AC-2023-LON-002285 - [2024] EWHC 1094 (Admin)

FACTUAL BACKGROUND

The Claimant has provided a detailed chronology of what he considers to be relevant events in a pre-action letter dated 19 September 2023, along with a witness statement. The Claimant’s analysis of the factual background is set out in more detail in the Claimant’s Statement of Facts and Grounds for this claim.

I agree with the Defendant’s observation that much of that narrative is more directly concerned with detail about the Claimant’s grievance against the Interested Party. Significant parts are controversial so far as the Interested Party is concerned. I do not consider it either necessary, nor indeed appropriate for me to go into, let alone attempt to resolve, points of factual contention that may exist relating to that underlying grievance.

In that spirit, I only provide a summary of the relevant background, taking account of the Claimant’s account of events, but without purporting to decide contentious issues between the Claimant and the Interested Party which are not necessary for dealing with this judicial review claim.

The Claimant was a soldier in the army, with the rank of Private, from 17 July 2017 until 3 October 2022.

The Claimant was diagnosed with HIV in December 2019. He submits he is a disabled person in consequence of that diagnosis.

The Claimant relies upon an announcement made by the Interested Party in December 2021 (before the Claimant was medically discharged) that:

“serving personnel who have been diagnosed with HIV will continue to be supported to access suppressive treatment and will be recognised as fully fit for operations when there is no detectable virus in their blood tests”.

On 14 April 2022 Dr Widdrington, an NHS Consultant in Infectious Diseases treating the Claimant, expressed a view as to the state of Claimant’s medical condition at that point in time as follows:

“Regarding the HIV infection, the HIV viral load is persistently undetectable, this means that you are not at risk of spreading HIV to others. The CD4 count remains below 200 but this is slowly improving over time and your immune system appears healthy.”

JSP950 Medical Policy Leaflet 6-7-7 Joint Service Manual of Medical Fitness (v2.4), page 5-N-2 (on which the Interested Party relies) explains the potential significance of a CD4 count for persons diagnosed with HIV:

“d.

Personnel known to be infected with HIV who are on Antiretroviral Therapy (ART) may be graded to MLD subject to approval by the Military Advisor in Sexual Health and HIV Medicine (MASHH), if they:

(1)

Have been on a stable treatment regimen

and for at least six months have consistently maintained:

(a)

A CD4 count of at least 200 cells/mm³

(b)

A viral load below 50 copies per ml.

e.

Personnel infected with HIV who do not adhere to medication or follow-up requirements, have abnormal CD4 counts, viral loads over 50 copies per ml (repeated tests 4 weeks apart) or any signs of HIV related illnesses or current infections must be graded no higher than MND.”

The terms ‘MLD’ and ‘MND’ therefore refer to concepts of being medically limited for deployment or medically non-deployable respectively.

The Claimant was the subject of a fitness for work assessment by a Unit Medical Officer in September 2021, confirmed on 4 May 2022. Under that assessment he was permanently graded as “MND Perm”, so treating the Claimant as being permanently medically non-deployable. This assessment was considered in light of his regiment being placed on high readiness and required for deployment abroad. The conclusion following on from that assessment was that the Claimant could no longer be employed and the Claimant’s discharge was authorised on 18 May 2022. The Claimant was notified of his discharge by letter of 24 May 2022.

The Claimant internally appealed against that fitness for work assessment on 7 June 2022. In her oral submissions at the hearing, Ms Braganza drew attention to the fact that the Claimant’s email submitting the internal appeal stated (in paragraph 4):

“I feel the decision to upgrade my deployment status is a direct medical discrimination. Physically, psychologically, emotionally or whatsoever, I am not limited to any activity that a solider is required. (ref appendix 9). As a soldier, I have passed any fitness test as required by every solider.”

The Claimant also sought to rely upon a further announcement made by the Interested Party on 21 June 2022, before his discharge took effect to the following effect:

“From today, serving personnel who are taking suppressive treatment for HIV and whose blood tests show no detectable virus, will now be recognised as fully fit for all service. The policy change also applies to anyone wishing to join the military, meaning living with HIV is no longer a barrier for those wishing to serve.”

By a letter dated 6 July 2022, Dr Konfortov considered the Claimant’s status as “MND Perm”. In that letter Dr Konfortov expressed the view that the Claimant met all criteria for being graded as “MLD” bar one measurable factor, namely his CD4 count. The historical values for his CD4 count from 20 December 2019 to 21 June 2022 are set out. These generally show an increasing CD4 count, although the latest identified were still below 200: as at 21 June 2022 the CD4 count was identified as being 190. Dr Konfortov concluded the letter by stating that the Claimant “shows a general steady increase. It is likely that he reaches a level of 200 in the next few months.”

The Claimant also refers to a letter dated 9 September 2022, again before the Claimant’s discharge took effect, from the Claimant’s treating Consultant, Lt Col Kate Clay in which she stated:

“I just wanted to let you know that I have discussed your case at our MDT and I am happy to write a letter supporting your upgrade to MLD. I am just awaiting your latest blood results from your clinic. I will be in touch with a letter in due course.”

The Claimant claims that on 29 September 2022 he was informed by the Regimental Careers Management Officer (“RCMO”) that his discharge process had been discontinued and that he was to be offered a different role by the RLC Corps Sergeant Major. The Claimant also relies on a further report dated 30 September 2022 from Lt Col Kate Clay in which she stated of the Claimant:

“…He is virologically suppressed and therefore poses no risk to his colleagues… been discussed at our HIV military MDT with Colonel Ngozi Dufty and Lt Colonel Daniel Burns. We would strongly support his desire to stay in the army. He is able to perform on his UK based job without restrictions and would be safe to work overseas if close to a supply chain. This is a more unusual case... I am very happy to discuss this further as required.”

