CO/10508/2005 
Neutral Citation Number: [2006] EWHC 2847 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 31 October 2006
 
B E F O R E:

MR JUSTICE COLLINS 

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THE QUEEN ON THE APPLICATION OF M
(CLAIMANT)

-v- 

THE COMMISSIONER FOR LOCAL ADMINISTRATION IN ENGLAND
(DEFENDANT) 
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MR SAM GRODZINSKI (instructed by Bindmans) appeared on behalf of the CLAIMANT
MR BRIAN ASH QC (instructed by Bevan Britton LLP) appeared on behalf of the DEFENDANT

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J U D G M E N T
1.	MR JUSTICE COLLINS:  This claim by M against the Commissioner for Local Administration in England and Wales ("the Ombudsman") seeks to challenge his decision not to entertain a complaint made by M against the London Borough of Bromley.  
2.	The background is as follows.  The claimant is the father of J, who was born in February 1996.  In 2001 J was at an infant school which was maintained by Bromley Council.  His parents were concerned that he was reacting very badly to going to school, and they discovered from what he told them that he was, as he asserted, being ill-treated by one of the teachers at the school.  Putting it very broadly, she was singling him out for adverse attention, was describing him as an obnoxious child, and when it was drawn to her attention that he had, as indeed she knew, some difficulties because he may have suffered from some form of deficit disorder, she then made observations to the effect that she understood he was "an idiot" and thus he would be treated as "an idiot".  The reality is that if he was treated by her in anything like the manner that he alleged, then he was suffering in a way which no child ought to have been suffering, and she was not fit to continue as a teacher of young children.  
3.	The parents made a complaint to the school.  This was initially in March 2001.  It is not necessary for me to go into any further detail.  I have outlined the substance of the matters about which the complaint was made.  
4.	The head teacher responded to that complaint on 3 April 2001, and she said that she had spoken to the deputy head and to the head of special needs (I think the same individual), the teacher concerned and another teacher who also taught the claimant's son.  She said that she could find no substance in any of the serious allegations that had been made.  Accordingly, the complaint was rejected.  There was a meeting at the school, but the head teacher maintained her view.  The parents decided at that stage that they would leave matters because it appeared that the conduct, if it had occurred, had changed and their son was much happier at school and appeared to be getting on well.  However, in 2004 when he had left the infant school and had gone to the junior school, it transpired that what had been done to him whilst he was in the infant school had made a lasting adverse impression upon him.  This led his parents to have real concerns that something should be done about it (albeit of course now some three years on).  Accordingly, they decided that they would make a complaint to the school governors.  This they did by means of a letter of 7 July 2004.  In it they requested that the serious misconduct of the teacher in question be investigated and considered by a panel of governors.  The letter set out in some detail the history of the matter and why it was that they were saying that it needed further attention.  They set out why they decided to take the action that they were taking so long after the event.  What they said they relied upon was the lasting and severe damage to their son, which had become apparent, and the obvious knock-on effect from his time in the teacher's class because he had been bullied and openly ridiculed in front of his fellow pupils; and that had led them to continue to believe that he was a proper target for that sort of activity by them.   
5.	The problems had become apparent since their son was obtaining continuing assistance from a therapist, and further they said that it had come to their attention that there was evidence from other pupils, friends of their son, which tended to confirm that he had been telling the truth when he had made the allegations about what the teacher had done.  They said that they would like to attend a meeting of the panel to give further oral and written evidence and ask that it be treated as a matter of urgency, because it would give their son some sense of closure and justice which would hopefully assist in his recovery.  
6.	The governors' response was to refer the matter back to the head teacher and to treat it as a fresh complaint because apparently there had been some change of policy between 2001 and 2004.  So it was that the substantive answer to the complaint came from the head teacher on 12 July 2004, and essentially she reaffirmed the response that she had given back in 2001, and stated that there was, in her view, following such investigations as she had made, no substance in the complaints.
7.	The claimants were dissatisfied with that response, and accordingly they decided that they would pursue their complaint with the local authority, Bromley Council.  Following a number of letters from the Council indicating that they were going to investigate, on 31 August the claimant wrote a letter to the Director of Education at Bromley in which he indicated that, in his view, various people ought to be contacted in order to investigate the matter properly.  Among other things, he stated that his son would obviously need to be interviewed in the presence of a responsible adult, and they would not allow him to be questioned by a person whom he associated with the cause of his current distress, but as his therapist was currently dealing with the effects, he felt that her permission would be important.  Their son felt a strong sense of injustice, and he believed that his evidence was vital and that the therapist might be prepared to assist.  He also made the point that other pupils, who although unprompted had recalled many of the incidents of abuse, ought also to be interviewed.  
