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1 The formal title of Parliamentary Commissioner for Administration is rarely used today. In recent times the office of the Parliamentary Ombudsman has rebranded itself as the Parliamentary and Health Service Ombudsman. This reflects the fact that at all times the same person has occupied the position of Parliamentary Ombudsman and the Health Service Ombudsman for England.
2 Eg R.Gregory and J.Pearson, ‘The Parliamentary Ombudsman after twenty-five years’ [1992] 70 Public Administration 469; N.Lewis and P.Birkinshaw, When Citizens Complain: Reforming Justice and Administration, (1993) Open University Press: Buckingham; P.Birkinshaw, Grievances, Remedies and the State, second edition, (1994) Sweet and Maxwell: London; C.Harlow and R.Rawlings, Law and Administration,second edition, (1997) Butterworths: London.
3 Select Committee for Public Administration, Third Report, Ombudsman Issues HC 448 (2002-03), paras.4-5.
4 Cabinet Office, Reform of Public Sector Ombudsmen in England (2005) Cabinet Office Publications: London.
5 Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007.
6 Amendment 93, proposed by Lord Newton, HL Deb vol.689 col.303-305 31 January 2007.
7 Ann Abraham, The Ombudsman, the Constitution and Public Services:A crisis or an opportunity? Constitution Unit Seminar on the Ombudsman, 4 December 2006.
8 Eg J.D.B.Mitchell, ‘The Flexible Constitution’, [1960] Public Law 332.
9 Tribunal and Inquiries Act 1958.
10 For a contemporary account, see D.N.Chester, ‘The Crichel Down Case’, 32 [1954] Public Administration ,389.
11 Whyatt Report, Sir J.Whyatt, The Citizen and the Administration:The Redress of Grievances.A Report by Justice, (1961) Stevens: London.
12 Labour Party, Let's Go With Labour for a New Britain, (1964). For a full account of the debates and developments that preceded the 1967 Act, see R.Gregory and P.Giddings, The Ombudsman,the Citizen and Parliament, (2002) Politico's Publishing: London, chapters 2-5; F.Stacey, The British Ombudsman(1971) Clarendon Press: London.
13 W.Gwyn, ‘The British PCA: ombudsman or ombudsmouse?’, [1973] Journal of Politics 35, 45-69.
14 G.Marshall, ‘The British Parliamentary Commissioner for Administration’, Annals of the American Academy of Political Science, May 1968.
15 N.D.Lewis and R.James, ‘Joined-upJustice: Review of the Public Sector Ombudsmen in England’ [2000] The International Ombudsman Yearbook,vol 4, 109.
18 R v Parliamentary Commissioner for Administration, ex parte Dyer [1994] All ER 375. By this stage it had already been decided that decisions of the Local Government Ombudsman could be reviewed, R v Local Commissioner for Administration for the North and East Area of England, exp Bradford City Council [1979] QB 287.
19 R v Parliamentary Commissioner for Administration, exparte Balchin [1996] EWHC Admin 152; [1997] JPL 917; R v Parliamentary Commissioner for Administration, exparte Balchin (No2)[1999] EWHC Admin 484; [2000] JPL 267; R v Parliamentary Commissioner for Administration, exparte Balchin(No3)[2002] EWHC Admin 1876. A successful legal challenge has also been brought against the PO's sister ombudsman, the Health Service Ombudsman, Cavanagh others v Health Service Commissioner [2005]EWCA Civ 1578;Times,January 13,2005.
20 In this context, see also the case law on the Local Government Ombudsmen.
21 P.Giddings, ‘Exp.Balchin: findings of maladministration and injustice’ [2000] Public Law201.
22 For a description of the history of the Office and the use of the 1967 Act by the past post holders, see Gregory and Giddings, n 12 above.
23 Parliamentary Commissioner Act 1967, s.5(1).
24 G. Marshall, ‘Maladministration’ [1973] Public Law 32.
25 JUSTICE, Our Fettered Ombudsman (1977) JUSTICE: London, para.19. 26 M.Seneviratne, Ombudsmen: Public Services and Administrative Justice, (2002) Butterworths: London , 45-46.
27 Eg Fifth Report of the PCA, The Channel Tunnel Rail Link and Blight: Complaints against the Department of Transport HC 193 (1994-95); Second Report of the PCA, The Barlow Clowes Affair HC 76 (1989-90).
28 Sixth Report of PCA, Trusting in the pensions promise: government bodies and the security of final salary occupational pensions, HC 984 (2005-06).
29 The PO's findings were supported by the Public Administration Select Committee, The Ombudsman in Question: the Ombudsman's report on pensions and its constitutional implications , Sixth Report HC 1081 (2005-06).
30 Intriguingly, the very first Select Committee review of the PO encouraged the Office to find maladministration for ‘bad decisions’ and ‘bad rules’, Second Report from the Select Committee forthe Parliamentary Commissioner for Administration, HC 350 (1967-68). It is unclear whether this instruction was ever really acted upon.
