A recent High Court ruling could lead to greater weight being placed on Ombudsmen's recommendations.
In our increasingly litigious society, a complaint to the Ombudsman is typically viewed as a means of seeking a political, rather than legal, remedy in cases of maladministration. The process of officially 'naming and shaming' officials is, in this sense, seen as a sufficient outcome in itself.
However, in rare cases (such as the recent judicial review brought against the Department of Work and Pensions by a number of pensioners) the dividing line between the political and legal processes can become blurred. In the DWP case, decided at the end of February this year, the English High Court ruled that the Government had failed in its legal – not merely political – duties when it rejected the criticisms levelled at it by the UK Parliamentary Ombudsman.
The case had its origins in the Ombudsman's inquiry into the role played by the Government in the financial losses suffered by many pensioners who invested for their retirement in final salary occupational pension schemes, which subsequently became insolvent. Following an extensive investigation, the Ombudsman delivered a damning report to Parliament on the treatment of these individuals. The Government had, she found, been guilty of maladministration in publishing material containing inaccurate and misleading information about the level of financial security conferred by such pension schemes. She also recommended that the Government should consider whether to make arrangements to make good the losses suffered by the relevant workers, including via payments from public funds.
The Government rejected both the Ombudsman's findings – in particular the finding as to maladministration – and her recommendations. A sample group of the affected workers raised judicial review proceedings challenging this double rejection. In his judgement, Mr Justice Bean, upheld this challenge, quashed the Government's rejection decision and directed it to re-consider matters afresh.
Dealing first with the rejection of the maladministration finding, the judge held that the Government owed a legal duty "loyally to accept" the findings of the Ombudsman unless those could be objectively shown to be flawed or irrational. In that sense, the judge likened her fact-finding role to that played by an immigration judge or planning inspector within a larger administrative process. In the present case, the Ombudsman's findings could not reasonably be impugned in this way.
Turning to the subject of her contested recommendation, the judge recognised that it was common ground that these were not legally binding or 'mandatory' in nature. Nonetheless, he did find that the Government had essentially misdirected itself by declining to consider it on the ground that it had not been shown that, but for the maladministration in question, the affected workers would not have continued to invest in the risky schemes. In other words, the Government had acted irrationally (and thus unlawfully) by deciding that, absent proof of causation, it had no duty to consider the recommendation. In the judge's view, the absence of such a causal link could, but did not necessarily, lead to the rejection of the Ombudsman's recommendation.
The DWP has been considering the judgement since it was handed down and has recently confirmed that it will be appealing it to the Court of Appeal. It maintains that there are important constitutional issues at stake. Perhaps so, although given the narrow scope and limited reach of the ruling one might reasonably query whether it might have been better to have withdrawn gracefully at this stage.