Investigations by the Ombudsman
7Matters which may be investigated: restrictions
1
The Ombudsman is not entitled to question the merits of a decision taken without maladministration by or on behalf of a listed authority in the exercise of a discretion vested in that authority.
2
Subsection (1) does not apply to the merits of a decision taken by or on behalf of a health service body, a family health service provider or an independent provider to the extent that the decision was taken in consequence of the exercise of clinical judgement.
3
The Ombudsman must not investigate action taken by or on behalf of a member of the Scottish Executive unless the action was taken in the exercise of functions conferred on the Scottish Ministers or of functions conferred on the First Minister alone.
4
For the purposes of subsection (3), functions conferred on the Scottish Ministers include functions exercised by them on behalf of a Minister of the Crown or government department by virtue of section 93 (agency arrangements) of the Scotland Act 1998 (c. 46).
5
The Ombudsman must not investigate action taken—
a
by or on behalf of a listed authority which is a cross-border public authority, or
b
by a member of the administrative staff of any tribunal specified in schedule 3 which is a cross-border public authority,
unless the action taken concerned Scotland and did not relate to reserved matters.
6
The Ombudsman must not investigate action taken by or on behalf of an independent provider unless the action—
a
was taken in relation to, or
b
consisted of a failure in, or to provide,
a service which the independent provider was providing, or which it was the independent provider’s function to provide, under arrangements with a health service body or a family health service provider.
7
The Ombudsman must not investigate action taken by or on behalf of a person who is a listed authority by virtue of an Order in Council referred to in subsection (4) of section 3 unless the action was taken in the exercise of the functions of a public nature which are specified in the Order in Council in pursuance of paragraph (b) of that subsection.
8
The Ombudsman must not investigate any matter in respect of which the person aggrieved has or had—
a
a right of appeal to a Minister of the Crown or the Scottish Ministers,
b
a right of appeal, reference or review to or before any tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative, or
c
a remedy by way of proceedings in any court of law,
unless the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person aggrieved to resort or have resorted to the right or remedy.
9
Subsection (10) applies where a matter in respect of which a complaint is made under this Act—
a
is a matter in respect of which a complaint can be made, or a review can be requested, by the person aggrieved under a procedure operated by any listed authority (whether or not the listed authority in relation to whom the complaint under this Act is made), and
b
is not a matter of the kind mentioned in subsection (8) or paragraph 12 of schedule 4.
10
In such a case, the Ombudsman must not investigate the matter unless the Ombudsman is satisfied that—
a
the other procedure has been invoked and exhausted, or
b
in the particular circumstances it is not reasonable to expect the procedure to be invoked or, as the case may be, exhausted.