In the event, however, the Claimant’s medical discharge took effect on 3 October 2022.

The Claimant states that since discharge, he: (1) has not been able to secure alternative employment; (2) is on Universal Credit; and (3) is a widower and single parent. He stated that he had intended to serve in the army until retirement.

Following the discharge, the Claimant submitted a service complaint to the army on 14^th February 2023 using a Service Complaint Form. In his statement of complaint he began by describing the alleged wrong as “DISCRIMINATION (MEDICAL)”.

The guidance notes to the Form he completed stated that generally the time limit for submitting a complaint is 3 months but that in cases of discrimination:

“This time limit is 6 months if your complaint is about discrimination.”

Section 6 of the Form has a heading “Reasons for delay in submitting your complaint (if applicable)”. There is then guidance to the following effect before a blank box is provided:

“Complaints submitted under the Armed Forces (Service Complaints) Regulations 2015 must normally be submitted within 3 months of the date that the matter complained of occurred or of the latest in a connected series of incidents. This time limit is 6 months if your complaint is about discrimination and 9 months if it is about equal pay. Please provide an explanation if you think that this complaint is made outside the relevant time limit and why it should be considered - see JSP 831 , Part 2, Annex R for further guidance on what might constitute just and equitable reasons”

In the blank box the Claimant entered the following:

“I was still waiting for the appeal outcome which never came through till now. Also, I did not know of this process as I only depended on the appeal I made against the medical discharge.”

On 17 February 2023 the Claimant also issued ET proceedings against the Interested Party in the Newcastle ET alleging disability discrimination. He is legally represented for those proceedings. As noted above, the Interested Party is contesting those proceedings and has sought to have the proceedings struck out on the grounds identified above. The hearing of its strike out application was listed for 29-30 January 2024, but the hearing did not go ahead. There is a further hearing scheduled for late May 2024.

In the meantime, on 28 February 2023 the service complaint officer tasked with making a decision on admissibility sought further information from the Claimant. Amongst other things, the officer sought confirmation that the following accurately summarised his statement of complaint in terms of Heads of Complaint (“HoC”):

“a.

HoC1. You alleged that your CO made a recommendation that you are discharged without considering properly, the opinion of your medical specialist.

b.

HoC2. You allege that the MO unfairly did not medically upgrade you despite your medical specialist’s recommendation.

Can you also please answer the following:

1.

Are you also ultimately complaining that you have been unfairly medically discharged?

…

5.

What redress do you seek, ie what do you ultimately want if your SC were to be upheld (please note this is not an indication that it is or will be but the redress listed on your Annex F is not a redress?”

The Claimant responded to these questions on the same date, answering respectively:

“a.

… Yes the decision was made without considering the MOD medical specialists team recommendation.

b.

… Correct

…

1.

…Totally.

…

On 19 April 2023 the Claimant spoke to an officer in respect of the service complaint, following which an email setting out a timeline of events was provided to the Claimant.

The Claimant has identified that it was on 24 April 2023 that the Interested Party submitted its application to the ET to strike out the Claimant’s claim.

By email dated 5 May 2023 the Claimant was provided with a notification that this service complaint had been ruled inadmissible on the basis it was out of time. The attached letter of notification set out reasons for that decision. Having set out a summary of the HoCs, the reasoning continued as follows:

“… The Relevant Day for the purposes of all three HoCs is 3 Oct 2022, the date of your discharge and the date therefore that the above alleged wrongs crystallised. As you submitted your Annex F to the Specified Officer on 14 Feb 2023, these HoCs are outside the three-month statutory time limit of the Relevant Day and therefore inadmissible as being ‘out of time’.

7.

As HoC1-3 are inadmissible out of time, I considered the explanation for the delay that you supplied in your Annex F and in subsequent communication with the Army SC Sec. However, I do not consider your reasons to be compelling enough to account for the delay between the occurrence of the issue raised (your discharge in Oct 22) and the submission of your SC (14 Feb 2022). This is a significant period to have elapsed in the context of the alleged wrong (loss of your Army career) and it is reasonable to expect that you should have taken action sooner to address this. I note that you submitted your Annex F having stated that “the appeal never came through till now” but have not provided any evidence relating to this. Again, given the severity of the issue, I struggle to understand why you allowed such a significant period of time to pass before taking any action.

8.

Time limits for raising SCs are set to ensure a level of fairness for complainants, respondents, and witnesses, to obtain evidence and witness accounts before details are lost due to time. The Principles of Fairness for the Handling of Service Complaints found at Annex H of JSP 831 says to “follow the Service Complaints policy” and “ensure that investigations are prompt, thorough and establish the facts”. Allowing matters to be included where substantial time has passed does not provide the protections afforded by the time limits or comply with the Principles of Fairness.

9.

In summary, I am not persuaded that the explanation you have given for your late submission can be considered just and equitable for me to consider your application outside of the time limit. I therefore reiterate that these HoCs are inadmissible.”

In her oral submissions Ms Braganza pointed out that the letter does not reference the Claimant’s identification of discrimination, nor deal with that characterisation of the service complaint by the Claimant. As to the references to potential prejudice arising from any delay, Ms Braganza submitted that this comes in a context where there were delays occurring in the ET proceedings and, in any event the Claimant’s claim in respect of discrimination does not rely on witness memory, but is based on medical evidence, the decision that was taken and what the Claimant submits was the relevant policy applicable at the time. She submits that any concern about memories fading is necessarily of much lesser significance than for other types of service compliant, such as a bullying allegation.

