Mahajan, R (on the application of) v Local Government Ombudsman

MR JUSTICE MUNBY: This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Stanley Burnton J on 9th October 2006. The claimant, who has throughout acted in person and who has appeared before me in person this afternoon, seeks permission to challenge the decision of the Local Government Ombudsman. His complaint is, in substance, that the Local Government Ombudsman misdirected himself in law, failed properly to investigate his complaints and then without proper cause decided to discontinue his investigation into the claimant's complaint, which was a complaint against a decision of the Appeal Panel of Kingsbury High School not to offer the claimant's daughter a place at the school.

The Local Government Ombudsman, who has elected, as is his right, not to be represented at the hearing today, disputes the claim, denying that he has erred in law and asserting that the decision to discontinue the investigation was a decision lawfully and properly taken in the appropriate exercise of the discretion conferred upon him by section 26(10) of the Local Government Act 1974.

The claimant's case has been set out at exhaustive length in a number of documents. It was first set out in the form of a detailed statement of grounds, together with a lengthy statement of facts, forming part of his Form N461. As part of his claim for permission he sought urgent consideration. That prompted solicitors acting on behalf of the Local Government Ombudsman to write a letter to the court dated 1st September 2006, the same date in fact as the judicial review claim had been filed, setting out in summary their client's response to the allegations. That prompted the claimant the following day, on 2nd September 2006, to write a substantial letter to the court reiterating and elaborating his complaints.

On 6th September 2006 the claimant's application for urgent consideration came before Lloyd Jones J, who adjourned the claim for interim relief, albeit abridging time for filing acknowledgment of service, indicating it would be inappropriate to grant relief without allowing the defendant an opportunity to state his case in the acknowledgment of service. The Local Government Ombudsman did that in an acknowledgment of service dated 19th September 2006 to which were attached in the usual way a summary of his grounds for contesting the claim.

The service upon him of that document prompted the claimant to write to the court on 20th September 2006, indicating his intention to serve further material, which material, in the form of a 15 page document entitled "claimant's comments on the defendant's grounds for contesting the claim", was submitted to the court under cover of a letter dated 1st October 2006. To that document was attached a further 19 pages of supplemental material.

It was in that state of affairs that the matter came before Stanley Burnton J, who, on 9th October 2006 as I have already mentioned, refused permission, giving as his reasons:

Almost immediately upon receipt of that order the claimant gave notice of renewal of his application, supporting that notice with a closely typed document, running to some three and a half pages, entitled "grounds of renewal". That was followed, on 22nd January 2007, by a skeleton argument, running to 11 closely typed pages, to which were attached a further 11 pages of documents, which skeleton argument the claimant has helpfully supplemented this afternoon not merely with his oral submissions but by a further three page document headed "arguments".

I do not propose to go in detail through that very voluminous mass of material with its repetitious analysis of a long list of complaints. The claimant, as his final oral submissions indicated, focuses in reality upon two, and only two, of the many matters raised in his various written presentations. The first is a complaint that the Local Government Ombudsman wrongly failed to find that there had been discrimination by the school contrary to article 14 of the European Convention and accordingly in breach of its obligations under section 6 of the Human Rights Act 1998, in as much as it had a policy, as many schools have, of affording preference to siblings. The claimant's complaint is that the policy of affording preference to siblings is a policy which is ex facie unlawful by virtue of article 14 and section 6, as being what he asserts is discrimination on the grounds of status.

His second fundamental complaint is that the Local Government Ombudsman erroneously exercised his discretion in deciding to discontinue the investigation.

The reality, unhappily, is that the claimant's allegations made repeatedly in writing, and therefore not merely allegations made under the pressure of oral advocacy, involve a variety of very serious allegations against the Local Government Ombudsman, indicating the underlying nature of the complaints which are being made in these proceedings. These complaints are to be found in many places, but for the purposes of convenience I can take them from the claimant's skeleton argument, where in paragraph 4 he helpfully sets out what he describes as the five heads of his complaint, those five heads being set out in subparagraphs (1) to (5) inclusive of paragraph 4.

Unhappily, as one can see from paragraph 4(3), amongst the claimant's complaints is one that the Local Government Ombudsman:

To even more serious effect the claimant in paragraph 4(4) alleges that:

The claimant in the course of his oral submissions has also sought to address me on various issues of educational policy which seem to me, with respect to the claimant, to have little, if anything, to do with his complaints against the Local Government Ombudsman, just as he has sought to criticise, again, as it seems to me, almost wholly irrelevantly, what he contends are inappropriate policies of the particular London Borough with which we are here concerned and what he asserts are inappropriate policies of the particular school involved.

