Handling Maladministration
Allegations
Ros Foster – Browne Jacobson
Megan Larrinaga – Browne Jacobson
Patrick O’Connell – PHSO
Virginia Cooper – Bevan Brittan
Amy Tschobotko – Bevan Brittan
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Maladministration (fault!)
and the LGO
Maladministration
Presented by Ros Foster
Browne Jacobson LLP
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Complaints of injustice in consequence
of maladministration
• The LGO may investigate complaints of injustice in consequence
of maladministration, failure in a service or failure to provide a
service
– What is maladministration?
– What is injustice?
• Richard Crossman, who steered the Parliamentary
Ombudsman’s legislation through parliament said
– ‘We have left both words – maladministration and injustice –
undefined in the Bill. We believe that the meaning of the
words will be filled out by the practical processes of case
work…’
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What is maladministration?
•
•
Consequently, not defined in the Local Government Act 1974 (‘the 1974
Act’)
The Crossman catalogue: maladministration includes
– bias
–
–
–
–
–
–
–
–
neglect
inattention
delay
incompetence
inaptitude
perversity
turpitude
arbitrariness
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LGO’s approach to
maladministration
• The LGO refer to maladministration and service
failure as fault
• The LGO provide two key pieces of guidance
– Good Administrative Practice
(42 points of good practice)
– Guidance on Running a Complaints System
(6 features of an effective complaint procedure
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LGO approach to
maladministration
• As Sedley J, said in R v PCA, ex p Balchin
(No 1) [1997] JPL 917
“…the question whether any given set of facts
amounts to maladministration – or by parity of
reasoning, to injustice – is for the Commissioner
alone”
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The LGO’s approach to service
failure
• The LGO’s approach to service failure
– It is for the LGO to decide whether there was a
failure in the service
– It is for the LGO to decide whether there was a
failure to provide a service it was the authority’s
function to provide
• Maladministration V service failure
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What is injustice?
•
•
•
Section 31(2B)(a) of the 1974 Act provides that the Ombudsman can make
recommendations to remedy injustice in consequence of the maladministration
that has been identified. The Ombudsman will attempt to put a complainant into
the position they would have been in had the maladministration taken place, but
that is not always possible, as here. In those cases the Ombudsman will
recommend the payment of compensation, taking a broad view of all the
circumstances of the case.
Injustice is also not defined in the 1974 Act
Crossman– ‘We have not tried to define injustice by using such terms as "loss or
damage". These may have legal overtones which could be held to exclude
one thing which I am particularly anxious shall remain – the sense of outrage
aroused by unfair or incompetent administration, even where the complainant
has suffered no actual loss’
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The LGO’s approach to
injustice
• Using the LGO’s broad discretion it can refuse to investigate on
basis that no insignificant injustice has been caused – R (oao
Abernethy) v LGO [2002] EWCA Civ 552
• Can include the sense of outrage aroused by unfair or
incompetent administration, even where the complainant has
suffered no actual loss: R v PCA ex p Balchin (No 1) [1997] JPL
917
• But the LGO cannot investigate a complaint of injustice sustained
other than by the complainant: R v LGO ex parte Eastleigh BC
[1988] Q.B. 855 (but people can be represented by another, at
the LGO’s discretion)
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The LGO’s jurisdiction
• The 1974 Act contains two jurisdictions
o Maladministration, failure in a service or failure
to provide a service (fault)
o Private adult social care
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LGO’s maladministration
jurisdiction
• S.26 of the 1974 Act identifies the actions of the
organisations in jurisdiction which the LGO may
investigate
– Maladministration in connection with an
organisation in jurisdiction’s administrative
functions
– A failure in a service which it was the
organisation’s function to provide
– A failure to provide such a service
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LGO’s maladministration
jurisdiction
• The LGO cannot investigate an action which was
not taken by a local authority outside of its
functions
• For example, the LGO will not investigate action a
local authority has taken on behalf of an NHS
organisation
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LGO’s maladministration
jurisdiction
• There are a number of actions which are taken as
part of a local authority’s functions which the LGO
cannot investigate
• These are set out in s.26 of and Sch 5 to the 1974
Act and include
– HR matters
– Conduct of proceedings before a court
– Some commercial matters
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LGO’s maladministration
jurisdiction
• There are also some actions which are part of a
local authority’s functions that the LGO may only
investigate if the LGO thinks it is reasonable to do
– When there is an alternative legal remedy
– When the complaint is made outside the time
limit (12 months from knowledge of the events)
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Alternative legal remedy
• Must determine whether complainant might be entitled to some
