1. THE COURTS’ RELATIONSHIP TO THE OMBUDSMEN – SUPERVISOR AND PARTNER?
Brian Thompson

2. Outline Introduction Partners Policy Rationale for Ombudsmen
Financial Redress
Concluding Thoughts

3. Introduction Derived and developed from article
JR55 v Northern Ireland Commissioner for Complaints [2014] NICA 14
50 free eprints of article at

4. Shameless Plug

5. Relationships Complainants The Administrative Justice System
Aiding navigation, promoting access & understanding
The Administrative Justice System
The 4 Partners
Integrity Institutions
Auditors, Regulators, Inspectors
The Constitutional Order
Government, Parliament, the Courts

6. Partners
System
Remit and Scope
Approach

7. The AJ System
‘the overall system by which decisions of an administrative or executive nature are made in elation to particular persons including:
the procedures for making such decisions
the law under which such decisions are made
the systems for resolving disputes and airing grievances in relation to such decisions’
Tribunals, Courts and Enforcement Act 2007,
Schedule 7, para. 13(4)

8. The AJ System’s Aims Getting it Right First Time Effective Redress
Learning from Mistakes
Administrative Justice in Scotland - The Way Forward, AJSG (June 2009)

9. Further definition of AJ System
all initial decision-making by public bodies impacting on citizens – this will include the relevant statutory regimes and the procedures used to make such decisions (‘getting it right’);
all redress mechanisms available in relation to the initial decision-making (‘putting it right’);
the network of governance and accountability relation-ships surrounding the public bodies tasked with decision-making impacting upon citizens and those tasked with providing remedies (‘setting it right’). BKT p.57

10. The 4 Pillars Partners of AJ
Internal Complaints
Tribunals and Inquiries
Ombudsmen
Courts
Law Commission CP 187 (2008) Administrative Redress: Public Bodies and the Citizen, p.6

11. Comparison Bodies within remit- similar coverage
Nature of claim- service (and/)or legality
Objectives
Cost
Remedies - Ombudsman has wider range But recommendations with ‘political enforcement’ county court action if N. Ireland local council

12. The ‘sweeping-up’ Partner
Judicial Review is last resort
Ombudsmen ‘barred’ if an alternative remedy
But proviso if alternative is not ‘reasonable’
Law Commission proposal to reform, thus complaint acceptable unless Ombudsman decides it is not appropriate; should publish guidance
Law Commission LC 329 (2011) Public Services Ombudsmen, paras

13. Two-Way Traffic Proposals
Origin, Lord Woolf’s (1990) Hamlyn Lectures
Stay and referral by court to ombudsman
Ombudsman can refer a question of law
Each will decide if they accept such referrals
Law Commission LC 329 (2011) Public Services Ombudsmen, paras ;

14. Partners: cooperative approach
Generally ombudsmen may be said to achieve goals through partnership see Hertogh’s dichotomy ‘coercive control’- courts and
‘co-operative control’ –ombudsmen
M. Hertogh ‘Coercion, cooperation and control: understanding the policy impact of administrative courts and the Netherlands’
(2001) Law and Policy 23: 1, 47-67

15. Partners
‘[T]he ombudsman [can] take a more expansive adjudicative perspective … look to the underlying causes of citizen grievance and, over time, and by way of a cumulative and iterative process … make recommendations that will remedy not just the plight of the individual complainant but others already, or yet to be, in the same or similar situation.’
N. O’Brien ‘Ombudsmen and social rights adjudication’, [2009]Public Law 466, at 470)

16. Partners: Recap & Metaphors
AJ System user chooses on appropriateness
Ombudsman overlaps due to the proviso
Ombudsman is ‘the buckle in the belt of redress’ BKT p 192
Emergency services ‘Each is absolutely vital – but not necessarily in the same situation.
Morgan LCJ (2010) ‘The ombudsman and the judge: Redressing grievance and holding to account’.

17. Policy In JR55 the NICA majority did not refer to policy
But the minority and High Court judge did
On the clinical judgment jurisdiction we have
Atwood v Health Service Commissioner [2008] EWHC 2315 (Admin) was cited and it was accepted that the Bolam test was not applicable
Lord Reed says the Supreme Court welcomes interveners, whose submissions can change the consideration of issues from that in lower courts

18. Financial Redress
The majority construed the 1996 NI Order to preclude the power to make financial redress
The 1996 Orders followed the 1969 NI statutes and the PCA 1967 in not specifying financial redress
PHSO make reference to guidance on financial redress in Mr & Mrs M (HC 132 of )
Law Commission proposes ombudsmen should publish more -guidance, digests on their work plus reports, (can fit open justice with confidentiality)

19. Concluding Thoughts Ombudsmen not well known or understood
Healthcare cases rising
Concern and criticism from Patients, MPS/MDU
Educate and Inform Partners
Review policy and guidance on financial redress
More openness with more publications