Paragraph 13 of the specified officer’s letter identified that if the Claimant did not agree with the decision, he had the right to contact the SCOAF to seek an independent review and that he must do this within 4 weeks from the date he received the letter. It referred him to guidance on what an application must include and how to make one on the SCOAF’s website and further information contained in JSP 831.

The four week time limit for making such an application expired on or around 6 June 2023. The Claimant submitted his application to the Defendant to review the Interested Party’s admissibility decision on 16 June 2023. The Claimant accepts that this application was made 10 days after the relevant deadline.

The template for such an application includes a section on lateness as follows, with the Claimant’s answers to the questions posed:

In his witness statement for these proceedings the Claimant has also stated that two or three days after submitting his application, a woman from SCOAF telephoned him to discuss his application. In his witness statement the Claimant states:

“… The woman said that she was calling from the Ombudsman and the purpose of the call was to get more information about the request for review. The call lasted around 30 or 40 minutes. She asked me why I had made a Service Complaint, and I gave her a chronological account of the medical discharge. I told her about what had happened after I made the Service Complaint, ie that it had been deemed inadmissible on the basis that it was out of time. To the best of my recollection she did not ask me about my knowledge of the Service Complaints process or about the Ombudsman process, nor did she ask me to provide reasons for why my request for review had been submitted late. She also did not ask any questions about my ongoing case in the Employment Tribunal. She asked me to provide documents, and on 22 June 2023, she followed up this request with an email. I provided documents on the same day. My impression after all of this was that the Defendant would be looking into the inadmissibility decision.”

In the Trial Bundle (and therefore in the material previously available to the Claimant before the Defendant’s latest disclosure) there is an email dated 22 June 2023 from an Enquiries and Referrals Officer of the SCOAF to the Claimant. It begins:

“Further to my email dated 16 June 2023, I have noticed that we do not appear to have heard from you? If you have any questions please do not hesitate to contact us.

In our email we requested the following documents required to process your Application for an Admissibility Review:

Your written statement of complaint/Annex F

It explained that these documents could be submitted by email. It went on to refer to the time limits for review applications and next steps as follows:

“Please Note:

You have 4 weeks and 2 days from the date your decision was posted or emailed to you to ask the Ombudsman to review it. You should have been informed of this on the decision letter. If you do not make your application to the Ombudsman within 4 weeks and 2 days, you need to provide reasons for this and your application might not be accepted.

Once the above information has been received, your application will be passed to the Investigations Team and a member of the Investigations Team will aim to contact you within 10 working days.

Please also note that each application is treated on its own merits and not all applications to the Ombudsman will be accepted. If your application is not accepted, you will receive a decision letter outlining why. The decision made by the Ombudsman when determining whether to accept an application is final and binding.”

The witness statement provided by the Defendant dated 26 January 2024 refers to its internal records on the missing documentation and the request that was made of the Claimant for its provision. The Ombudsman identifies that there was also a telephone call by an Enquiries and Referrals Officer to the Claimant on 22 June 2023 to ask for the outstanding documents in response to which the Claimant stated he would provide them straight away. There is reference to that telephone call in the Defendant’s internal records that have been disclosed.

The Claimant duly provided the documents that had been requested, along with a “statement of events” summarising his account of events and dealing with the question of the delay in submitting his service complaint.

In the most recent disclosure from the Defendant a further email dated 23 June 2023 has been provided. This was from the same Enquiries and Referrals Officer. It is written to the Claimant thanking him for an email the previous day and for a copy of his Annex F Form. This therefore confirms that the Claimant had provided the requested documentation on 22 June 2023. The email of 23 June 2023 continued:

“Your application will be passed to the Investigations Team and a member of the Investigations Team will aim to contact you within 10 working days.

Please also note that each application is treated on its own merits and not all applications to the Ombudsman will be accepted. If your application is not accepted, you will receive a decision letter outlining why. The decision made by the Ombudsman when determining whether to accept an application is final and binding.

…”

At the hearing the Claimant sought to place particular reliance on the late disclosure of this email in support of its late application to include the new Ground 3. The Claimant submitted that this disclosed email sets out that the Claimant would be contacted by a member of the Investigations Team, but that this did not happen. The Claimant relies on the timing of the provision of this email to support the timing of his very late application to amend. In resisting the lateness of the amendment application, the Defendant points out that the email dated 23 June 2023 was in very similar terms to the email dated 22 June 2023, which the Claimant already had available to him. The Defendant submits that the Claimant had the ability to advance the sort of ground he is now attempting to advance at the outset of his claim, or certainly much earlier.

In this context, however, the Claimant also refers to the Section 5.3.1 of the Defendant’s Operations Manual on ‘Admissibility Decisions’ recently disclosed by the Defendant. It states (amongst other things):

“The following process outlines how reviews of Admissibility Decisions are handled, from initial application to completion.

After all required information has been obtained, the Enquiries and Referrals Officer will release the case to the Head of Investigations on CMS who will then allocate it to an investigator.

…

In respect of his proposed new Ground 3, the Claimant submits that the Operations Manual was not followed because no investigator contacted the Claimant to obtain reasons for the late submission of the application and the Defendant herself has explained that the only contact was by an Enquiries and Referrals Officer. In resisting the late amendment, the Defendant submits that the Defendant would have filed evidence dealing further with this allegation if the application to amend had been made promptly. It would have explained that the Operations Manual is out of date in the respect identified, as the form that an applicant has to complete requires reasons for any lateness to be submitted. The Defendant also submits that no prejudice can have arisen from any technical breach of the Operations Manual as the Claimant did provide his reasons for the delay in any event, and has not offered any further substantive explanation beyond that he had advanced in the form at the time.