8.	The response was initially again a holding response, and in due course there was a meeting held with the investigating officer, a Mrs Fuller, and the parents.  At that meeting, of which I have a record (made by an employee of the Council), Mrs Fuller explained that the overall purpose of the meeting was to establish if this matter should be dealt with under the authority's Raising Concerns Procedure or under the school's complaints procedure.  If the latter, the school would be required to investigate the complaint.  I am bound to say that I find that slightly strange because it should have been clear, I would have thought, by then that the claimant had approached the Council because the school had not in his view investigated the matter properly, and any re-investigation which had been carried out apparently following the complaint to the governors had not achieved anything.  Accordingly, the parents were clearly not interested in the school itself being required to investigate the complaint.  Nor perhaps was there any great point in that some three years later.  What they wanted was for the Council to investigate the matter, and it would seem that that would be done under what was described as the Raising Concerns Procedure.  
9.	The claimant's wife indicated that what she was concerned with was achieving justice for their son, and that the outcome should be that the teacher in question should no longer continue to be a teacher.  In fact by then she had left the school in question, but had gone to another school in the borough.
10.	The question was raised at that meeting whether other children would be interviewed, and Mrs Fuller indicated that parental consent would be required before doing so and that she would be seeking legal advice from the borough solicitor prior to deciding whether to take that approach.  So far as interviewing J was concerned, she asked for the parents' views as to whether they would be agreeable to her devising questions in conjunction with his therapist and for the therapist to ask the questions.  J's mother confirmed that he trusted the therapist and was happy with her so that she envisaged that the therapist would ask the questions whilst Mrs Fuller observed.  Again, his mother stressed that J had a strong sense of injustice and was happy to be interviewed, and details were given of the manner in which the therapist could be contacted.  Mrs Fuller apparently confirmed that contact would be made with her to advise her that she would be receiving written clarification from the parents confirming their agreement with her and the employee to meet with her to devise appropriate questions for their son.
11.	It seems that it was not until 10 November that the meeting took place with the therapist.  That led to a letter from the claimant to Mrs Fuller in which he stated, having spoken to the therapist, that first the impression was given to her that as the teacher had a hitherto unblemished record, the complaint against the teacher was futile.  Secondly, the impression was given that the parents were alleging a conspiracy by staff at the school, but it was pointed out that that was precisely what they were not saying and they had made that clear in their letter of complaint.  Thirdly, it was stated that, contrary to the notes of the meeting on 28 September, she had no real wish to question the son at all, and that the complaint had already been investigated and found to be without merit.  In the light of that information that they said they obtained from the therapist (and perhaps not surprisingly), they took the view that the manner in which the investigation by Mrs Fuller was being handled was, as they put it, entirely inappropriate and an appalling arrogance was being shown by the officials involved.  I emphasise that if what they were told was true, then that reaction was entirely understandable.
12.	The investigation continued, and in due course the conclusion was reached and the claimant received from the Director of Education a letter on 1 March 2005 in which he stated the response to the various allegations that had been made.  So far as the teacher was concerned and the allegation of verbal abuse, the point was made that she was a teacher who had an unblemished record, no complaints had been made by any other parent or anyone else that she had bullied any other pupil.  It was said that there were no witnesses to these events, and through the interviews and documents reviewed during the investigation there was no evidence to support the allegations made.  If there had been no interviews of those who had, it was said, been able to support the assertions, that perhaps was hardly surprising, and that is one of the main complaints that was in due course made to the Ombudsman.  The conclusion reached was that there was no evidence to support the allegations against the teacher, as detailed in the letter of complaint which had been made back in March 2001.  
13.	So far as the complaint that the head teacher had not investigated the matter appropriately, that too was rejected on the basis that the head teacher had done all that could be expected of her.
14.	The other complaints related to the handling of the procedure and to extraneous matters, which I do not need to go into because they do not figure in the submissions made in this case.  So it was that the complaints were rejected.  