There is not from beginning to end of the extensive written material and supporting evidence put before the court in this case a shred of evidence which even begins to support or justify any of those very serious allegations made by the claimant against the Local Government Ombudsman. These allegations, including those I have specifically referred to and other similar allegations, are in the sense in which lawyers will be familiar with the use of this word scandalous. They are utterly devoid of any arguable basis. Insofar as the claim proceeds on the basis of such allegations it is scandalous, vexatious and an abuse of the process of the court.

Returning to the two allegations which the claimant puts at the forefront of his case, there is, in my judgment, not even the beginnings of any arguable basis for complaint. Insofar as concerns the complaints of unlawful discrimination, one only has to rehearse, as I have done, the way in with the claimant puts the case to be able to see that it is self-evidently lacking in all substance.

I do not propose to take up time going through the claimant's lengthy submissions dealing with a large number of points of law and a large number of reported cases. I am entirely satisfied, as my brother Stanley Burnton J was satisfied, that insofar as the claimant alleges that the Local Government Ombudsman misdirected himself, or otherwise erred in law, there is no arguable basis for any such complaint.

I do no injustice to the claimant if I deal with the matter, as I propose to do, in this compendious fashion. The Local Government Ombudsman in the acknowledgment of service which, as I have said, was served on his behalf on 19th September 2006, has set out summary grounds for contesting the claim. Those grounds demonstrate in the most compelling fashion and beyond possibility of successful refutation that there is no arguable substance in any of the claimant's complaints.

At the end of the day, having dismissed, as I do, each of the claimant's complaints, insofar as it is founded on an allegation of error of law or misdirection, the remaining kernel of the claimant's complaint here is the wrongful exercise by the Local Government Ombudsman of his discretion. As the Local Government Ombudsman points out in his summary grounds contesting the claim, his function and remit is to consider whether or not there was maladministration causing injustice. It is not, as he correctly points out, his function to substitute his view for that of the decision maker. Put another way, as he correctly points out, there is no appeal on the merits to the Local Government Ombudsman from the decision of the Appeal Panel.

This is a case in which, as the Local Government Ombudsman has pointed out in his summary grounds for contesting the claim, he did make a number of findings of fault adverse to the way in which the claimant's appeal had been handled by the Appeal Panel. He found that there were:

He went on to find that, even though both the Governing Body and the Appeal Panel were "at fault to some degree", neither the claimant nor his daughter had suffered injustice as a result.

The Local Government Ombudsman's summary grounds for contesting this part of the claim are as follows:

I entirely agree with that. The summary grounds continue:

In these circumstances, despite all the subsequent material put before the court by the claimant and despite everything put to me this afternoon by the claimant in the course of his oral submissions, I agree entirely not merely with the decision, but also with the reasons for that decision given by Stanley Burnton J when dismissing this application on the papers.

There is a further aspect of the matter which seems to me not irrelevant to draw attention to. The claimant's daughter is now 11 years old. In circumstances which I need not go into, she has, as the claimant readily acknowledged, lived with her mother and not with the claimant for the last eight years. That, as I understand it, is not as a result of any order of any court; it is the arrangement which has been arrived at between the claimant and, as she now is, his former wife. But, if I may adopt the terminology familiar in the Family Division, the fact is, and as I understand it has for the last eight years been, that it is the mother and not the claimant who is the residential parent of the claimant's daughter.

The claimant accepts that his daughter is in fact at school in a place which has been found for her and with which, although the claimant was not prepared to accept this, it is plain that the mother is content. I draw attention to that matter because it seems to me to illustrate that not merely are these proceedings devoid of merit, but they seem not to be serving any useful purpose in terms of what might be thought to be their objective, mainly the provision of appropriate education for the claimant's daughter. The fact is that his daughter is being educated in a school where her mother, the residential parent, has accepted she will be.

Be that as it may, these proceedings are, for the reasons I have given, utterly lacking in merit and must be dismissed. In very significant measure they are, for the reasons I have already described, scandalous, vexatious and an abuse of the process of the court. Insofar as that is not a categorisation which can properly be applied to certain parts of the claim, the remaining parts of the claim are for the reasons I have already given nonetheless devoid of arguable merit. Accordingly, this renewed application for permission must be dismissed.

Stanley Burnton J when refusing permission, and having been invited to do so by the Local Government Ombudsman, made an order that the claimant was to pay the Local Government Ombudsman's costs in the sum of £1,200. That order, which the claimant has not, as it happens, sought to challenge, but which he would not in any event have been able successfully to challenge, will stand. The Local Government Ombudsman, as I have indicated, has, perhaps understandably in the circumstances, chosen not to attend or be represented this afternoon, and there is not, so far as I am aware, any application from him for any further costs.

Accordingly, the order I propose to make is an order which will (1) dismiss the claimant's renewed application for permission to apply for judicial review and (2) give the Local Government Ombudsman liberty to apply, if so advised, for any further order for costs that he may wish to seek against the claimant. For the avoidance of doubt that order will be expressed to be made on the basis that the order for costs made by Stanley Burnton J will stand in the sum of £1,200.