On 26 June 2023 the Ombudsman wrote to the Defendant setting out her decision not to review the admissibility decision. The reasons given in that letter were:

“Having considered all the information available to me, we have decided not to review the admissibility decision because your application to SCOAF has been made outside the statutory four weeks and two-day time frame. Your reasons for the late application have been carefully considered.

Your admissibility decision letter was issued on 5 May 2023, so the deadline to submit an application to SCOAF was 6 June 2023. However, you submitted your application to SCOAF on 16 June 2023, which was ten days out of time. I have taken into consideration that in your application you stated the date of the admissibility letter was 11 May 2023, but irrespective of this, your SCOAF application was still submitted out of time.

When considering the submission of applications to SCOAF outside the statutory time frame, I must consider whether there are just and equitable reasons for the late submission. I note you said your application was submitted late because, ‘My legal representative was seeking way forward from the tribunal because the MOD defence team had written to the court to struck off the case entirely.” However, it is unclear how or why the tribunal case impacted you submitting your application to SCOAF in time, and you have also not provided any supporting evidence for this.

I have considered the information provided in your ‘statement of events’, but I am not persuaded that this contains any information to support the reason for the delay in your application to SCOAF. I note you were aware of the different avenues open to you, so it remains unclear why you felt the need to wait for progress on your tribunal before applying to SCOAF as well. In addition, the admissibility decision letter you received clearly stated that you had four weeks from the date of the letter to apply to SCOAF. As such, I deduce that you would have been aware of the avenues and associated time frames open to you immediately following the original admissibility decision.

You also added: “I strongly feel that I am being unfairly treated and that the MOD wants block me from being heard using time factors.’, and therefore it remains unclear why you did not submit your application to SCOAF within the statutory four weeks and two-day time frame to prevent any risk of a late application being a factor in its consideration by us as well.

In summary, I am not persuaded that the explanation you have given for your late application can be considered just and equitable for me to exercise my discretion to consider your application outside of the time limit. I will therefore be taking no further action on your case.”

The letter referred to the decision being final and subject only to the remedy of judicial review.

The Defendant has disclosed an internal form entitled “Eligibility Assessment” which was completed by an Investigator prior to the issue of the Ombudsman’s decision. It identifies that the application for review was made out of time and in response to the question of “If it is just and equitable, why? And if not, why not?”, the Investigator has stated “No J+E reasons”.

By email dated 12 September 2023 the Claimant’s solicitor acting for him in the ET proceedings wrote to the Defendant requesting that the Defendant reopen the issue and setting out reasons why it invited the Defendant to do so. These included that on the face of the papers the Claimant had been fundamentally wronged in his initial discharge for having HIV though being fit for service, and that he made a discrimination service complaint which was brought within the the specified 6 month time limit for discrimination complaints, as notified on the Annex F form and therefore the wrong time period had been applied to the service complaint and the potential consequences for the ET proceedings.

By email on the same day, a Senior Investigator of the Defendant responded refusing the request. In so doing, the Senior Investigator stated:

“As explained in our letter dated 26 June 2023, we did not review Mr L’s admissibility decision because he submitted his application to SCOAF out of time and we did not consider there were just and equitable reasons to accept it out of time.

Whilst I acknowledge the seriousness of Mr L… s allegations, our decision was not based on the potential merits of his Service Complaint. All Service Persons are subject to the same time limits when applying to SCOAF and I do not consider it would be appropriate to make an exception based on Mr L…’s decision to proceed with an Employment Tribunal.”

One of the submissions made by the Claimant under Ground 2 in respect of the decision of 26 June 2023 and the response on 12 September 2023 is that the SCOAF applied the just and equitable test to the reasons for the delay, rather than the question whether it would be just and equitable to consider the application.

The Claimant has also referred to guidance document published by the Defendant “Just and equitable – what does it actually mean” dated 31 July 2018. In that document it is stated (amongst other things):

“The time limits are important because the more time that passes after an event occurs, the more difficult it is to investigate properly and come to a clear and correct decision about what did and did not happen. Documents or other essential evidence might only be kept for a certain period of time. People’s memories of events fade and are no longer reliable. Witnesses may be difficult to locate, unable to engage in the process for health reasons or have even passed away.

However, there are times when not accepting a complaint outside these time limits would be unfair. That is why there is some flexibility built into the process.

The law allows Service complaints and applications to my office to be accepted out of time if it is considered “just and equitable in all the circumstances.”

What does that mean in plain English? It means that the time limit can be extended in individual cases where it is considered to be right and fair to do so.

That might seem confusing. After all, how could it not be right and fair to investigate a complaint? The answer to that question depends on the circumstances of each individual case.

The “just and equitable” discretion is quite wide. In terms of the work my office does, it allows us to consider any relevant factors. This can include, but is not limited to:

-How far outside the time limit it is

-The reason for the delay

-If it is still possible to conduct a fair and reliable investigation given the delay

-Whether the individual had information about the time limits , or is reasonably expected to have known about them

-Whether the individual has acted unreasonably in making their application.

Although we have this discretion, accepting the applications outside of the time limit is the exception and not the rule.

If you are making an application to our office outside of the time limit, you will be asked to include on the form reasons why it is late. There is no set response that will ensure a late application is accepted. You simply need to provide an honest explanation of why you were unable to make the application in time. If further information or clarification is needed, my investigators will ask you for this. They will also seek information from other sources if required. They will then make a decision, under my delegation, taking into account all of the relevant factors …”

The Claimant refers to the guidance identifying the width of the discretion and the absence of any express articulation on an inability to consider, for example, the merits of the underlying service complaint.

