Case No: C1/2009/2750 and 2750C
Neutral Citation Number: [2010] EWCA Civ 875
IN THE COURT OF APPEAL (CIVIL DIVISION )
ON APPEAL FROM QUEEN'S BENCH, ADMINISTRATIVE COURT
(MR JUSTICE PITCHFORD)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 6th July 2010

Before:

LORD JUSTICE SEDLEY
LORD JUSTICE RICHARDS 
and
LORD JUSTICE GOLDRING
- - - - - - - - - - - - - - - - - - - - -

Between:

	The Queen on the Application of Mencap	
Appellant	
	- and -		
	
Parliamentary Health Service Ombudsman 	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

( DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court )
- - - - - - - - - - - - - - - - - - - - -

Mr David Wolfe (instructed by Leigh Day Limited ) appeared on behalf of the Appellant.

Mr James Maurici (instructed by Beachcroft LLP) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Richards :

1.	On 23 March 2009 the Parliamentary Health Service Ombudsman and the Local Government Ombudsman published a joint report entitled "Six Lives: the provision of public services to people with learning disabilities”, a report  on the outcome of an investigation into complaints by the relatives of six people with learning disabilities who had died after receiving allegedly sub-standard healthcare.  Although I refer to it as a single report, it consisted in fact of an overview report together with separate reports on the investigation into each of the six cases.

2.	Mencap welcomed much of the report but took issue with the legal correctness of two aspects of the approach adopted in it.  It issued a claim form seeking permission to apply for judicial review of the report.  Permission was refused in the Administrative Court both on the papers and by Pitchford J (as he then was) at an oral hearing.  Mencap now appeals against that refusal of permission to apply for judicial review.  On the appeal it pursues only one of the two grounds argued below.  

3.	The correct respondent is technically the Health Service Commissioner, whose functions are laid down in the Health Service Commissioners Act 1993 ("the 1993 Act”).  The present Health Service Commissioner is also the Parliamentary Commissioner for Administration appointed under the Parliamentary Commissioner Act 1967 and is often referred to as the Parliamentary and Health Service Ombudsman ("the PHSO").  That is the designation that has been used in these proceedings.  The proceedings do not relate to the Local Government Ombudsman's part of the report.

4.	The first question is whether the ground pursued by Mencap is arguable, which is disputed by the PHSO.  If it is, consideration must be given to two further issues raised by the PHSO in opposition to the grant of permission.  One concerns various procedural matters.  The other concerns the public interest.

5.	Section 3(1) of the 1993 Act provides:

"On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of— 
(a) a failure in a service provided by a health service body, 
(b) a failure of such a body to provide a service which it was a function of the body to provide, or 
(c) maladministration connected with any other action taken by or on behalf of such a body, 
the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.”

6.	In broad terms Mencap says that in deciding whether there had been a service failure of maladministration as referred to in section 3(1), the PHSO erred in the way she dealt with the statutory duty created by section 21(1) of the Disability Discrimination Act 1995 ("the 1995 Act").  Section 21(1) of the 1995 Act provides:

"Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.”

7.	By Section 19(1)(b) of the 1995 Act it is unlawful for a provider of services to discriminate against a disabled person in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service.

8.	The duty under section 21(1) is sometimes referred to as the duty to make reasonable adjustments.  For example, a person with a learning disability may not be able to describe his symptoms properly or otherwise convey information relevant to a medical diagnosis and this may call for additional steps to be taken by the doctor concerned both in reaching the diagnosis and in making arrangements to review that diagnosis, perhaps by way of a follow-up visit.  

9.	The duty was referred to in the report as a feature of the legal, policy and administrative framework relevant to the PHSO's task.  One sees it reflected in paragraph 77 of section 2 of each of the individual reports: 

"The practical effect of the legal, policy and administrative framework on disability discrimination is to require public authorities to make their services accessible to disabled people.  To achieve this objective they must take all reasonable steps to ensure that the design and delivery of services do not place disabled people at a disadvantage in their enjoyment of the benefits provided by those services.”

10.	In the next paragraph, paragraph 78, the report continued:

"Failure to meet this standard will mean not only that there is maladministration or service failure, but that there is maladministration or service failure for a disability related reason. This does not require a deliberate intention to treat disabled people less favourably. It will be enough that the public authority has not taken the steps needed, without good reason.”

