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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Andrews, R (On the Application Of) v Parliamentary And Health Service Ombudsman [2016] EWHC 2150 (Admin) (28 July 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2150.html Cite as: [2016] EWHC 2150 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 July 2016

1. HIS HONOUR JUDGE MCKENNA: In this claim, Mr Stephen Andrews seeks judicial review of a decision by the Health Service Commissioner for England, referred to in the claim form as the Parliamentary and Health Service Ombudsman, who I will refer to hereafter as "the ombudsman", a decision itself taken on review dated 3 February 2016, following the ombudsman's earlier investigation into complaints about the care and treatment provided to the claimant's late aunt which was the subject matter of an earlier decision dated 16 October 2014.
2. By way of brief background, the claimant's father, Robert Andrews, passed away at St George's Hospital on 17 February 2012, and the claimant's aunt, Anne Haligan, sadly died at the same hospital on 2 February 2014. As Mr Andrews has very eloquently described this morning, he had concerns about the circumstances leading to the death of his father, but it was the subsequent death in the same hospital of his aunt that led him or prompted him to ask more questions than he and/or members of his family had asked in respect of the prior death of his father.
3. He was unsatisfied with the responses that he got responses from the hospital, so pursued the relevant complaints procedure which led to an unsatisfactory outcome so far as he was concerned. He therefore pursued two complaints to the ombudsman, one in respect of his father, and although he was unsatisfied by the outcome of that complaint, he did not take the matter any further. He also complained to the ombudsman separately about his aunt and that led to the decision of 16 October. He sought a review of that decision, which led to the decision of 3 February 2016 which is the subject matter of this claim for judicial review.
4. If I can summarise in a nutshell what Mr Andrews says, it is this. He felt that the nature and seriousness of the complaints that he made in respect of the treatment of his aunt warranted a more thorough investigation than he felt was undertaken by the ombudsman, hence his continuing to pursue this claim in this court.
5. Permission to pursue judicial review was refused on the papers by John Howell QC, on 20 June, for a number of reasons which I do not need to rehearse now. They are there in the order. The basis of the challenge, as I understand it, (and I should emphasise that the decision being challenged is the review decision of 3 February and not the substantive decision of the ombudsman on 16 October 2014, although there is a substantial blurring of those separate matters in the grounds put forward in this claim,) is that the decision was procedurally unfair and/or irrational. Both of those grounds were comprehensively dealt with by John Howells QC at paragraph 3 of his reasoning for refusing permission and for the reasons which he identified there he concluded that the grounds did not disclose any arguable case.
6. Whilst I entirely understand that Mr Andrew's feels very strongly about the circumstances leading first of all to the death of his father and subsequently to the death of his aunt at the same hospital and the way in which his concerns about those deaths were dealt with first of all by the hospital and then consequently by the ombudsman, the difficulty with this application so far as the Claimant is that the ombudsman has a very broad discretion as to how she conducts her investigations.
7. Thus, the procedure for conducting an investigation shall be such as she considers appropriate in the circumstances of the case and in particular she may obtain information from such persons and in such manner and make such enquiries as she thinks fit. That is indeed a wide ambit with significant discretion.
8. Moreover, it is plain from the authorities that are referred to by counsel for the defendant that the question of maladministration is a matter for the ombudsman alone. The hurdle to demonstrate that the ombudsman may have exercised her discretion unreasonably is a very high one and the ombudsman has a discretion to limit the scope of her investigations.
9. In the light of those principles, as it seems to me, for the reasons identified by John Howell QC in summary form, and as amplified by me orally, the grounds really amount to little more than a disagreement with the ombudsman's conclusions rather than a properly formulated challenge based on public law errors. The application, however well intentioned, is, in my judgment, legally misconceived. That is perhaps not surprising given that Mr Andrews is not legally qualified, and perhaps also not surprising given the underlying subject matter of the original complaints. However, I am afraid there is no legal basis for this challenge and I therefore refuse permission.
10. HIS HONOUR JUDGE MCKENNA: There is a costs order made in the written permission order Mr Andrews. Is there anything you want to say in respect of that costs order?
11. THE CLAIMANT: What I will probably do is discuss matters with my solicitor. I think it is £900.
12. HIS HONOUR JUDGE MCKENNA: Yes. If you think that is too high and you want to make a submission about that now is the time, otherwise that order stands. Do you understand that? It is no good going away and talking to your solicitor and then coming back at a later stage.
13. THE CLAIMANT: Do you consider that to be reasonable?
14. HIS HONOUR JUDGE MCKENNA: Let me see what it was based on. It is based on eight hours at £75 an hour of the paralegal's time and two hours of a Grade C solicitor at £150 per hour. The hourly rates are reasonable. You may not think so but they are and the amount of time spent does not seem to me to be disproportionate to the issues raised by you in your original claim. So no, I think probably there is nothing I would highlight there that looks unreasonable. But if is there anything you want to say about it, now is the time.
15. THE CLAIMANT: Not really, no. I will probably discuss matters with my solicitor afterwards.
16. HIS HONOUR JUDGE MCKENNA: By all means Mr Andrews. Although I found against you the court is sympathetic to the position that you and your family are in but I am afraid there is no legal redress against the ombudsman in respect of this matter. Thank you very much. Thank you Mr Glenister, I appreciate your assistance as well.