32 On the potential for crossover, see A.Bradley, ‘The role of the ombudsman in relation to citizens’rights’ [1980] Cambridge Law Journal 39(2) 304, 320-331.
33 Fourth Report of the PCA, ‘A Debt of Honour’: The exgratia scheme for British group sinterned by the Japanese during the Second World War, HC 324 (2004-05).
34 ibid para.157. 35 Association of British Civilian Internees: Far East Region v Secretary fo rDefence [2003] EWCA Civ 473;[2003]QB1397.
36 Eg Miller and another v Stapleton and another[1996] 2 All ER 449, per Carnwath J at 465; London Borough Council v Awaritefe[1999] 32 HLR 517, per Pill LJ at 531; R v Local Commissioner for Administration, exparte Liverpool City Council [2001] 1 All ER 462.
37 Eg The Parliamentary Commissioner (Ombudsman) Act 1962 ( New Zealand), s.19.
38 Parliamentary and Health Service Ombudsman Principles of Good Administration, (2007).
39 Although see Balchin(no2), n19 above and Bradley, Duncan, Parrand Waugh v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin) paras.67–70.
40 Eg Select Committee on the Parliamentary Commissioner for Administration, The Powers, Work and Jurisdiction of the Ombudsman, First Report, HC 33 (1993-94), paras.12-21.
41 Parliamentary and Health Service Ombudsman, Annual Report,HC 348 (2005-06),36-41.
42 Although it was originally proposed to confirm the more flexible approach to completing investigations (Cabinet Office, n 4 above, paras.50-56), this proposal was not thought necessary toinclude in the 2007 Regulatory Reform Order, see The Explanatory Memorandum on the Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007, (2007) Cabinet Office: London, para.58.
43 Bradleyetal ,n39 above,para.42.
44 Although see the Law Commission, Remedies Against Public Authorities: scoping report,(2006)The Law Commission: London.
45 Eg in the Reeman Case (Case No.C.557/98) the complainants were paid significant compensation following a PO investigation, where previously they had failed in the Court of Appeal, Reeman v Department of Transport [1997] 2 Lloyd's Rep 648.
46 Bernard v Enfield LBC [2002] EWHC 2282; [2003] HRLR 4.
47 The one exception is s.7(4) of the Parliamentary Commissioner Act 1967 which allows the PO todirect that someone who has been deported should be re-admitted at least until an ombudsman investigation has been completed.
48 Select Committee on the Parliamentary Commissioner for Administration, MaladministrationandRedress, First Report, HC 112 (1994-95).
49 Parliamentary Commissioner Act 1967, s.5(2).
50 With Debt of Honour, the challenge to the legality of its policy in Elias v Secretary of State for Defence [2005] EWHC 1435 (Admin) may have been partly responsible for the Ministry of Defence belatedly accepting the PO's recommendations. In Congreve v Home Office[1976] QB 629 the Courtof Appeal found that the Home Office had acted unlawfully where previously the PO had found maladministration. While in NHS funding for long term care,HC 399 (2002-03), the Health Service Ombudsman, the PO's sister ombudsman, partially based her finding of maladministration on the fact that a number of Health Authorities were not complying with the Court of Appeal's ruling in R v North and East Devon HA , exparte Coughlan [2000] 2 WLR 622.
51 Department for Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals (2004), Cm 6243.
52 The case of Anufrijeva v Secretary of State for the Home Department [2003] EWCA Civ 1406;[2004] QB 1124 demonstrated how disproportionately expensive the pursuit of maladministration complaints in thecourts canbe. See also Law Commission, n44 above.
53 M.Elliott, ‘Asymmetric devolution and ombudsman reform in England’ [2006] Public Law 84, 88.
54 R.Kirkham, ‘Auditing by stealth? Reports and the Ombudsman’ [2005] Public Law 740.
55 C.Harlow, ‘Ombudsmen in search of a role ’(1978) 41 Modern Law Review 446.
57 Local Government Act 1974; NHS Reorganisation Act 1973.
58 Eg Parliamentary and Health Services Commissioners Act 1987. Amendments canbemadeby
Order in Council, Parliamentary Commissioners Act 1967, s.4 (as amended).
59 Parliamentary Commissioner Act 1967, sched.3, s.6.
60 Eg First Report from the Select Committee on the Parliamentary Commissioner for Administration, 1971-72, HC 215, iii-vi.
61 Cabinet Office, P.Collcutt and M.Hourihan Review of the Public Sector Ombudsmen in England. (2000) Cabinet Office Publications: London, para 5.11.
62 Lewis and James, n 15 above, 117-122.
63 Adiscretion for which there is some support ins.5(1), see also Seneviratne, n26 above,108-109.
64 Gregory and Pearson, n 2 above.
65 Second report of Public Administration Select Committee, Tax Credits: putting things right. HC 577 (2005-06), Ann Abraham, Oral Evidence, Q 6.