The Claimant has also referred to the SCOAF Review of Admissibility decisions pamphlet, the SCOAF Annual Report and the SCOAF Customer Charter, and a House of Commons Defence Committee report ‘Fairness without Fear: the work of the Service Complaints Ombudsman’, 16^th report of Session 2017-19 dated 9 July 2019. The Claimant’s main reliance on these documents is to support a submission that the SCOAF commits itself to transparency. However, it is not clear to me how any of these documents can materially affect the correct interpretation of the Regulations with which I am faced under Ground 1, nor how a notion of transparency could alter the lawfulness of the Ombudsman’s decision if, as the Defendant and Interested Party contend, the Ombudsman is not entitled to consider the underlying merits of a service complaint when considering the discretion under Regulation17(2) of the 2015 Regulations.

Under Ground 1, the Claimant states that he is challenging the rationality of the SCOAF’s decision, but the details of the claim as articulated are not strictly confined to an assertion that the decisions were irrational in the Wednesbury sense, as the Claimant is also alleging, for example, that the Ombudsman failed to take into account material considerations and the Defendant and Interested Party have responded to such allegations. As already noted, their principal contention is that the merits of the underlying service complaint was necessarily an irrelevant consideration on the correct interpretation of Regulation 7(2) of the 2015 Regulations.

Under this ground, the Claimant first submits that the SCOAF has conceded that in considering whether to grant the extension of time, she did not consider the facts, and so the potential merits, of the Claimant’s case, beyond the pure reasons for delay. The Claimant argues that is irrational and contends that the merits and details of the case, by reason of the starkness of the discrimination and the terms of the new MoD policy, warranted consideration.

Secondly, the Claimant submits that there was no consideration of the fact that the Annex F form specifically identified a time limit of “6 months for discrimination complaints” and that the Claimant had headed that part of his form dealing with the wrong he was identified as “DISCRIMINATION – MEDICAL”. He submits that, in itself, should have raised alarm bells for the SCOAF’s consideration of the circumstances.

Thirdly, the Claimant submits that there was no consideration of the balance of prejudice by the SCOAF. He submits that denial of a review of the admissibility decision brought the entire service complaints’ process to an end for the Claimant, who had also attempted through other internal processes to prevent his medical discharge. The Claimant refers to his reliance on medical evidence supporting the case he was making to the army. He submits that, by contrast, there was no prejudice at all to the service complaint system, or to the SCOAF, in agreeing to consider his request for review by reason of a 10 day delay.

Fourthly, the Claimant submits that the wider prejudice of the SCOAF’s decision potentially putting an end to his ET claim was not considered.

Fifthly, he submits there was a failure to act with transparency. He relies on the fact he was contacted and interviewed by the SCOAF, but no reference was made to that within the decisions. He notes that the SCOAF defends this part of the challenge by reference to the admissibility decision being a filter and gateway to any consideration of the merits, but the Claimant submits that he was asked in the phone call he had about the merits of his case. He says that demonstrates that the SCOAF did go on to seek information as to the wider circumstances, in which case these were plainly relevant to the exercise of discretion in balancing up all relevant factors.

Finally, the Claimant argues that there was a failure to consider all relevant considerations, whether in the refusal to grant the extension as out of time, or in the refusal to consider whether to review that decision. He contends that to deny the Claimant access to a process which he considers he should not be within in the first place, and for the SCOAF to refuse to recognise this and to perpetuate the fundamental procedural wrong despite the Claimant’s submissions, was irrational, unreasonable and unfair. He also claims that it fundamentally undermines the aims of the SCOAF of providing overview, and of ensuring the fairness of the service complaint system. He argues this was an obvious case of plain unfairness and unlawfulness to the Claimant, and in refusing an extension of 10 days, the SCOAF acted contrary to its own commitments. In short, he contends that by reason of a procedural technicality of time, the SCOAF refused to consider a far greater potential injustice to the Claimant.

In response, the Defendant and Interested Party focus on the terms of Regulation 7(2) in support of their submission that the Ombudsman did not err in any of the ways alleged. The Defendant’s principal argument (developed with conspicuous clarity and succinctness by Mr Cohen at the hearing) is a short and straightforward one. The Defendant submits that the words used in Regulation 7(2) do not entitle her to consider the merits of the putative application for review as part of any assessment of whether it would be just and equitable to allow an application out of time. The Defendant submits that the wording of Regulation 7(2) means that the consideration of whether it would be just and equitable to allow the application to proceed “is logically prior to considering the application” and argues that Regulation 7(2) contains a deliberate inversion in contrast to other statutory regimes which are not so limited. On this basis, so the Defendant submits, the Ombudsman did not err in law in not considering the merits of the Claimant’s application for review of the admissibility decision because she was precluded in law from doing so.

In this regard, the Defendant focuses specifically on the structure of the wording and approach in Regulation 7(2) (in contrast to other discretions such as that in section 123 of the EA 2010 on which the Claimant relies). It begins with a prohibition: the Ombudsman “must not consider an application under paragraph (1)” if it is made out of time. It is only after this prohibition is imposed that the qualification appears “unless the Ombudsman considers it is just and equitable to allow the complainant to apply after that period”. The Defendant submits that on this basis, any consideration of what is “just and equitable”, does not involve any consideration of the merits of the application itself and the Ombudsman is not entitled to take those into account.

As I have already noted, the Defendant submitted that this interpretation of the provision was inferentially supported by the adoption of this structure in contrast to that which appears in other legislation, like s.123 of the EA 2010, where no such prohibition is imposed subject to a qualification, but instead provision is made for a tribunal to extend time where it considers it just and equitable in all the circumstances.