11.	That, in Mencap's contention, is tantamount to an acknowledgement that the breach of the duty under section 21(1) would, without more, amount to maladministration or a service failure.  Mencap submits in any event that such is the correct position in law.  But it would seem that that is not how the PHSO actually approached the matter.  The introduction to the same section of the report explained that the ombudsmen generally begin by comparing what actually happened with what should have happened, and that they therefore need to establish not only the facts but also a clear understanding of the standards which applied at the relevant time and governed the exercise of the functions of the bodies and individuals whose actions are the subject of the complaint.  They call this establishing the overall standard.  The report continues: 

"45. The overall standard has two components: the general standard which is derived from general principles of good administration and, where applicable, of public law; and the specific standards which are derived from the legal, policy and administrative framework and the professional standards relevant to the events in question.

46 Having established the overall standard we then assess the facts in accordance with the standard. Specifically, we assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard. If so, we then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute service failure or maladministration.”

12.	The same point has been expressed in this way by the PHSO in correspondence:

"In terms of benchmark, to be able to say the action or decision of an NHS body or an individual practitioner fell so far below a standard that it constitutes service failure or maladministration I need to be able to say that the action of the NHS body or practitioner fell outside the range of reasonable practice in the circumstances."

13.	Mencap's case is that if the two-stage approach outlined in paragraph 46 of the relevant section of the report is applied to the duty under section 21(1) of the 1995 Act, a duty specifically included in the description of the overall standard, a complaint will be made out only if first there was a breach of the duty and secondly the act or omission constituting that breach fell so far short of the applicable standard as to constitute service failure or maladministration.  Yet there is a fundamental tension between that approach and the acknowledgement in paragraph 78 that a breach of a duty under section 21(1) would amount to maladministration or service failure, and it is paragraph 78 not paragraph 46 which is correct.  As Mr Wolfe puts it at paragraph 37 of his skeleton argument: 

"The central question arising in the [judicial review] claim is thus whether ... a breach of that statutory duty is, without more, maladministration and/or a failure in a service and/or a failure to provide a service, or whether such illegality must also fall outside the range of reasonable practice in the circumstances to be maladministration or a failure in service or a failure to provide a service."

14.	On the face of it that seems to me to raise an arguable issue.  Apart from the apparent inconsistency on the point in the PHSO's own report, I think it open to serious argument that a breach of the duty laid down by Parliament under section 21(1), if established, would constitute in itself a service failure within section 3 of the 1993 Act.  To put it another way, it is arguable that an action or omission which is in breach of a statutory duty to make reasonable adjustments cannot fall within the range of reasonable practice.

15.	Mr Maurici for the PHSO has advanced detailed written and oral submissions to the effect that Mencap's claim lacks merit.  Those admissions may or may not succeed at the end of the day, but they do not include what amounts in my view to a knockout blow.  They have not persuaded me that the claim is unarguable.  In those circumstances, with due respect to Mr Maurici, I think it better not to express any further view on his submissions at this stage and it is therefore unnecessary to summarise those submissions even as he made them this morning.  It goes without saying that all his substantive points will be open to him on the hearing of the judicial review application itself.

16.	On the basis that Mencap has an arguable claim, I turn to consider the other reasons why Mr Maurici said that permission to apply for judicial review should be refused.  Before doing so I should make clear the limited nature of the relief now sought by Mencap if permission to apply for judicial review is granted.  Mencap originally sought an order quashing the report but that is no longer pursued.  Mencap now simply seeks a declaration as to the correct legal approach towards the issue I have identified.  It does so not with a view to re-opening the cases dealt with in the report but solely in order to inform future decision-making on this important issue.  We are told that the approach to be taken by the PHSO in future cases may affect the advice given by Mencap to the thousands of people who contact them in relation to remedies for discriminatory treatment and, in particular, whether they should be advised to pursue matters by way of complaints to the PHSO or by way of legal action in court.

17.	Mr Wolfe had not by the beginning of the hearing today produced a form of declaration that Mencap now seeks by way of relief. In the course of the hearing he has drafted a declaration in these terms:

"When in future considering complaints which raise the question of whether there has been a breach of statutory duty under section 21 of the Disability Discrimination Act 1995, the PHSO shall proceed on the basis that a breach of that duty amounts to maladministration and/or a failure in service and/or a failure to provide a service for the purposes of section 3 of the Health Service Commissioners Act 1993."

18.	It may be that that is not the best way of expressing the matter and if permission is granted it seems to me that there should also be a further opportunity for Mr Wolfe to amend the declaration for the purposes of the future proceedings.  That is a point I will come back to in a moment.