66 Cabinet Office, n 62 above, para 3.42.
68 Parliamentary and Health Service Ombudsman, Summary results of the survey of Members of Parliament on the work of the Ombudsman
69 Public Administration Select Committee, Annual Report of PO, fourth report, HC 106 (1999-2000),para 6.
70 n66 above, Memorandum to the Public Administration Select Committee, para. 4.1.
71 Cabinet Office, n 62 above, ch.3.
73 Parliamentary Commissioner Act 1967, s.8 and s.9.
74 In 1975, the government issued a certificate under the Parliamentary Commissioner Act s.8(4) during the Court Line investigation, Fifth Report of the PCA, HC 498 (1974-75), and in 1971 a notice was issued under s.11(3) (Case 130/S – Non-release of documents relevant to tax affairs, Second Report of PCA, Annual Report HC 116 (1971-72), pp180-183).
75 Eg Eighth Report of the PCA, Annual Report HC 897 (2001-02), para.1.6.
76 Eg Select Committee on the Parliamentary Commissioner for Administration Second Report HC 334 (1971-72), para.20; Report from the Select Committee on the Parliamentary Commissioner for Administration HC 268 (1974), paras 1-3.
77 Rochester Way, Bexley– Refusal to meet late claims for compensation HC 598 (1977-78); The Channel Tunne lRail Link and Blight:Complaints against the Department of Transport HC 193 (1994-95); Debt of Honour,n33 above; Occupational Pensions,n28above.
78 Eg see R.Gregory and P.Giddings (eds), Righting Wrongs: The Ombudsman in Six Continents(2000) IOS Press. There are exceptions, eg in Northern Ireland a complainant can apply to court to enforcea ruling of the Commissioner for Complaints, the Commissioner for Complaints ( Northern Ireland)Order 1996, article 16. See also, Public Services Ombudsman ( Wales) Act 2005, s.20.
80 See for instance, the legal advice to the Pensions Ombudsman who has the power to make binding orders, The Pensions Ombudsman and Article 6 of the European Convention on Human Rights-Opinion-Ms Monica Carss-Frisk (www).
83 See Gregory and Giddings, n12 above.
85 Eg see B.Thompson, ‘Integrated Ombudsmanry: Joined-up to a Point’ [2001] Modern Law Review 459; Lewis and James, n 15 above.
88 Harlow and Rawlings, n 2 above, p.455.
89 Public Services Ombudsman ( Wales) Act 2005.
90 Scottish Public Services Ombudsman Act 2002.
91 The posts of Assembly Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints are held by the same person. It has been recommended that these two posts shouldbe formally merged, see Office of First Minster and Deputy First Minister for Northern Ireland, Review of the Offices of the Assembly Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints (2004).
92 Although the PO already shares staff and facilities with the Health Service Ombudsman.
94 Sir Michael Buckley, The Ombudsman, December 2003, p.11.
96 As this article is written, the Department for Work and Pensions has been directed to reconsider its response to the PO's report in Bradley et al,n 39 above. Although this ruling may be considered on appeal, the Department for Work and Pensions has undertaken to look again at the issue, HC Deb vol.457 col.419-431 22 February 2007 (John Hutton, Secretary of State for Work and Pensions).
100 eg see Second Report of PCA, State earnings-related pensions cheme (SERPS) inheritance provision: redress for maladministration , HC 271 (2000-01).
101 Parliamentary and Health Service Ombudsman, Governance Statement, available here
104 Public Administration Select Committee: Review of the Public Sector Ombudsmen in England HC 612 Third Report (1999-2000); Ombudsman IssuesThird Report HC 448 (2002-03).
105 Lewis and James, n 15 above, pp.123-133.
109 Public Administration Select Committee (1999-2000), n 105 above, para.11.
110 Eg in 2005 the European Ombudsman commenced five own-initiative investigations, Annual Report 2005 , European Ombudsman: Brussels, p.157.
111 Ann Abraham, Oral evidence to the Public Administration Select Committee,HC 251-i,18 January 2007, Q.2.
112 Second Report of PCA, Put together in haste:‘Cod Wars’ trawlermen's compensation scheme, HC 313 (2006-07), para.167.
113 Sir Gus O'Donnell, Oral evidence to the Public Administration Select Committee, HC 884-v, 16 May 2006, Q.249.
114 Cabinet Office, The Ombudsman in you rfiles, last revision Jan 1997.
115 See Barlow Clowesand Channel Tunnel Rail Link,n27 above.
116 Gregory and Pearson, n 2 above, 471.
117 N.Lewis, ‘World Ombudsman Community: aspects and prospects’ Indian Journal of Public Administration , 39(4) [1993] 663, 665.
118 See in particular the British and Irish Ombudsman Association, http://www.bioa.org.uk/
