Judgment on Duty of Care in Armed Forces Complaints Process: Errors in Decision-making Scrutinized.

Citation: [2023] EWHC 3311 (Admin)
Judgment on

Introduction

The High Court case of Mark Moss, R (on the application of) v The Service Complaints Ombudsman of the Armed Forces (No.3) ([2023] EWHC 3311 (Admin)) delves into the Service Complaints Ombudsman’s decision-making process regarding a former soldier’s withdrawn service complaints, SC1 and SC2, and a subsequent third complaint, SC3. This article analyses the key topics, explores the legal principles applied, and outlines the outcomes of the judicial review instituted against the Ombudsman’s decision.

Key Facts

Mr. Moss, a former soldier, initiated a series of service complaints related to his treatment by the armed forces regarding medical care and terms of service. Following a process that involved transitioning his complaints to Lieutenant Colonel McCall and a specific conversation where he was advised that “nothing further to be gained” from the complaints, Mr. Moss elected to withdraw SC1 and SC2. He later initiated SC3, asserting failures related to the process and closure of his earlier complaints, which the Service Complaints Ombudsman (SCOAF) initially found in his favor, but the Appeal Body later overturned. Judicial reviews ensued, focusing on the Ombudsman’s decision-making process and were centered around the lawfulness of Lt Col McCall’s advice and actions regarding the closure of SC1 and SC2.

The case brings to the fore the intricacies of duty of care within the service complaints process, the role of Assisting Officers, and the standard of review for administrative decisions. It addresses the parameters of a ‘duty of care’ that the military owes to its personnel when handling service complaints, particularly in relation to individuals with mental health vulnerabilities.

The judgment emphasizes the necessity for a supporting safeguard in the form of an Assisting Officer’s presence, highlighting that an Assisting Officer should assist with understanding processes, consequences, and ensure informed decision-making, especially for vulnerable individuals.

The ‘reasonableness defence’ is also prominent, stipulating that the Ombudsman possesses a wide margin of appreciation, and that administrative decisions are reviewed against a standard of reasonableness, not accuracy. Yet, decisions must be well-founded, and the weight given to relevant factors must also be justified.

Specifically, the judge examines whether it was reasonable for SCOAF to conclude that the failure to ensure an Assisting Officer’s presence and failure to fully inform Mr. Moss of the consequences of closing his complaints were not breaches of the duty of care.

Outcomes

The court concluded that SCOAF’s decision could not stand due to public law errors. These errors included underestimating the role of an Assisting Officer, an inappropriate absence of providing consequential advice to Mr. Moss upon the withdrawal of his complaints, and placing undue reliance on post-meeting communications when assessing the likely actions Mr. Moss would have taken if properly advised.

Additionally, the court found SCOAF’s reliance on the advice given by Lt Col McCall that there was “nothing further to be gained” from the complaints to be particularly troublesome since this advice could have inappropriately influenced Mr. Moss’s decision to withdraw his complaints.

Conclusion

The court’s decision underlines the essential protections that should be in place for service personnel making serious complaints, particularly those with known vulnerabilities. It affirms that the duty of care extends to providing a supportive environment, clear explanations of the system, and fair warnings of the consequences of critical decisions within the complaints process. The ruling draws a clear line that underscores the principle that those handling complaints must avoid giving advice that could dissuade individuals from pursuing their rightful avenues of redress. The judgment mandates the necessity of conscientious and reasoned decision-making by the Ombudsman, and while there is recognition of the complexities involved, it ensures that the process respects legal safeguards and duties of care at all stages.

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