The Interested Party adopted these submissions and supported that interpretation as the body responsible for the legislation. The Interested Party also sought to draw attention to the Ombudsman’s limited function of review of admissibility decisions under this part of the statutory scheme, in contrast to the Ombudsman’s other investigation functions and powers expressed elsewhere.

Despite the attractiveness with which these submissions were made, I reject that interpretation of the meaning of Regulation 7(2). In my judgment, it imposes an artificial limitation on the breadth of the Ombudsman’s discretion that is not articulated in the Regulation itself, nor can it properly be inferred from the language or structure of the Regulation.

Applying well-established principles of construction, the basic starting point must be the natural and ordinary meaning of the words used in the Regulation itself. The Regulation begins by articulating a prohibition on the Ombudsman from considering an application that is made out of time. That is clear from the mandatory words that the Ombudsman “must not consider an application” which is made outside the four week period identified. That prohibition, however, is immediately qualified by the word “unless” used in the same sentence. The qualification is “unless the Ombudsman considers it is just and equitable to allow the complainant to apply after that period.”

The use of the words “just and equitable” themselves immediately connote a broad discretion, given the nature of such concepts. But the intended breadth of the discretion is put beyond doubt by the fact that the Regulation makes it clear that the question of what is just and equitable is a matter for the Ombudsman. The qualification is expressed as “unless the Ombudsman considers it is just and equitable”. The Regulation is therefore affording the Ombudsman a discretion to consider whether it is just and equitable to extend time. These words of themselves indicate the provision of a broad discretion, without needing to draw on other statutory regimes where similar concepts (such as in s.123 of the EA 2010, or s.7(5) of the Human Rights Act 1998 on what is equitable) have been found to give rise to a broad discretion. Reference to use of similar words giving rise to broad discretions in other contexts potentially reinforce the conclusion I reach on the wording used in Regulation 7(2), but I reach that conclusion simply on the words used in that provision itself.

In my judgment, the natural and ordinary meaning of the words used strongly indicates as a basic starting point that the Ombudsman is being given a broad discretion to make a decision on whether it is just and equitable to allow the complainant to apply for a review of a specified officer’s admissibility decision out of time. No express constraints, limits or other words of qualification are applied to what factors the Ombudsman may take into account, or the weight to apply to such factors. On the basis of this starting point as to the words used, I would conclude that such limits should not be imposed by way of gloss on that discretion.

The Defendant and Interested Party seek to justify a necessary limitation from the way in which the prohibition is expressed first, followed by the qualification. They suggest that the Ombudsman is not entitled to consider the underlying application at all when making a decision as to whether it is just and equitable to allow the complainant to make the application outside the identified time period. I regard this approach as untenable for at least three reasons.

First, I consider it is artificial to break up the sense of the sentence used in the regulation in this way. To suggest that one cannot consider the underlying application at all because of the preceding prohibition on doing so where it is out of time, in circumstances where the prohibition is being expressed in the very same sentence that contains the qualification to the prohibition is, in my judgment, artificial and unrealistic. It is artificial to suggest that the intention of a single sentence, expressed in the way it is, requires one to shut out any consideration of the application at all when making a decision on whether it is just and equitable to allow the complainant to apply after the time limit. If such a restriction had been intended, it could have been much more clearly expressed, and I would expect it to have been done so if imposing restrictions on the discretion afforded.

Second, even if there were merit in this artificial approach, I do not consider it ultimately assists the Defendant and Interested Party, or supports their conclusion. On the hypothesis advanced, the Ombudsman would still be required to consider whether it is just and equitable to allow the complainant to apply after the time limit has expired (before considering the application itself). But there is nothing in the statutory language used which prevents the Ombudsman from considering the potential merits of the Claimant’s case (without determining any question of admissibility) in making an assessment of whether it is just and equitable to allow the complainant to apply out of time. Thus, for example, the Ombudsman could, potentially decide it is just and equitable to allow a complainant to apply out of time (having regard to the merits of a complaint’s case), but then subsequently to reject the application itself and uphold the inadmissibility decision in due course.

Third, in addition to the absence of any express restriction on what the Ombudsman may consider, I cannot see any other compelling logic for inferring any such restriction. True it is that the Ombudsman’s review function of admissibility decisions is a more limited one than that of carrying out an investigation of the service complaint itself. But there is no obvious reason why the Ombudsman’s general discretion to allow a complaint out of time is intended to be limited or constrained in the way that the Defendant and Interested Party suggest, so as to preclude any consideration of the merits of a complainant’s case. That is particularly so where admissibility decisions in this context can have potential significant consequences for a complainant. There is no reason to think that the Ombudsman cannot be entrusted to exercise a broad “just and equitable” jurisdiction to extend time in a careful manner, with proper regard to the importance of respecting the four week time limit. In that respect, although I reject the notion that what the Defendant describes as the inverted structure of Regulation 7(2) has the effect for which the Defendant contends, it does lend force to the principle that the starting point is the prohibition on considering complaints made outside the four week period, so that the exercise of the discretion will be the exception rather than the rule.

For these reasons, I reject the Defendant’s principal argument under Ground 1. I do so without reliance upon section 123 of the EA 2010, and the cases that apply to that jurisdiction. I recognise the force of the submissions from the Defendant and Interested Party that one needs to be very careful in applying principles expressed in respect of different statutory regimes where the wording is different. But in my judgment, the words of Regulation 7(2) do articulate a broad discretion afforded to the Ombudsman for the reasons I have identified.