form of remedy if he commenced proceedings in time and his
complaint was justified
• Need merely be satisfied that the courts were the appropriate
forum for investigating the subject matter of the complaint and
not whether in fact the legal proceedings would succeed
• Continuing duty to consider whether should continue with
investigation if it became apparent that issues were appropriate
to be resolved in the courts
• Commencement of judicial review in respect of the matter in
question deprives the Ombudsman of her jurisdiction to
investigate
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The LGO’s private adult social
care jurisdiction
• Under Part 3A of the 1974 Act the LGO may
investigate complaints about actions taken by
adult social care providers but only in connection
with the adult social care services provided
• There are some actions adult social care
providers take in connection with adult social care
services they provide that the LGO cannot
investigate
– HR
– Time limit
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Procedure and conduct of
investigation
• Under s.28 of the 1974 Act
– the procedure for conducting an investigation
shall be such as the LGO considers
appropriate in the circumstances of the case
– where the LGO proposes to investigate a
complaint, it must give the authority the
opportunity to comment
– investigation must be in private
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Procedure and conduct of
investigation
•
•
Aside from those main restrictions, the LGO has a wide discretion in how to
approach investigations
Recognised by the court in R v Parliamentary Commissioner for Admin, ex
parte Dyer [1994] 1 WLR 621
– ‘…the commissioner was entitled in the exercise of his discretion to limit
the scope of his investigation… no investigation should be expected to
solve all problems for all time and it cannot in my judgment be said that
the approach adopted here by the Commissioner was not one properly
open to him.’
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Disclosure
• Complainant is entitled to information taken into
account when deciding whether to investigate and
as to the outcome of any investigation, as a
matter of fairness: R (on the application of Turpin)
v Commissioner for Local Administration [2001]
EWHC Admin 503
• Can withhold information marked confidential by
the sender but must inform complainant of the gist
of the information received
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FOI/EIR
• Investigations conducted in private and there is a
statutory prohibition on disclosure of the information
obtained: s32 LGA 1974
• S44 FOIA provides an absolute exemption in respect
of information prohibited from disclosure by statute
• EIR contain no equivalent prohibition – Upper Tribunal
recently decided that LGO was not required to
disclose legal advice obtained by a Council and relied
upon in the matter to which the complaint related
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Powers to obtain information
• S.29 of the 1974 Act provides the LGO with the
same powers as the High Court in respect of:o attendance and examination of witnesses; and
o Productions of documents
This power is wide ranging and there is no
obligation to maintain secrecy or any other
restriction even if imposed by law
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Practical Examples – obtaining
information
•
•
In practice the LGO will
– Ask for, and review, authority’s relevant records (it is for the LGO to
decide which records are relevant)
– Send written inquiries about certain records or events
– Interview relevant individuals
Important to have a point of contact
– The LGO know who to contact
– Contact passes inquiries to colleagues in the authority
– Keeps a record of cases going to the LGO
– Contact will get experience of the LGO’s procedure (and can explain
procedure to colleagues)
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Unreasonable complainant
behaviour
• LGO defines unreasonably persistent behaviour
as:
“complainants who, because of the nature or
frequency of their contacts with an organisation,
hinder the organisation’s consideration of their, or
other people’s, complaints”
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Examples of unreasonable
complainant behaviour
• Refusing to specify the grounds of a complaint,
despite offers of help;
• Refusing to co-operate or wanting to take charge of
the complaints process/investigation;
• Changing the basis of a complaint as the investigation
proceeds;
• Adopting a scatter gun approach e.g. pursuing parallel
complaints on the same issue;
• Making excessive demands on the time and
resources of the council e.g. lengthy phone calls or
emails
• Refusing to accept a decision
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Dealing with unreasonable
complainant behaviour
• Placing limits on the number and duration of contacts
with staff per week or month
• Offering a restricted time slot for necessary calls
• Limiting the complainant to one medium of contact
(telephone, letter, email etc)
• Requiring the complainant to communicate only with
one named member of staff
• Requiring any personal contacts to take place in the
presence of a witness and in a suitable location
• Refusing to register and process further complaints
about the same matter
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Investigation outcomes and
after the investigation
Virginia Cooper and Amy Tschobotko
Bevan Brittan
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Investigation outcomes
The LGO may:
• Not uphold complaint or decide not to investigate further;
• Uphold complaint; or
• Recommend local resolution .
