Mark Moss, R (on the application of) v The Service Complaints Ombudsman of the Armed Forces (No 3) (Remedy)
[2024] EWHC 669 (Admin)
L, R (on the application of) v The Service Complaints Ombudsman for the Armed Forces
9 May 2024
[2024] EWHC 1094 (Admin)
High Court
A soldier's complaint about unfair medical discharge was rejected as too late. The judge ruled the Ombudsman wrongly thought she couldn't consider the complaint's fairness when deciding if it should be considered late, so the decision must be made again correctly.
Key Facts
- •Claimant, a medically discharged soldier, alleges disability discrimination.
- •Claimant's service complaint was deemed inadmissible due to being out of time.
- •Claimant's application to the Service Complaints Ombudsman for Armed Forces (SCOAF) to review the inadmissibility decision was also rejected as out of time.
- •Claimant brought judicial review proceedings, challenging the SCOAF's decisions.
- •The main issue is whether the SCOAF lawfully rejected the Claimant's application for review, considering the merits of the underlying service complaint.
- •The SCOAF argued it was not entitled to consider the merits of the complaint when deciding whether it was 'just and equitable' to extend the time limit.
Legal Principles
The Ombudsman's discretion under Regulation 7(2) of the Armed Forces (Services Complaints) Regulations 2015 is broad and allows consideration of the merits of the underlying service complaint when deciding whether to extend the time limit.
Regulation 7(2) of the 2015 Regulations
Unless a potentially material consideration is mandatory or so obviously material that its omission constitutes an error of law, whether or not to consider it is a matter for the decision-maker's judgment.
R(Khatun) v Newham LBC [2004] EWCA Civ 55
The 'just and equitable' test under Regulation 7(2) assesses whether it is just and equitable to extend time, not whether the reasons for the delay are just and equitable.
Regulation 7(2) of the 2015 Regulations
Administrative decisions should not be interpreted with undue legalism; a holistic approach is necessary.
Case law on interpretation of administrative decisions
In judicial review, the court does not substitute its own decision for that of the decision-maker; it only intervenes if the decision-maker erred in law.
General principles of judicial review
Outcomes
The claim for judicial review was allowed under Ground 1.
The SCOAF acted on an erroneous understanding of Regulation 7(2), believing it precluded consideration of the merits of the Claimant's application. The Court found the Ombudsman's interpretation of Regulation 7(2) to be incorrect, leading to the decision being remitted for reconsideration.
Ground 2 (misapplication of the 'just and equitable' test) was rendered academic by the outcome of Ground 1.
The Ombudsman's decision will be reconsidered, addressing the correct application of the 'just and equitable' test.
The application to amend the claim to include a new Ground 3 (procedural unfairness) was refused.
The amendment was made too late, and the Claimant failed to demonstrate material prejudice from any alleged procedural failures.
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