19.	First, however, let me turn to Mr Maurici's argument based on various procedural matters.  There was an issue before Pitchford J as to whether an extension of time was needed for the making of the application for permission to apply for judicial review and, if so, whether an extension should be refused, in particular because of a failure to name and serve as interested parties the individual doctors who were the subject of the complaints.  An embargoed copy of the report, or the relevant part of the report, was sent to Mencap on 17 March 2009.  The final version of the report was laid before Parliament and published on 23 March.  On 21 May Mencap sent a letter before claim to the PHSO, raising inter alia the substantive issue now before us.  The PHSO replied on 9 June rejecting Mencap's contentions.  

20.	On 16 June, just before the expiry of the three-month time limit for judicial review claims under CPR 54.5, Mencap filed a claim form challenging the report.  There was no statement of the legal basis of the claim as required by CPR 54.6.  There was no statement of facts or statement of grounds as required by that rule and by paragraph 5.6 of the Part 54 Practice Direction. The claim form did refer to the grounds set out in the letter before claim, which was included in a bundle of documents enclosed with the claim form, and it stated that the claimant intended to replace the letter if possible before the time of service of the sealed claim form.  An amended statement of facts and grounds in compliant form was filed on 24 June, two days after service of the claim form on the PHSO and some seven days outside the outer three-month time limit.

21.	Pitchford J observed that there was no explanation of why it took so long after receipt of the report to write the letter before claim nor why it took 14 days after receipt of the PHSO's letter in response to file grounds which complied with the rules.  No application for an extension of time or to amend the claim had been made, save impliedly at the hearing before the judge.  Of more significance, in his view, was the omission to serve a claim upon interested parties affected by it.  He explained the point as follows: 
"15. I return shortly to the procedure which has been adopted.  While the PHSO report is undoubtedly the vehicle for this claim, the ultimate target is the treating GPs.  While they were not named in the report, the claimants know who they are, because it was the claimants who made the complaints to the ombudsman.  Should this claim proceed to a hearing those with the most profound interest in its outcome would, in my view, be the medical practitioners.  They were not served, nor have they been served and it is now 9 months since the report was published.  They have undoubtedly suffered prejudice in consequence of the claimant’s procedural shortcomings.  As I indicated in the course of argument, had it not been for this prejudice, then I may well have taken a more generous view as to an extension of time. 

16. As it is, I take the view that this is a specific prejudice which has resulted from the claimant's failure to bring this claim as soon as reasonably practicable, and it would, in my view, also be inappropriate to permit this review to proceed on that ground also."

22.	Thus it appears that the judge took the view that, in breach of CPR 54.5, Mencap had failed to file the claim promptly and in any event not later than three months after the time when the grounds to make the claim first arose, and he declined to grant an extension of time, an application for extension being impliedly before him, because of the prejudice that would be suffered by the doctors whose conduct was in issue in the report.  

23.	If the doctors had to be named and served as interested parties in the event of the judicial review claim now proceeding, I would not feel free to depart from the judge's decision. The claim form was deficient in respects already mentioned.  I do not accept that the reference to the letter before claim was sufficient even though that letter was in the accompanying bundle of documents.  An extension of time was in my view clearly required.  The judge's refusal of an extension was a proper exercise of discretion on his part in the circumstances as they existed before him.  In my view, however, the limited nature of the relief now sought by Mencap casts a different light on matters.  There is no longer any attempt to quash the report.  The case is pursued, as I have said, on the basis that the report has exposed a legal issue, the resolution of which will determine how the PHSO approaches similar cases in the future but will not affect the findings in the report itself.  Those findings will stand irrespective of the outcome of the judicial review claim.  Any declaration ultimately granted if the claim succeeds can be tailored accordingly.

24.	In those circumstances I take the view that the individual doctors were not  interested parties.  The issue is between Mencap and the PHSO.  Others can of course apply to intervene (indeed the Equality and Human Rights Commission has filed an application to intervene) but there is no requirement to identify or serve the documents.  The prejudice to which Pitchford J referred therefore no longer arises.  That being so, I see no reason to refuse the relatively modest extension of time required for the filing of a judicial review claim complying with the requirements of the rules.  I say modest because I do not think that if this claim had been lodged within the three-month outer time limit, that permission should have been refused on grounds of lack of promptness on the basis that it should have been lodged at some earlier time prior to that outer time limit.  I would therefore reject Mr Maurici's arguments on procedural matters.

