The Queen on the Application of Henry Bradley - Case Study Example

Running Head: CASE Case of Case on The Queen (on the application of Henry Bradley & Others v. Secretary of State for Work and Pensions Introduction The Queen (on the application of ) Henry Bradley & others v. Secretary of State for Work and Pensions1 ("Bradley"), a decision of The Hon. Mr. Justice Bean, of the High Court of Justice, Queens Bench Division, Administrative Court is a judgement regarding the judicial review of rejection by the Parliament of the recommendations and findings made by the Ombudsman with regard to the injustice caused to many persons due to the winding up of the Occupational Pension Schemes. This judgement after dealing with many precedents and the law applicable to the case in detail has partially allowed the judicial review by upholding some and quashing some of the rejections of the Parliament and by asking the Parliament to reconsider the First Recommendation of the Ombudsman. Though this judgement does not lay the law but has only followed precedents in general, it still stresses on the point that the findings of the Ombudsman are binding and also given the fact that the number of people affected by this judgement are many, it attempts to ensure that people are not left without any remedy by seeking reconsideration of the Recommendation by the Parliament. In the course of this case note we shall understand the facts of the case, the law that governed the Occupational Pension Scheme in the light of the precedents and also the discuss the judgement as to its correctness. Factual Background The broad facts of the case are that the four claimants had individually believing in the information distributed by way of official government publication and also believing in their employer's word invested in the Occupational Pension Scheme only to land in financial crisis after retirement because of winding up. The companies of three out of the four claimants wound up and as a result they could not get more than a fraction of their pension amount, while in the case of the fourth, the pension scheme wound up thereby throwing him into financial crisis. The situation of the fourth claimant is worse as he is not even eligible for the Financial Assistance Scheme promoted by the government as his company is still solvent. Given such a situation, Members of Parliament had made various complaints to the Ombudsman regarding pension losses alleging firstly that the rights of pensioners were not protected, secondly that policy decisions were taken without referring to relevant evidence, thirdly relevant information being distributed was largely misleading material and lastly public bodies were causing unreasonable delay in winding up schemes. Based on these four allegations, the Ombudsman conducted an in depth investigation and relying on a government pamphlet disseminating pension information, submitted a detailed report before the Parliament consisting of findings and recommendations, wherein she held the State guilty of maladministration. In consequence the Public Administration Select Committee (PASC) considered her report along with the oral evidence presented by her and rejected her report completely except for one point. This rejection of the Parliament is the subject matter of the judicial review of the present case. Legal Background Prior to discussing the rationale behind the judgement, it is important to understand the legal background. It has been seen that traditionally pension schemes were governed by the law of trusts but later in 1995 the Pensions Act2 was enacted which dealt with occupational pensions. This Act brought about the establishment of the Occupational Pensions Regulatory Authority and also laid down the rules, regulations, rights and obligations of trustees and also introduced the concept of Minimum Funding Requirement or "MFR"3. The Act also stated that the assets and liabilities of a particular scheme should be equal at all times so that the assets balance the liabilities in case of any problems4 and also provided for the order that has to be followed in case of winding up for determining priorities5. In pursuance to the provisions of the Act, the government distributed pamphlets to understand the various provisions. The Act was later revised in 2004 which came into force on 6 April 2005. Another law that has been discussed during the course of the judgement is the Parliamentary Commissioner Act, 1967 which deals with the powers and responsibilities of the Commissioner appointed to investigate into complaints. This has been discussed for the sole purpose of determining the powers of the Ombudsman and her responsibilities. It also discusses the binding nature of reports and recommendations submitted by the Ombudsman in course of such investigations6. The judgement also fleetingly discusses Article 9 of Bill of Rights 1689 from the point of view of whether discussions in the Parliament can be subject to judicial review in any Court. In order to confirm that this cannot be done, reliance is placed on the judgement in the case of Prebble v. Television New Zealand Ltd.7 , wherein Lord Browne-Wilkinson held that no court can challenge "what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges". In the present judgement, the Court after looking through a variety of precedents held, that while this may be true of most cases, in the present case no such privilege is being challenged but in the contrary the judgement is being delivered based on the law and its precedents. Rationale of the Judgement In this case, the first finding on the part of the Ombudsman is maladministration on the part of the State as a result of which injustice has been caused to many persons. This finding has been rejected by the State and the State contests this judicial review by stating that the findings and recommendations of the Ombudsman are not binding on the State. The provisions of the Local Government Act, 1974 and the Parliament Commissioner Act, 1967 clearly provide for cases where members of the public have alleged maladministration and the Commissioner or the Ombudsman has found it to be correct and has submitted a report stating so then the findings of the Ombudsman are binding. In the case of R v Local Commissioner for Administration ex parte Eastleigh Borough Council8, Lord Donaldson held that the findings of the Ombudsman were binding on the Local Authority to which such report has been submitted. He went on to state that in case there is no possibility of a successful judicial review then in such cases the report should not be disputed and the statutory duty should be performed. There is much controversy in the interpretation of this judgement as to whether it includes recommendations or only relates to findings. In the present case, however, Justice Bean has taken this judgement only in relation to the findings submitted by the Ombudsman and not the recommendations. He goes on to state that if the recommendations were to be mandatory and binding, then the law would have worded it that way and not put it as recommendations. The mere fact that they are called recommendations and also the fact that the Ombudsman does not have judicial authority shows that these are only recommendations and not directions. He referred to three judgements, R v Warwickshire County Council ex parte Powergen plc9, R v Secretary of State for the Home Department ex parte Danaei10 and R v Parliamentary Commissioner for Administration ex parte Balchin11 and stated that while it is true that an Ombudsman does not have the trappings of a Tribunal or a Judiciary body, the investigations conducted are very detailed and hence the findings submitted are binding. Given the above discussion the Court held that the State was guilty of maladministration and had done great wrong by rejecting the first finding of the Ombudsman. The Court then went on to decide that the maladministration was not the direct and only cause of the injustice caused to people and hence the State was right to reject the second finding of the Ombudsman. With regard to the change in MFR by the Government without any basis, the Court did not accept the argument of the Ombudsman that the authority appointed for the review of MFR was not competent. It went on to state that any decision made in consultation with the Government Department was a valid one and could not be challenged for want of authority. The Court then went on to state that the rejection of the State of the first recommendation of the Ombudsman was wrong and that given the new light and evidence presented the State should reconsider its decision. This was stated in light of the Financial Assistance scheme promoted by the State and the fact that over 75000 persons were affected by the winding up of the scheme. Conclusion In conclusion, this case has been decisive only as to the law regarding the binding nature of the findings of the Ombudsman. In all other respects, it just chooses to follow the precedents. While this may be legally correct, there is a need for judicial intervention in such areas where the public are held at ransom for the want of proper and adequate information from the Government. The public blindly trusting the Government on all the information provided chooses to invest both money and time only to be duped. There needs to be stricter laws and judicial interpretations in order to avoid such situations in the future. References The Queen (on the application of ) Henry Bradley & Others v. Secretary of State for Work and Pensions Neutral Citation Number: [2007] EWHC 242 (Admin) Read More