Philip Milburn, R (on the application of) v The Local Government and Social Care Ombudsman
[2023] EWCA Civ 207
Piffs Elm Limited, R (on the application of) v Commission for Local Administration in England & Anor.
10 May 2023
[2023] EWCA Civ 486
Court of Appeal
A company paid a big planning fee, then the council refused to return it. The Ombudsman initially sided with the company, then changed his mind. The court said the Ombudsman couldn't change his mind, but it was okay that he ended up saying the council didn't have to pay back the money because the question was really a legal one for the courts to decide, not the Ombudsman.
Key Facts
- •Piffs Elm Limited (Piffs Elm) applied for planning permission three times, with the last application resulting in a fee of £41,244.
- •The Council refused the third application and refused a refund of the fee.
- •Piffs Elm complained to the Local Government Ombudsman (LGO).
- •The LGO initially found fault with the Council for not considering refunding the fee (Decision 1).
- •The LGO later withdrew Decision 1 and issued a second report finding no fault (Decision 3).
- •Piffs Elm challenged the LGO's decisions through judicial review.
Legal Principles
Functus officio doctrine: Once a decision is made, it cannot be withdrawn unless there's an express power or a compelling reason.
Common law principle, considered in context of the LGA
Local Government Ombudsman's powers: The LGO has discretion to investigate matters of maladministration but cannot decide legal disputes or questions best left to the courts.
Local Government Act 1974 (LGA), Part III
Interpretation Act 1978: Implied powers can be exercised from time to time as occasion requires, unless a contrary intention appears.
Interpretation Act 1978
Town and Country Planning Act 1990: LPAs have the power to decline to decide an application if similar applications have been refused previously.
Town and Country Planning Act 1990
Local Government Act 2000: Relevant authorities may make payments in cases of maladministration.
Local Government Act 2000
Outcomes
Decision 1 (LGO finding fault with the Council) was unlawful.
The LGO lacked jurisdiction as the core issue was a legal question (whether the Council had power to refund) which should have been decided by the courts, and the proviso to section 26(6)(c) of the LGA did not apply.
The LGO had no power to withdraw Decision 1.
The LGA does not grant an implied power to withdraw a finalized report; there is no compelling reason within the statutory scheme to imply such a power.
Decision 3 (LGO finding no fault) was lawful.
The LGO correctly determined that, with the narrowed scope of the complaint, he had no jurisdiction to investigate further because of the legal issues involved, given that a judicial review was an available and reasonable alternative remedy.
Piffs Elm's appeal was dismissed.
Decision 1 was unlawful due to jurisdictional issues, the LGO had no power to withdraw it, and Decision 3 was lawful as the LGO correctly assessed his jurisdiction given the narrowed scope of the complaint.
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