15.	The claimants were thoroughly dissatisfied because they took the view that the manner in which the investigation had been carried out fell far short of what was required.  In particular, Mrs Fuller had displayed in her conversation with the therapist an attitude which showed that she had not entered the investigation with an open mind, and further, her failure to interview possible witnesses, namely other children, or to pursue those matters at all, meant that again she had disabled herself from reaching a proper conclusion. 
16.	So it was that a formal complaint was laid before the Ombudsman.  It was a fairly lengthy document.  In summary, it raised four main matters, which I have already touched on.  First, the inappropriate way in which Mrs Fuller had dealt with the therapist.  Secondly, the fact that they had been given inconsistent information by Bromley as to the internal complaints procedures and how these should be pursued.  That relates to the slight confusion as to the right method of complaint -- perhaps not entirely central to the matters in issue here.  Thirdly, the lack of impartiality of the investigation, and the perception on the part of the parents that the Council had done little more than ask the teachers concerned, "You didn't do it, did you"?  And fourthly the inadequate nature of the investigation, particularly the failure to interview children or indeed to give any information as to what potential witnesses had been interviewed.  The result was that J had suffered considerably and distress had been caused to the parents.  
17.	The initial reaction of the Ombudsman was to take the view that he had no jurisdiction to investigate the complaint.  The question of jurisdiction will become important.  I should therefore at this stage refer to the statutory provisions which are in issue here.  Section 26 of the Local Government Act 1974 deals with the matters which the Local Government Commissioner is able to investigate.
18.	Sub-section (1) reads: 
"(1) Subject to the provisions of this Part of this Act where a written complaint is made by or on behalf of a member of the public who claims to have sustained injustice in consequence of maladministration in connection with action taken by or on behalf of an authority to which this Part of this Act applies, being action taken in the exercise of administrative functions of that authority, a Local Commissioner may investigate that complaint."
Bromley is, as one would expect, an authority to which section 26 applies.  
19.	By sub-sections (8) and (10), it is provided: 
"(8) Without prejudice to the preceding provisions of this section, a Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any such action or matter as is described in Schedule 5 to this Act.
... 
 (10) In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the preceding provisions of this section, act at discretion; and any question whether a complaint is duly made under this Part of this Act shall be determined by the Local Commissioner."
20.	Thus it is plain that Parliament has bestowed upon the Ombudsman a very wide discretion to decide what complaints he should or should not investigate, and whether or not to continue or discontinue any such investigation.  However, it is common ground that the authorities make clear that that discretion is reviewable by this court on ordinary judicial review grounds.  Effectively that means, in this context, on Wednesbury grounds.  Authority has made it clear that, because the discretion is a wide one, the court will not easily be persuaded that it is appropriate to interfere and to quash a decision.  So much is apparent from R v the Parliamentary Commissioner for Administration ex parte Dyer 1994 1 WLR 621.  That case concerned the Parliamentary Commissioner, and the court had to deal with arguments by Treasury counsel, it being the first attempt to judicially review a decision of the Parliamentary Commissioner, that the court had no power to do so and it was entirely a matter for Parliament.  That argument failed.  But in the course of considering the scope of judicial review, Simon Brown LJ referred to observations of Lord Donaldson in R v Local Commissioner for Administration ex parte Eastleigh Borough Council [1988] QB 855, where he stated that the fact that Parliament had not created a right of appeal against the findings in a Local Commissioner's report, coupled with the public law character of his office and powers, indicated that there was a right to relief by way of judicial review.  But there would be, Simon Brown LJ went on, a real difficulty in persuading the court that it was appropriate to review the exercise of discretionary powers, again quoting what Lord Donaldson had said in ex parte Eastleigh at page 876: 
"... I am very far from encouraging councils to seek judicial review of an ombudsman's report, which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed." 
Although that case concerned an attack by a Council upon adverse findings in an Ombudsman's report, the same principle clearly applies to applications by individuals who complain that the Ombudsman did not act in a way which gave them the relief to which they thought they were entitled. 
21.	It seems to me that the reality is that we are looking at this in terms of a Wednesbury challenge, and that if it can be shown that the Ombudsman failed to have regard to material considerations or had regard to an immaterial consideration, or of course if he acted perversely, then relief can in principle be afforded. 