Having reached that conclusion on the language used, I consider that the breadth of that discretion afforded to the Ombudsman is in fact subject to other equivalent principles that have been expressed in relation to s.123 of the EA 2010, namely that it is for the Ombudsman (rather than this Court) to exercise such a discretion, where the factors the Ombudsman may take into account, and the weight to be attached to those factors, are for the Ombudsman subject only to general public law principles.

In this particular case, the SCOAF clarified through its Investigations Officer in September 2023, and this claim was defended on the basis that, the Ombudsman did not consider the merits of the Claimant’s application. This was because the Defendant’s position is that the Ombudsman was precluded from doing so by Regulation 7(2). The decision was therefore not taken, nor defended, on the basis that the Ombudsman was entitled not to take into account the merits of the Claimant’s application on the facts of this case, as a matter of discretionary judgment. No arguments were advanced on that basis, nor dealing with the correct legal approach to such a decision if it had been made on that basis. In general, there is now a well-established principle in administrative law that unless a potentially material consideration is a mandatory one required to be taken into account by law or policy, or it is so obviously material that it would be an error of law not to take it into account, it will be a matter of judgment for the decision-maker as to whether or not it is taken into account in a particular case: see eg R(Khatun) v Newham LBC [2004] EWCA Civ 55 [2005] QB 7 (applying the approach expressed in the New Zealand case of Creed NZ) as applied in a number of other areas of administrative law).

Given the explanation as to the approach the Ombudsman’s adopted and the position that the Ombudsman was precluded from considering the merits of the Claimant’s application, I consider that the Claimant’s claim to quash the Ombudsman’s decisions must succeed under Ground 1. The Ombudsman acted on an erroneous understanding of the effect of Regulation 7(2). She treated it as precluding her ability to take into account the merits of the Claimant’s application for review, such that no decision was ever made by her as to whether or not those merits should be taken into account in this particular case. This is therefore not a case where that error can be said to have made no difference, or that it is highly likely that error was not material to outcome of the decision. Equally, however, the discretion under Regulation 7(2) is one for the Ombudsman to exercise, rather than this Court. I agree with the Defendant that if the Ombudsman is found to have erred in the way I have identified, then the decision falls to be remitted for the Ombudsman to take in accordance with the law.

In my judgment, this conclusion renders it unnecessary and inappropriate to deal with the various alternative ways in which the Claimant sought to articulate Ground 1, in the absence of a decision by the Ombudsman applying the correct interpretation of Regulation 7(2). It will be a matter for the Ombudsman to consider the exercise of her discretion under Regulation 7(2), without the erroneous understanding that she is precluded from considering the merits of the Claimant’s case, and the various related points relating to the respective prejudice that the Claimant has sought to articulate, in addition to the reasons for the delay and its consequence. On conventional principles, if the Ombudsman approaches the exercise of that discretion correctly, her exercise of that discretion will only be reviewable on irrationality grounds and the high hurdle that presents, provided she has correctly directed herself and taken into account all required considerations and ignored irrelevant ones. It is not appropriate for this Court to arrogate for itself that statutory function which belongs to the Ombudsman. As to the arguments based on procedural failings that were expressed under Ground 1, but also pursued under the new Ground 3, I will deal with those under Ground 3.

The Claimant’s second ground of challenge is a contention that the SCOAF applied the wrong test under the Regulations. He submits that whether by reference to the actual wording used within each of the decision letters, or by reference to the content of those letters, it is clear that the SCOAF did not consider whether it was just and equitable to extend time in the circumstances of the case. By reference to the words used by the Ombudsman, he submits that the test is not whether the reasons the Claimant gave for the application being late are “just and equitable”, but rather whether exercising the discretion would be just and equitable.

Under this ground the Claimant also seeks to repeat arguments that arose under Ground 1 in this respect as to the Ombudsman’s failure to consider the consequences of refusing the extension of time. In short, the Claimant submits that the SCOAF failed to carry out the proper balancing exercise in deciding whether to grant an extension of time was just and equitable and in the interests of justice.

The Claimant submits that the SCOAF’s failure to take into account all factors as to the merits of the Claimant’s claim amounted to a fettering of her discretion. He argues that the key factors include: the plainly wrong refusal to accept the SC as in time and also, significantly, the fact that the MoD, before discharging the Claimant, lifted its ban on dismissing service personnel taking suppressive treatment for HIV and whose blood tests show no detectable virus as “fully fit for service”.

The Claimant argues that the SCOAF also failed to consider the fact that the service officer’s identification of the Heads of Complaint misleadingly did not refer to discrimination when the Claimant had repeatedly raised that he was bringing a discrimination complaint. He submits that given the potential consequences for an individual when their Service Complaint is deemed inadmissible and when there is a refusal by the SCOAF to consider reviewing the decision, it was essential that the SCOAF consider all the circumstances of this matter. He contends that on any preliminary view of the detail submitted by the Claimant it would have been immediately plain that he was subjected to the most serious disability discrimination and that the original inadmissibility decision was wrong, the failure to treat it as a discrimination complaint was wrong and the decision to rely so heavily on a 10 day delay to refuse outright to consider the matter further was a far too severe and disproportionate sanction in all the circumstances of the case.

The Defendant submits that the Claimant’s argument under this Ground is not well-founded. She submits that the Claimant is reading the decision letter more strictly than is justified or fair, and that it is readily apparent from the internal documents provided that the Defendant was well aware of the test to apply under Regulation 7(2). She argues that the Claimant’s argument is a restatement of the argument that the Defendant ought to have considered the merits of his complaint and his arguments on prejudice, but in circumstances where the Defendant has argued under Ground 1 that she was not entitled to take these into account.