THE CLAIMANT: Obviously I make an application for leave to appeal.

MR JUSTICE MUNBY: Mr Mahajan now applies for permission to appeal --

THE CLAIMANT: Without knowing the grounds of appeal? I believe this court has acted out of its jurisdiction. There is -- the fact is -- it is undeniable fact that the defendant is wrong not to find that Appeal Panel by not listening to all my grounds of appeal, as per the President of the Court of Appeal, denied a fair hearing. That is the declaration I want it and that is a genuine and lawful declaration of a (inaudible). The Court of Appeal may take a different view, whether this court has the authority to disregard the findings of a superior court. In my opinion -- it is my submission this court has acted outside its jurisdiction by not following the precedent of the superior court and I have perfectly genuine case to ask the Court of Appeal to determine whether this court has authority to disregard the precedents of the superior courts.

Secondly, the court has misinterpreted my claims.

Furthermore, this court has no evidence that her mother accepted the place. It is just by implication that my (inaudible) that she accepted. Even if it was acceptance, the fact remains she was misguided and she wasn't questioned. The court has disregarded those facts.

There is undeniable and undisputed evidence that Appeal Panel was wrong as per the precedents of the Court of Appeal and this court has no jurisdiction to disregard the precedents of the Court of Appeal.

MR JUSTICE MUNBY: Thank you.

Mr Mahajan seeks permission to appeal on the basis, first, that I have acted without jurisdiction, although, as I understand it, that submission is in reality a complaint that I have erred in law by failing to apply what he says is a relevant and governing decision of the Court of Appeal. Secondly, he complains that I have decided the matter in the teeth of and in defiance of the evidence. Thirdly, he complains that in one respect I have acted and I have decided the matter in the absence of relevant evidence.

I think I am right in saying that in a situation where the judge at first instance has refused a renewed application for permission to apply, the disappointed claimant's remedy is not to seek permission to appeal from that judge but rather to make his own application to the Court of Appeal.

If it is appropriately an application which in the first instance is made to me for permission to appeal, I refuse that application. I have given my reasons. Nothing which Mr Mahajan has said since I gave judgment makes me wish to reconsider or elaborate the reasons I have given, and, for the reasons I have given, his claim, so far as it is not scandalous, vexatious and an abuse of the process of the court, is devoid of arguable merit.

There is, in my judgment, no realistic prospect of the Court of Appeal taking a different view and there is certainly no other reason why the Court of Appeal should be troubled with this matter. In the circumstances, if and in so far as I have jurisdiction to consider the application, I refuse Mr Mahajan's application for permission to appeal. He can, of course, renew his application, or make whatever application in whatever form he may be advised, direct to the Court of Appeal.

THE CLAIMANT: I have a further application. Could I possibly have the transcript of the judgment at public expense?

MR JUSTICE MUNBY: No. If the Court of Appeal takes the view that it requires to see a transcript of my judgment, then no doubt the Court of Appeal will make an appropriate direction for the provision of the transcript.

THE CLAIMANT: My Lord, obviously I will be prevented from filing the application.

MR JUSTICE MUNBY: Mr Mahajan, if you wish to obtain a transcript at your own expense then you do not need my permission to do so and you can obtain that transcript at your own expense. Nothing which I have said is intended to mean or does mean that you cannot obtain the transcript. If you are inviting me to direct that a transcript of my judgment be provided to you at public expense, then I am not prepared to make that order. It will be open to you to invite the Court of Appeal, if it thinks appropriate, to order that public money should be expended for that purpose.

THE CLAIMANT: One final submission. Could I ask the court to stay execution of order until the matter has been determined by the Court of Appeal?

MR JUSTICE MUNBY: Mr Mahajan now seeks an order staying execution of the order. I refuse that application for two quite separate reasons. In the first place, since the only order I have made is an order dismissing his renewed application for permission to apply for judicial review, there is no substantive order execution of which requires to be stayed. Secondly, and in any event, since his application is, in my judgment, utterly devoid of merit and since, although I may be proved wrong by decision of the Court of Appeal, I am also of the view that any application he may wish to make to the Court of Appeal is devoid of merit and virtually bound to fail, there is no justification upon the merits for granting a stay of execution.

THE CLAIMANT: But there is a justification because I have pursued a particular complaint for acting outside its jurisdiction. This court has no authority to disregard the questions of the superior courts. This court has no jurisdiction --

MR JUSTICE MUNBY: Mr Mahajan, I have given my judgment. I have made my rulings on each of the applications you have made to me. If you wish to pursue the allegation that I have acted without jurisdiction, or that I have erred in law, your remedy is to make an application to the Court of Appeal.

THE CLAIMANT: Obviously I have a right of complaint as well. Thank you.