22.	Schedule 5 of the Act contains a list of matters which are outside the Ombudsman's jurisdiction.  The relevant paragraph is 5(2).  That provides that he must not conduct an investigation in respect of any action concerning: 
"(b) conduct, curriculum, internal organisation, management or discipline, whether in any school or other educational establishment maintained by the authority." 
23.	Initially, the Ombudsman took the view that that provision precluded him from considering the complaint in this case because it was a complaint about action concerning conduct, management or discipline in a school, to isolate out those matters which are relevant in paragraph 5(2).  It was said in his letter: 
"While I can understand why you would see the two issues as being separate [that is the manner in which the complaint was investigated and the underlying nature of what was complained about], the Ombudsman has taken the view that he will not consider complaints about the operation of the Council's complaints procedure when the issue that was considered as part of that procedure is outside his jurisdiction."  
24.	He advised the claimant that the way to pursue the complaint would be via the Secretary of State.  Incidentally, it seems that under the Education Act the Secretary of State does have power to consider complaints about a school and the manner in which an investigation was carried out, but it is a power which, I am told, is limited to that, and it seems that the appropriate remedy which the Secretary of State might have in such a case is to direct a reconsideration of the complaint to be dealt with in a proper fashion.  It may not be so satisfactory, but there is at least some route to obtain a remedy of sorts.  
25.	The claimant and his wife, following that, wrote a reply in which they submitted that their complaint of maladministration fell within the Ombudsman's jurisdiction, and they stated: 
"We approached the Council as the employers of the teacher concerned, not as a stage in the complaints procedure (they removed themselves as a stage in the school complaints procedure in 2004).  Our complaint is about the conduct of their investigation." 
So they were making there the point that really stems from the two possible means of complaint which had been originally referred to by Mrs Fuller in the meeting of 28 September 2004; that is to say, whether it was a complaint which should be dealt with under the authority's Raising Concerns Procedure, or whether it should be dealt with under the school's Complaints Procedure.  The point they were seeking to make was that, as they were not pursuing it by means of the school's Complaints Procedure, it was outside the prohibition imposed by paragraph 5(2).  
26.	That argument the Ombudsman seems to have regarded as persuasive, because on 5 August 2005 one of his assistants wrote a letter stating: 
"First, I accept that your complaint about the way the Council went about investigating your complaint is one the Ombudsman could investigate.  It remains the position that the Ombudsman cannot investigate what actually happened in school nor can he look at the actions of teachers or school staff."  
27.	The letter then went on to consider what the Ombudsman might achieve, and pointed out that, as a publicly funded body, the Ombudsman had to have some regard to the likely remedy before committing himself to a significant expenditure of public funds in carrying out an investigation.  He continued: 
"Your letter to Mr Davis of 31 August 2004 sets out the outcomes you sought from the Council's investigation.  The only way the Ombudsman might pursue these outcomes for you is to ask the Council to re-investigate the complaint.  This is because, as I have explained, the law does not allow him to investigate the event covered by your complaint to the Council.  I am not, at the moment, satisfied that such a real investigation would be meaningful.  I am aware that the teacher is no longer employed, and any re-investigation would have to start by interviewing her to establish her recollections.  Even if this could be achieved, the recollections of the parties would have become less reliable since the events of 2001.  
I am not therefore at present clear that the Ombudsman could achieve an outcome for you were he to uphold the complaint, which would warrant the expenditure of public funds to achieve it."
28.	He asked for a letter to try to persuade him to a different view, and he would not make a final decision until he had received that letter.
29.	The claimant then went to solicitors, and on 6 September they wrote a letter which did indicate what they wanted from the investigation.  The letter said this: 
"Our clients' position is as follows.  They are not looking to the Ombudsman to invite the Council to conduct a further investigation at this distance of time after the initial investigation and the reinvestigation.  However, they do have an abiding sense of grievance both about the original underlying incident and about the manner in which it was investigated.  They have detailed their criticisms of the investigations -- those of the school and the Council -- in their complaint, and we do not propose to repeat what they have said.  All three members of the family have been seriously affected by what has happened.  The remedy which they now seek is a finding that the Council's investigation was not properly conducted, an apology and recommendations designed to ensure that the Council's practices conform to an acceptable standard in future.  [They] considered that this is of particular importance since they have reason to believe that theirs was not an isolated case: they are aware of other case of failure by the Council to investigate."  
