Usurping The Court?: Limitations On The Ombudsman's Power

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...