25.	The third and final basis on which he resists the grant of permission to apply for judicial review is on grounds of public interest.  He says that the impugned report is robust and hard-hitting and it has been widely welcomed and all its recommendations have been accepted.  There is, he submits, no public interest in allowing the judicial review claim to proceed.  There is also a concern that Mencap's challenge if it succeeds will undermine the weight to be attached to the report itself.

26.	If Mencap were seeking to quash the report rather than seeking the limited form of relief already indicated, there might be some substance in that argument, at least insofar as it informed the exercise of discretion whether to extend time.  As it is, however, the argument cannot in my view avail the PHSO.  If the judicial review claim is allowed to proceed it will not put at risk the good things that have resulted from the report.  It will simply resolve an important legal issue concerning the approach to be taken by the PHSO in similar future cases.  As it seems to me it is positively in the public interest that that issue be resolved.  I do not think that any adverse impact that the manner of its resolution might have on the weight of the conclusions reached in the report itself is a strong factor in circumstances where the findings in the report are not the subject of challenge.

27.	A further point made by Mr Maurici in his written skeleton argument is that responding to the proceedings will involve the PHSO in substantial expenditure of time and expense to the detriment of the service provided to others.  It may mean that some complaints which would otherwise be investigated will not be investigated while consideration of others will be delayed.  The commitment of time and money is a problem for any public authority defending judicial review proceedings.  It is not a good reason for refusing permission to apply in a case that otherwise merits it.  The extent of the PHSO's potential exposure to a costs order is a separate matter arising in the context of Mencap's application for a protected costs order, to which I will turn in a moment.

28.	For the reasons given I would allow the appeal and grant Mencap permission to apply for judicial review on the one ground pursued before us and on the basis I have indicated as regards the relief sought.  I would allow Mr Wolfe a reasonable time within which to further amend the claim so as to set out the precise form of declaratory relief now sought, making it clear that that must reflect the basis on which the case has been put and to which I have referred in this judgment.

29.	I take the view that the case should be remitted to the Administrative Court for substantive consideration of the judicial review claim.  Understandably Pitchford J did not hear full argument or deal with matters in sufficient detail to make it appropriate for the case to be reserved to the Court of Appeal. In my judgment the case warrants full consideration at first instance.

30.	The final issue is Mencap's application for a protected costs order.  The order sought would limit Mencap's liability for the costs of the PHSO to a total of £25,000 and, by way of cross-cap, limit the PHSO's liability for Mencap's costs to the same sum, £25,000.  An order in those terms was resisted by the PHSO until yesterday, when it notified Mencap and the court that if permission to apply for judicial review were granted today the protected costs order would not be opposed.  That is a position that I would endorse.  In the circumstances I need not rehearse the evidential background, but I take the view that this is indeed an appropriate case for a protected costs order and that a reciprocal cap of £25,000 would be fair and just.  The parties' individual costs for litigation may not even reach that sum if the litigation is conducted with due economy and restraint in relation to what is actually a very narrow point, but the cap will provide the necessary degree of certainty to enable the litigation to continue.  Accordingly I would make a protected costs order in the terms sought.

Lord Justice Goldring:  
I agree.

Lord Justice Sedley:

31.	The single issue now pursued by Mencap is in my view one of public importance even if it falls to be answered only in relation to the Disability Discrimination Act duty to make reasonable adjustments to accommodate disability.  It poses the question whether it is open to the ombudsman to find that there has been no service failure, albeit there has been a material failure to make reasonable adjustments.  For the reasons given by Richards LJ, and in spite of Mr Maurici's stalwart attempt to say that Mencap's negative answer to the question is unarguable, I agree that the issue is a real and viable one and that time should be enlarged to the modest extent necessary to permit the application for judicial review, now by way of a declaration alone, to proceed.  

32.	Since there are likely to be applications by third parties to intervene in the argument, it is preferable that, having given permission to apply for judicial review, we should remit the application as my Lord proposes for trial in the ordinary way in the Administrative Court.

33.	I would add finally that it is satisfactory to be able to record that the parties before us are agreed that any liability in costs is to be limited to £25,000.  Such agreements which may make public interest litigation affordable where risk to limited funds would otherwise be too great are very much to be commended.  The order will then be made in the form proposed by my Lord, Richards LJ.

Order: Application granted; Appeal allowed.