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Reports and reasoning
• Section 30(1) of the 1974 Act: Reports on
completion of investigation
• This report may include recommendations
(section 30(2)).
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Reports and reasoning
• Where the LGO reports that there has been
maladministration, failure in a service or failure to
provide a service, the report shall be laid before the
authority (section 31(2));
• LGO may further report if authority does not comply or
can make public statements (sections 31(2A) and (2D))
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Reports and reasoning
• In some circumstances, the LGO may prepare a
statement of reasons for the decision instead
(section 30(1B))
• Where the LGO decides not to investigate or to
discontinue an investigation, a statement of
reasons should be prepared (section 30(1C))
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Investigation outcomes –
Ombudsman guidance
• The LGO publishes guidance on remedies which
makes clear that the Ombudsman will:
– Seek to remedy personal injustice for all
complaints where fault is found;
– Provide similar remedies for similar cases;
– Consider what the complainant is seeking and
the authority’s views;
– Consider whether action can be taken to put
the person affected back in the position they
would have been in but for the identified fault.
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Complaint upheld– possible
recommendations
• Where complaint upheld, LGO may recommend:
1.
Apology;
2.
Review of policy and procedure;
3.
Remedial actions; and/or
4.
Payment of a sum of money.
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Investigation outcomes –
example 1
• Investigation into noise from racetrack and complaint
that authority had not properly enforced restrictions on
planning permission.
• LGO may take a “creative” approach with mix of
recommendations.
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Investigation outcomes –
example 2
• R (on the application of NR) v. LGO
• In the lower Court Claimant argued that the Ombudsman’s
approach to financial compensation was wrong.
• LGO relied on R (on the application of Equitable Members Action
Group) v. H M Treasury and others [2009] EWHC 2495 Admin:• “…it is not irrational to decline to follow [common law principles of
civil liability] slavishly, so leaving room to take into account the
many demands on the public purse – all the more so, when it is
borne in mind that the Ombudsman’s role is not to replicate that
of a Court or to provide what might be described as legal
alternative dispute resolution.”
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What if the authority does not
agree with the LGO?
• LGO cannot compel authorities to follow
recommendations, but authorities almost always
comply.
• R (on the application of Gallagher and McCarthey v.
Basildon District Council) [2010] EWHC 2824
• High Court held that authorities do not need to have
“cogent reasons” to reject recommendation, but
authorities’ decisions in this regard may be subject
to JR on established public law grounds.
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What if the authority does not
agree with the LGO?
• Local authorities are entitled to consider the
impact on the allocation of resources (Gallagher,
approving Mencap).
• (R (on the application of Nestwood Homes
Developments Limited v. South Holland District
Council [2014] EWHC 863 (Admin))
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What if the Claimant does not
agree with the LGO?
• LGO decision may be subject to JR by the
Claimant
• Court takes only a supervisory role and will only
rarely interfere with Ombudsman’s discretion.
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Learning from complaints and
investigations
• LGO has started to publish a “Review of Local
Government Complaints” – this includes statistics for
each authority.
• The LGO recommends questions for elected
members and scrutiny committees in order to see
whether the council is responding to and learning from
complaints.
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Learning from complaints and
investigations
• Centre for Public Scrutiny produced a guide with
the LGO: “Aiming for the best: Using lessons from
complaints to improve public services”
• When developing a policy or service model, it is
almost impossible to anticipate all potential
variables of implementation and impact.
• Use LGO investigations (including local
settlements) to improve policy or service.
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Learning from complaints and
investigations
• Consider whether the LGO Annual Review shows
any trends in the complaints received against the
authority.
• Do LGO reports about other areas prompt the
question ‘could it happen here?’
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Questions?
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