30.	The letter then went on to refer to the guidance on remedies and pointed out that that appeared to contemplate that, in some circumstances, apology was all that was required by way of a remedy, and there was the possibility of the Ombudsman suggesting a review of the authority's practices if persuaded that they had fallen short of what was desirable.  The letter went on: 
"The claimants have also asked us to make clear that they are not inviting the Ombudsman to recommend compensation.  Having said that, they do harbour a real sense of outrage about the Council's conduct of its investigation, and a desire that the Council should be invited to revise its procedures for the greater protection of others who might in future find themselves having to use its complaints procedures." 
31.	Having received that letter, on 3 October the Ombudsman replied in these terms: 
"Thank you for your letter to Stephen Purser of 6 September 2005.  The result of your letter I have reviewed the file and the views expressed in Mr Purser's letter of 5 August.  
I have considered carefully the points you have made on behalf of your clients.  But I do not think that they carry significant weight to overcome the views expressed by Mr Purser in his letter.  
We are agreed that I cannot investigate what happened in school, nor the school's own investigations.  So even if I were to investigate the Council's subsequent actions, this would have no effect on your clients' outrage over what happened in school and the school's response.  I understand their sense of grievance over the Council's investigation, but I do not believe it would be a proper use of my powers to investigate this when the substantive injustice cannot be resolved by any investigation I can conduct; and when my jurisdiction prevents me from looking at the original events about which your clients complained.  
I do not therefore intend to pursue your clients' complaint further." 
32.	There was, and this is I am bound to say unfortunate -- I understand why it happened because of the need to pursue legal aid -- no protocol letter sent to the Ombudsman so there was no opportunity to explain, as Mr Ash put it, on a somewhat more informal basis than applies to an acknowledgment of service to the allegations that were made.  However, in the acknowledgment of service, these further points were made and they have since been confirmed by a statement from the Ombudsman: 
"16.  The 'outrageous conduct' alleged concerned a meeting which had been authorised by the complainants between officers of the Council and their son's therapist.  The detail of the complaint is set out in the letter [I have already referred to it].  It may have been possible for the defendant to investigate this matter, without looking into earlier events, for the purpose of establishing whether, as was claimed, the Council's officers had exceeded their authority or were displaying a prejudgment of the issues they were considering.  In the absence of an investigation it would not be possible to establish definitively whether such a limited investigation would serve any useful purpose.  
17.  Moreover, it is far from certain that any meaningful or fair conclusion would be reached on these matters without investigating the underlying events, not least because, in the absence of such investigation, the defendant could not form a view as to whether any alleged bias by the officers may have affected the result of the Council's investigation."  
33.	There are a number of criticisms that can be levelled and have been levelled at the letter of 3 October, coupled with the extension of reasons set out in the acknowledgment of service.  The point is made that the letter did not deal with the substantial point being made in the solicitor's letter that the concern of the claimants was the effect on them and their son of the defects in the investigation.  That was the injustice with which they were concerned, not at that stage the injustice that had been done to their son by what had happened at the school.  That of course was the background.  That had led to the complaint, but they recognised, as the letter made clear, that there was no possibility of re-opening the investigation into that.  So what they were concerned with was to get redress in the form of an apology, if after investigation the Ombudsman was persuaded that their complaints had merit and the investigation had not been conducted in a fair and proper manner.  There was considerable force in the concern that the letter of 3 October did not grapple with the matters that had been raised by the solicitors.
34.	Further, the points raised in the acknowledgment of service did not help the Ombudsman because, first, he was not concerned with the result of the Council's investigation, or should not have been.  What he was concerned with and only concerned with, so far as the complaint was concerned, was the manner in which that investigation had been carried out.  It was not necessary for him to go into any question of the outcome or result of the investigation, or indeed the background, in the sense of pursuing any enquiries into the details of it, in determining whether the investigation had been carried out fairly and properly; or, to put it in the context of complaints to the Ombudsman, whether there had been maladministration in the manner in which the investigation had been carried out.  That is the thrust of the complaint that is made by the claimant in this case.
35.	The first point that has to be considered is what is the true construction of paragraph 5(2) of Schedule 5 to the 1974 Act.  Mr Grodzinski suggested that that was not an issue which was directly before me because the defendant Ombudsman did not assert through counsel that he had no jurisdiction.  Indeed, he had accepted jurisdiction, albeit initially he had thought that he had none, and accordingly I should approach this case on the basis that, although it might be arguable one way or the other, since both parties did not argue against jurisdiction, it is not a point that I should take myself.  I am afraid I do not think that I can properly adopt that approach.  