In reality my conclusion under Ground 1 has rendered Ground 2 academic. The Ombudsman will necessarily have to retake the decision applying the correct interpretation of Regulation 7(2) I have identified. This means that the Ombudsman’s reasoning will fall away and the Ombudsman will need to apply the test under Regulation 7(2) to the new decision. In circumstances where the Ombudsman submits that the Claimant’s arguments under Ground 2 apply too strict an interpretation of the words she used, the Ombudsman will no doubt be aware of the need to ensure that the correct test is articulated and applied in her decision-making.

As a matter of principle, I doubt that it is appropriate to construe decisions of the Ombudsman too legalistically, given the function she is performing. There is considerable learning in other contexts as to a general need to avoid reading administrative reasoning of this kind like a tax statute.

That said, I do consider it problematic for the Ombudsman’s internal documentation, and for the reasoning in this case, to be expressed in the way it was. The Claimant is correct that Regulation 7(2) is concerned with whether the Ombudsman considers it just and equitable for an application to be made out of time, not whether the reasons advanced by a complainant are considered to be just and equitable. The reasons for a delay might not be “just and equitable”, in the sense that the Ombudsman concludes that they were not sound reasons for delaying, but the Ombudsman might still come to the view in a particular case that it is still just and equitable for the application to be considered. There is a danger that the Ombudsman will not approach her discretion correctly if the words “just and equitable” are applied to the reasons given for the delay, rather than applied to an assessment overall. This danger was particularly relevant in this case, where the Ombudsman considered herself not entitled to consider the merits of the application itself, and so was artificially inhibiting the potential scope of her assessment as to what she considered to be “just and equitable”.

In the event, Ground 2 is academic. However, for the reasons articulated above, whilst cognisant of the need to read the Ombudsman’s decision as a whole and without undue legalism, I would have allowed the claim under Ground 2 so far as it alleged that the Ombudsman applied the wrong test under Regulation 7(2), and that the Ombudsman consequently considered the question of whether the reasons given by the delay were just and equitable, rather than considering whether it was just and equitable to extend time.

Given my conclusions on Ground 1, I consider that the Claimant’s application to amend her claim to include the new Ground 3 alleging procedural unfairness, as with the allegations of lack of transparency made under Ground 1 in not following the disclosed Operations Manual, have become academic.

However, having heard argument on the issue of transparency under Ground 1, and the application to amend to include the new Ground 3 and the question of procedural unfairness, and the need to determine the application to amend, I will set out my views on them briefly.

As to the application to amend to include a new Ground 3, I refuse the application. It is academic in light of Ground 1. However separately from that, in my judgment it was made far too late in the judicial review claim process (even allowing for the unfortunate conduct on the part of the Defendant in providing late disclosure) and I refuse it independently on that basis as well.

The main reason advanced for making the application so late was the belated disclosure of the email dated 23 June 2023. It was claimed that this confirmed that the Claimant had not been contacted by an Investigation Officer before the Ombudsman made her decision. I reject that as being a good reason for advancing the application to amend so late in the day just before the hearing was due to start.

I agree with the Defendant that the email dated 22 June 2023 which the Claimant already had in his possession articulated the same point on which the Claimant is now seeking to rely, namely that an Investigation Officer would contact the Claimant, but where the Claimant knew that there was no such contact after that email before the Ombudsman’s decision was issued. The Claimant could therefore have advanced the new Ground 3 from the outset. This ground of claim might then have been legitimately reinforced by the Claimant upon the late disclosure of the Operations Manual, but there was no reason why the Claimant could not have put forward Ground 3 from the outset. Failing that, on receipt of the Defendant’s witness statement dated 26 January 2024, the Claimant could have made its application for amendment earlier than he did, with the potential for the Defendant then to have had a greater (albeit limited) opportunity to respond with evidence. The failure to articulate the new Ground 3 earlier has caused prejudice to the Defendant in being able to respond with evidence in time for the claim, and the Court in being able to consider such evidence.

I also separately refuse the application, along with rejecting the Claimant’s criticism under Ground 1 in relation to transparency / failing to following the Operations Manual process, on the basis that the Claimant has not made out any material prejudice in respect of any procedural failings of this type. I agree with the Defendant that the reality was that the Claimant did have the opportunity to set out reasons for the delay, along with his contentions as to the merits of his application, and he took that opportunity in making his submissions to the SCOAF. Accordingly, assuming that there was a failure on the part of the Defendant in not following the Operations Manual by requiring an Investigations Officer to contact the Claimant to establish the reasons for the delay in making the application, I am satisfied that no prejudice arose from any such failure. The Claimant has not articulated what he would have added of substance to what he had already identified in his application form and accompanying documentation. The question as to whether the Ombudsman acted lawfully in limiting her consideration of that material is a different one addressed under Ground 1. But I cannot see anything of significance that would have been established by the Investigations Officer contacting the Claimant in this particular case. To like effect, if there was a failure to comply with what was stated in the emails of 22 June 2023 and 23 June 2023, there was also no prejudice that arose.

There is a point of potential dispute on the face of those emails, along with the underlying guidance, as to whether it is intended that an Investigations Officer will contact a complainant before making a decision as to admissibility, rather than contacting them if the application is treated as admissible. The Ombudsman’s communications and internal guidance, along with the Operations Manual, would undoubtedly benefit from greater clarity in this regard. But I find it unnecessary to resolve the issue in relation to the emails. Even assuming there was such an expectation from those emails, any failure did not result in material prejudice.

For these reasons, I refuse the application to amend the claim to include the new Ground 3. I also reject the challenge under Ground 1 so far as it is based on alleged procedural failures concerning the Operations Manual in the absence of material prejudice arising in this particular case.

For the reasons set out above, this claim for judicial review is allowed under Ground 1 (to the extent identified in the judgment above).