Rapp, R (on the aApplication of) v The Parliamentary and Health Service Ombudsman & Anor

Factual and Procedural Background

This is a claim for judicial review of a decision by the Defendant ("the Ombudsman") dated 22 January 2014, which upheld the conclusions in her report of 23 August 2013 ("the Final Report"). The Final Report upheld certain aspects of the Plaintiff's complaint about the Interested Party ("Company A") and found maladministration causing injustice to the Plaintiff. It made recommendations to Company A and required it to pay compensation, which Company A accepted and implemented. The Plaintiff was dissatisfied with the outcome and sought to challenge the decision not to uphold one of his complaints on the basis of an alleged material error of law. The Defendant and Company A resisted the claim as fundamentally misconceived.

The Plaintiff commenced employment in August 2008 with an organisation known as Company B, which provides training in the healthcare sector. In December 2008, the Plaintiff obtained a qualification ("the qualification") awarded by a private corporation regulated by Company A. The Plaintiff began assessing candidates full-time but became concerned about his competence due to lack of relevant healthcare experience and insufficient support from Company B. After raising concerns unsuccessfully, he resigned in July 2009.

The Plaintiff complained to the awarding body about Company B's practices. The awarding body found no substantiation for his allegations but cancelled his qualification based on his own statements about his competence, effectively preventing him from working as an assessor. The Plaintiff disputed the investigation but did not initially complain about the cancellation.

In March 2010, the Plaintiff complained to Company A about the awarding body's handling of his complaint and its failure to act against Company B. Company A investigated, focusing on whether the awarding body was justified in finding no malpractice. During the investigation, there was a meeting between Company A and the awarding body, with discussions about the Plaintiff's competence and the reasons behind the qualification's withdrawal.

Company A's investigating officer was unaware that the qualification had already been withdrawn and sought advice from a more senior colleague, Mr Skipworth, who also had no knowledge of the prior withdrawal. Neither Company A nor the awarding body kept notes of their discussions, leading to conflicting accounts later.

Company A informed the Plaintiff in April 2010 that his complaint was not upheld. The Plaintiff expressed dissatisfaction and amended his complaint to include the failure to return his qualification certificate. Company A delayed in dealing with this further complaint, which the Ombudsman later found to be maladministration, but did not consider immediate action necessary.

Following an internal review, Company A acknowledged that the awarding body's decision to invalidate the qualification had no regulatory basis and instructed the awarding body to reverse its decision. The awarding body returned the certificate, but the Plaintiff remained dissatisfied.

The Ombudsman conducted a thorough investigation, focusing solely on Company A's role and jurisdiction. The Ombudsman found maladministration by Company A in failing to keep records of advice given but did not find sufficient evidence to conclude maladministration in the advice given regarding the qualification's withdrawal. The Ombudsman clarified that she could not investigate the awarding body's actions and limited her findings to Company A's conduct.

Legal Issues Presented

1. Whether the Ombudsman made a material error of law in her findings regarding the legality of the awarding body's cancellation of the Plaintiff's qualification.
2. Whether the Ombudsman erred in law by failing to determine whether the awarding body had the power to cancel the qualification voluntarily at the Plaintiff's request.
3. Whether the Ombudsman misapplied her own policy and public law duties in assessing maladministration by Company A.

Arguments of the Parties

Appellant's Arguments

• The Ombudsman erred by effectively determining that the awarding body had the legal power to cancel the qualification if the Plaintiff voluntarily sought cancellation, which was contrary to the regulatory framework.
• The qualification is permanent once awarded except in cases of malpractice; there is no power for voluntary relinquishment or cancellation by the awarding body at the candidate's request.
• The Ombudsman should have found maladministration in the advice given by Company A's official, Mr Skipworth, who misunderstood the circumstances and failed to advise correctly.
• The failure to keep records of advice given amounted to maladministration, and the incorrect advice had a material impact on the Plaintiff's ability to work.
• The Ombudsman failed to apply her own policy requiring determination of what should have happened under relevant law and standards.
• There was a potential breach of Article 8 of the European Convention on Human Rights due to interference with the Plaintiff's private life and work ability.

Respondents' Arguments

• The Ombudsman is not required to determine questions of law but to investigate maladministration under statutory powers.
• The Ombudsman correctly limited her jurisdiction to Company A's conduct and did not consider the awarding body's actions.
• It was not necessary or appropriate for the Ombudsman to decide the legality of the awarding body's cancellation powers.
• Mr Skipworth, as a lay official, was not obliged to give legal advice on a complex regulatory matter outside Company A's remit.
• The Ombudsman did not err in law or policy and applied a reasonable approach to the evidence and standards.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed whether the Ombudsman made a material error of law in her findings on the legality of the awarding body's cancellation of the Plaintiff's qualification. The court found that the Ombudsman did not determine that the awarding body had the legal power to cancel the qualification if the Plaintiff voluntarily sought cancellation. Instead, the Ombudsman considered two alternate hypotheses about the circumstances and concluded there was insufficient evidence to find maladministration by Company A regarding the advice given.

The court emphasised that the Ombudsman’s jurisdiction was limited to maladministration by Company A and did not extend to determining the lawfulness of the awarding body's actions. The Ombudsman’s failure to keep records of advice given was maladministration, but the absence of evidence on the content of advice meant no finding of maladministration on that point could be made.

The court rejected the argument that the Ombudsman erred by not applying her own policy or public law duties, finding that she applied the relevant standards reasonably and did not misdirect herself on the law. The court noted that the Ombudsman’s statements must be read in context and not interpreted as legal rulings on the awarding body's powers.

The court acknowledged that the question whether the awarding body could accede to a voluntary request to relinquish a qualification was a complex legal issue unnecessary to decide here, especially as no such request had been made in fact. The Ombudsman’s role was to assess maladministration by Company A, not to resolve legal questions about the awarding body's powers.

Ultimately, the court found no material error of law by the Ombudsman and that her decision was open to her on the evidence and within her statutory remit. The court declined to substitute its view for that of the Ombudsman.

Holding and Implications

The court DISMISSED the claim for judicial review.

The direct consequence is that the Ombudsman's Final Report and findings stand, including the conclusion that there was no maladministration by Company A in the advice given regarding the cancellation of the Plaintiff's qualification. No new legal precedent was established. The decision confirms the limited scope of the Ombudsman's jurisdiction and the deference courts will give to her findings on maladministration absent irrationality or legal error.