36.	It seems to me that since the point is there, and Mr Ash has raised it in his submissions and has indicated that it is a clearly arguable point, it is essential that I deal with it, because if indeed there is no jurisdiction, it would be quite wrong for me to make any order which could only be put into effect if there was jurisdiction.  Since the matter is before me, I therefore have to deal with it.
37.	The wording of section 5(2) is undoubtedly wide.  The action is what is the subject of the complaint, and the complaint is into the investigation.  That, therefore, is the action which has to be considered within the terms of paragraph 5.  Indeed, if one goes back to section 26(1), one sees that the jurisdiction is based upon a written complaint by a member of the public who claims to have sustained injustice in connection with action taken by an authority in the exercise of administrative functions of that authority.  
38.	26(8) prevents the Ombudsman from conducting an investigation in respect of any such action as is described in Schedule 5.  The action is action concerning conduct or discipline in any school.  The investigation of what happened in the school is, on the face of it, in my view, clearly covered by those words, because what the authority was doing was to take action, that is to say, to investigate matters which concerned the conduct in the school.  It seems to me that the purpose behind paragraph 5 was to preclude the Ombudsman from looking into matters which did concern what went on in local authority schools.  The very fact that in this case the Ombudsman has recognised the difficulty in drawing the line between what can be dealt with in considering complaints such as this about the manner of investigation indicates the difficulties that arise if matters such as this are susceptible to the jurisdiction of the Ombudsman.  It is possible, as Mr Ash has submitted, to think of situations where one can possibly divorce the conduct of the investigation from the underlying reason for that investigation.  He gave as an example where complaints had been made, but the authority had simply done nothing to process them, and they sat in a file and no one had done what they should have done.  That, one might be able to say, was effectively a complaint that they were not carrying out what they were supposed to and their action in that case was, I suppose, inaction, and they were doing nothing that they should do.  One can see that there might be arguments that that could be covered.  But if they were doing anything active, however misguided, in the carrying out of the investigation, then it seems to me that would be action concerning conduct in school.  In those circumstances, it is difficult to see how that cannot fall within the very wide words of paragraph 5(2).  
39.	Mr Grodzinski was taken, I am bound to say, a little bit by surprise at the judicial reaction to this point and endeavoured at short notice to see whether he could find any authority which assisted on the construction of the paragraph.  His industry discovered a Northern Irish case, Ewing v the Trustees of the Stockham Valve Limited Staff Retirement Benefit Scheme [2000] OPLR 257.  But that dealt with the expression "concerned with the administration of a scheme".  It was a case concerning the jurisdiction of the Pensions Ombudsman, and the question was, as appears from the extract of the judgment, whether work done by a solicitor who was instructed to, and did, write a letter to a debtor could be said to be a person concerned with the administration of the scheme.  It is perhaps not at all surprising that the court decided that he could not.  But the wording is very different.  A person concerned with something is not the same as, and is not, in my view, a very helpful indication as to what should be the meaning of the expression "any action concerning" something.  Although I commend the industry of Mr Grodzinski, I am afraid it did not produce any particularly helpful result.
40.	In the circumstances, I am satisfied that the initial reaction of the Ombudsman was correct, and that indeed he did not have jurisdiction to deal with the complaint.  
41.	My attention has been drawn to paragraph 15 of his guidance that has been issued, in which this is said: 
"Consideration should always be given to whether there is some practical action which would provide all or part of a suitable remedy.  This may be appropriate, in particular, when the injustice stems from failure to take some specific action.  So, for example, the action required might be to: 
• issue a final statement of special educational needs where that has not yet been done; 
• take action to make the provision specified in a statement of special educational needs."
That by itself does not indicate that there is any problem with paragraph 5 because of course it would depend upon what action was or was not taken.  But it does not seem to me that that is in any way ultra vires, provided of course that it does not extend to a complaint that, for example, the local authority did not properly monitor what the school was actually doing, or a suggestion that the local authority should have taken some specific action to deal with what was in fact happening in the school.  That as it seems to me would fall foul of paragraph 5.  But, as a general principle, the failure to make the provision, that is to say to provide the money to enable the provision to be made, would certainly not fall within the prohibition.  The matter would turn upon the facts of any individual case in that sort of situation.  I do not need to go into the details; it is not directly before me.  But, as I say, I do not regard that as an indication against the construction which I have considered to be the correct construction of this particular paragraph of the Act.
