclusions are lawful.

Case in FocusR v Parliamentary Commissioner for Administration, ex p Balchin (No.1) [1997] 917 (No,2) (2000) 79 P & CR 157; (No 3) [2002] EWHC 1876 (Admin)

12.1.3 Tribunals and Ombudsman Lecture – Hands on Examples

The following problem questions provide example questions that can test your knowledge and understanding of the topics covered in the chapter on Tribunals and Ombudsman. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Q1 Problem Question

As a result of the government’s austerity cuts in England and Wales significant cuts have been made to the allocation of spending in the NHS which has led to cuts in mental health services. As a result of these cuts it has been reported that people with mental health conditions are experiencing significant deteriorations in their state of mental health and the number of attempted suicides has risen. The Health Services Ombudsman has received 1,000s of complaints relating to the deterioration in people’s mental health as a result of the withdrawal of certain vital services including counselling services available through GP’s and certain medication that has previously been prescribed by GP’s to mental health patients.

A. How is the Health Services Ombudsman likely to deal with these complaints?

B. The Health Services Ombudsman finds that there has been maladministration and concludes that a specific complainant ought to have been treated using electro-convulsive therapy rather than referral to counselling or drug therapies, how might a court react to this decision of the Ombudsman?

Q1 A. Suggested Answer

The Health Services Ombudsman may deal with the complaints under a full investigation or reject them, or deal with them in an informal manner in relation to the relevant public body.

Since there are over 1,000 complaints relating to this specific issue it is likely that the Health Services Ombudsman will review the wider issue and investigate whether there is a general policy failure in a specific area.

The specific body, which is under consideration, must be listed within Schedule 2 Parliamentary Commissioner Act 1967.

The Health Services Ombudsman must consider whether there are any relevant exclusions in relation to their jurisdiction to investigate a particular matter; this includes contractual and commercial transactions under schedule 3, para 9 1967 Act. There may be difficulties if the health service has contracted out certain mental health services.

The Health Services Ombudsman will then need to consider whether ‘maladministration’ has occurred. This may be a difficult question in the circumstances since the prioritisation of government spending does not amount to maladministration; there must be one of Richard Crossman’s list: ‘bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on’ [Hansard HC Deb, vol 734, col 51].

Since 1993, it is also relevant to consider rudeness, denying an individual’s rights, knowingly giving misleading on inadequate advice, offering little or no redress, faulty procedures, failure to monitor compliance with correct procedures, disregard for guidance on fair treatment, failure to mitigate inflexibility leading to unequal treatment.

It is clear that there must be some malpractice on behalf of the public officials, not merely an unpopular decision which is made within the confines of their lawful powers.

In 2009, the Parliamentary and Health Services Ombudsmen published Principles of Good Administration, which highlighted the positive concept of good administration. The elements of good administration include: Getting it right, Being customer focused, Being open and accountable, Acting fairly and proportionately, Putting things right, Seeking continuous improvement.

If the Health Services Ombudsman finds that maladministration has occurred, they must then consider whether it was that led to an injustice experienced by the claimants. It is important to note that this notion of ‘injustice’ is broader than a strictly legal form that is considered within court proceedings.

In R v Parliamentary Commissioner for Administration, ex p Balchin (No.1) [1997] JPL 917, Sedley J held that an injustice could mean “the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss”. This may be the case if those with mental health problems have been subjected to maladministration. They may not be able to show any financial loss as a result of the withdrawal of mental health services, but may be able to show the injustice has occurred due to a sense of outrage in the manner in which they have been treated.

Q1 B. Suggested Answer

The Ombudsman’s role is not to investigate the clinical decision of the doctors, but to review the decision making process implemented by the relevant authorities. In R (Cavanagh) v Health Service Commissioner for England [2005] EWCA Civ 1578; [2006] 1 WLR 1229 the complainants brought their case to the Ombudsman claiming that the hospital had failed to provide continuing care for their daughter when a consultant to which she had been referred had had their hospital department closed. Instead of reviewing this decision, the Ombudsman chose to review the clinical decisions of the specialists treating the girl, arguing that she had been misdiagnosed and offered the wrong form of treatment. The court found that the Ombudsman had acted outside of its powers in investigating the clinical decisions. Thus, a judicial review of the Ombudsman’s actions in suggesting that the complainant with mental health problems should have been offered electro-convulsive therapies instead of counselling and drug treatment would be an act that exceeds their powers. They should have instead confined themself to a review of the decision of the government department to stop referring individuals for counselling and limiting prescriptions of drugs to help people with mental health problems.

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