Application by JR55 for Judicial Review (Northern Ireland) [2016] UKSC 22

The recommendations of an ombudsman are technically legally ineffective. At most, their recommendations are legally enforceable against public bodies bound by their public law duty not to ignore them without good reason. So said the Supreme Court in the recent judicial review application by JR55 (Northern Ireland).

In that case, the Complaints Commissioner in Northern Ireland had conducted an investigation into the death of the complainant’s husband, “R”. R, who was clinically asymptomatic at the time, had attended his GP to request a referral to have his heart checked. His GP referred him for an ECG, and thereafter, to the chest pain clinic. However, the clinic declined to give R an appointment and his GP failed to inform him. R attended his GP again to enquire why an appointment had not been arranged and was referred for another ECG. However, he sadly died later that day of a myocardial infarction.

Following investigations, the complaints commissioner made a finding of maladministration on the part of the GP practice. One of the recommendations in the commissioner’s report was that “the practice should pay the complainant £10,000 in respect of the clearly identified failings in the care provided to R”. When, after taking legal advice, the GP practice declined to pay the money, the commissioner threatened to issue a “special report” to the Northern Ireland legislature reporting the practice’s failure to comply.

The main questions for the Supreme Court to address were: (1) whether the commissioner has power to recommend payment of money to a complainant from a private body; and (2) whether, in the event that the sum was not paid, the commissioner had the power to make a “special report” to the legislature.

Both questions were answered unanimously in the negative. Recommending payment in this case was improper. The only basis on which the commissioner could undertake the investigation at all was that R’s widow did not seek any money. In any case, while the legislation allowed the commissioner to recommend payment out of public funds, recommending payment from a private practice’s “own pocket” was an entirely different matter. The court emphasised that the public duty on a public body not to reject the commissioner’s recommendations for no good reason could not apply to private bodies. Since it was inconceivable that those drafting the legislation would allow the commissioner to make recommendations against private bodies with absolutely no legal effect, the commissioner did not have the power to order the GP practice to make a payment.

The court also held that the power to issue a “special report” was confined to the Assembly Ombudsman for Northern Ireland, who had an entirely different constitutional status. The commissioner’s duties were to report to the complainant and to the bodies whose conduct was at issue, not the parliament.

This is a common sense decision which ensures that an ombudsman is prevented from usurping the role of the court in awarding compensation, and threatening enforcement by publicity. While the decision relates to the now defunct Northern Irish legislation, the judgment of the Supreme Court is likely to be highly persuasive in other UK jurisdictions which share a similar legislative framework.