42.	That being so, this claim must obviously fail.  However, I ought to consider the other matter, the question of whether the Ombudsman's discretion was exercised in such a manner as means that there should be a successful judicial review.  I have already referred to the letters and to the problems that I think are created.  It does seem to me that the reasons given in the letter of 5 October do not properly grapple with the letter sent by the solicitors.  They do not explain why the Ombudsman is taking the view that it would be inappropriate, on the assumption that he has jurisdiction, to investigate in particular the matters of the alleged bias by Mrs Fuller, and the failure to carry out obvious investigations, interviews with the children and so on, and that there was a real benefit to the claimants in obtaining the Ombudsman's decision that there had been maladministration if the Ombudsman was so persuaded.  That injustice can extend to that sort of situation and to that sort of remedy is clear from the decision of Sedley J (as he then was) in R v Parliamentary Commissioner for Administration ex parte Balchin [1998] 1 PLR 1.  At page 11 of the report at letter E, the learned judge said this: 
"Less judicial attention has been devoted so far to the meaning of injustice in the legislation, but de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed) write at para 1-102: 
''injustice' has been widely interpreted so as to cover not merely injury redressible in a court of law, but also 'the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss'.  
It follows that the defence familiar in legal proceedings, that because the outcome would have been the same in any event there has been not redressible wrong, does not run in an investigation by the Commissioner."
43.	I should say that it is obvious, and indeed the point is made by Mr Ash, that the Ombudsman is well aware of that authority, and in his letter of 3 October indicated that he had had regard to the points made -- indeed had carefully considered the points made -- in the solicitors' letter.  It is I think unfortunate that he did not go on to explain why he took the view that those points specifically did not persuade him to change his mind, because the reference is then made to the inability to give any remedy in relation to what he described as the substantive injustice, namely the injustice that was said to have affected the family as a result of what had been done at the school.  However, the point is made that, whether or not that reasoning could have been better expressed, the fact is that it would have been impossible to deal with the matter in any meaningful fashion if it was impossible to go into the underlying complaint about what had happened in the school at all.  Thus, for example, in relation to the concern that the children, who were alleged to have been possible witnesses, had not been investigated, it would have been necessary for the Ombudsman to have had words with Mrs Fuller to obtain her explanations.  Her explanations might well have raised matters which could only be entirely resolved by considering what in fact the children had to say, that is assuming that the children had not in any way been interviewed or that no attempts had been made to contact their parents to see whether there was any objection to their being interviewed.  Whether or not the reasons given by Mrs Fuller were good would be a matter which the Ombudsman would have to take into account in deciding whether her conduct amounted to maladministration, because it was to an extent her conduct which was in issue in relation to this complaint.  Thus, he clearly foresaw the possibility that it would not be possible to obtain a fair result without going into those matters which were outside -- and clearly outside -- his jurisdiction.  As I have said earlier, it may be that this problem supports the construction that I have placed upon the paragraph, indicating that complaints such as this are not within the jurisdiction of the Ombudsman.  
44.	He was entitled, in the exercise of his discretion, to take the view that the expenditure of money in this case in carrying out the investigation was not likely to be reasonably incurred because he was not likely to be able to carry out the full investigation that could produce the fair result.  Of course, he had to bear in mind that if he had decided that the complaint was upheld without being able to obtain all the necessary explanations from the Council, then they might have good reason to challenge the findings that he made.  If in the end he was unable to reach a conclusion which satisfied either side, that was not a good exercise of his powers.  I am, as I say, persuaded that the explanations given by the Ombudsman were not as satisfactory as they ought to have been, and his letter did not spell out the reasons in a proper fashion.  But, when one looks at the matter overall, and one sees the problems that would have resulted if he had gone on with this investigation, it seems to me that his decision was one which he was entitled to reach in the exercise of his discretion.  
45.	So although I have considerable sympathy for the claimants, I would not have allowed this claim even if I had been persuaded that the Ombudsman had jurisdiction.  In those circumstances, this claim must fail.
46.	MR ASH:  My Lord, I understand the claimant is community funded in this case, and there is, as I understand it, a standard form of order in these cases, if your Lordship is minded to consider the question of costs.  It is effectively not to be enforced without order of the court.  My Lord, I would ask for the standard order.
47.	MR JUSTICE COLLINS:  Mr Grodzinski? 
48.	MR GRODZINSKI:  I cannot resist that, my Lord.  I might have been able to do, but for the concluding paragraphs of your Lordship's judgment.
49.	MR JUSTICE COLLINS:  I had wondered whether -- in a sense, you were led into a false sense of hope by the failures that I have found to have existed.  I know the importance of public funds from one to another, but the reality is that you are almost certainly not going to get anything out of this.  I think that, overall, I am going to be a little bit hard on you perhaps, but I think I shall say no order.
50.	MR GRODZINSKI:  My Lord, I am grateful.
51.	MR JUSTICE COLLINS:  Other than of course the usual legal aid taxation, or whatever it is called now -- detailed assessment. 
52.	MR GRODZINSKI:  Detailed Community Legal Services assessment.
53.	MR JUSTICE COLLINS:  Yes, you can have that.
54.	MR GRODZINSKI:  Can I ask, my Lord, for permission to appeal, please?  I do so on the following grounds.  They are directed primarily to the first basis on which your Lordship -- 
55.	MR JUSTICE COLLINS:  I understand that.  No, I appreciate that this is quite an important point, but I think it might be better for you to wait and consider the transcript, when it comes, because this was an extempore judgment and there may be a few amendments in the transcript.  So what I will do, Mr Grodzinski, is I do not think it is appropriate to grant you leave to appeal.  I think that is a matter for the Court of Appeal, particularly as I have decided against you on the other issue.  But I will extend your time for considering an application to the Court of Appeal to -- how long do you normally have, I have forgotten? 
56.	MR GRODZINSKI:  I think I normally have 14 days.
57.	MR JUSTICE COLLINS:  You can have 14 days from receipt of the corrected transcript.  I hope, Mr Ash, you do not object to that? 
58.	MR ASH:  No.
59.	MR JUSTICE COLLINS:  It seems a reasonable order.  You may want to support an appeal for all I know.
60.	MR ASH:  That would be an interesting situation to find ourselves in, my Lord.
61.	MR JUSTICE COLLINS:  All right, we will leave it like that. 
62.	MR GRODZINSKI:  I am sorry to be a pain, my Lord.  I rather feel that if the transcript is left as it is now, and I have not at least tried to enumerate the argument as to why your Lordship should grant leave, I might be asked why I did not.  I was going to give those arguments, and your Lordship said -- 
63.	MR JUSTICE COLLINS:  Okay, sorry.
64.	MR GRODZINSKI:  Can I least have a crack?  
65.	MR JUSTICE COLLINS:  Get them on the transcript, yes.
66.	MR GRODZINSKI:  (1), it is a novel point; (2) it is a point of general importance to the way in which the Ombudsman exercises his discretion in future cases; and (3) it must at least be arguable both ways, given that the Ombudsman himself accepted jurisdiction in this case.  So the test for permission to appeal to the Court of Appeal is, in my submission, plainly met.
67.	MR JUSTICE COLLINS:  The problem I have in part I am afraid, Mr Grodzinski, is that frankly it is in the interests of everyone in this case that it is brought to an end unless the Ombudsman himself takes the view that this is a case he is not satisfied with, in which case he can no doubt inform you that you can make a joint application to the Court of Appeal, which I do not doubt will succeed in persuading them to grant leave. 
68.	MR GRODZINSKI:  Getting permission.  I will do my best afterwards.  
69.	MR JUSTICE COLLINS:  So I think your best bet is to see whether you can persuade the Ombudsman that my decision on point (1) is wrong.  I am not anxious that this should really proceed because I do not think that, at the end of the day, your clients are likely to succeed.  Ouseley J made the point when he granted permission and, as it were, at least put up an amber light, if I may put it that way, and in those circumstances I do not think it would be right for me to encourage the use of public funds in this case.  But, as I say, it may be that the Ombudsman takes the view that he would like this to be clarified by the Court of Appeal, in which case I do not doubt that a joint application would be likely to persuade the Court of Appeal.
70.	MR GRODZINSKI:  I am grateful, my Lord.