Handling Maladministration Allegations Ros Foster Browne Jacobson Megan

Handling Maladministration Allegations Ros Foster – Browne Jacobson Megan Larrinaga – Browne Jacobson Patrick O’Connell – PHSO Virginia Cooper – Bevan Brittan Amy Tschobotko – Bevan Brittan www. emlawshare. co. uk

Maladministration (fault!) and the LGO

Maladministration Presented by Ros Foster Browne Jacobson LLP www. emlawshare. co. uk

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…’ www. emlawshare. co. uk

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 www. emlawshare. co. uk

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 www. emlawshare. co. uk

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” www. emlawshare. co. uk

The LGO’s approach to service failure • The LGO’s approach to service failure – It is for the LGO to decide whethere was a failure in the service – It is for the LGO to decide whethere was a failure to provide a service it was the authority’s function to provide • Maladministration V service failure www. emlawshare. co. uk

What is injustice? • • • Section 31(2 B)(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’ www. emlawshare. co. uk

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) www. emlawshare. co. uk

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 www. emlawshare. co. uk

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 www. emlawshare. co. uk

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 www. emlawshare. co. uk

LGO’s maladministration jurisdiction • There 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 www. emlawshare. co. uk

LGO’s maladministration jurisdiction • There 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) www. emlawshare. co. uk

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 www. emlawshare. co. uk

The LGO’s private adult social care jurisdiction • Under Part 3 A 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 www. emlawshare. co. uk

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 www. emlawshare. co. uk

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. ’ www. emlawshare. co. uk

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 www. emlawshare. co. uk

FOI/EIR • Investigations conducted in private and there is a statutory prohibition on disclosure of the information obtained: s 32 LGA 1974 • S 44 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 www. emlawshare. co. uk

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 www. emlawshare. co. uk

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) www. emlawshare. co. uk

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” www. emlawshare. co. uk

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 www. emlawshare. co. uk

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 www. emlawshare. co. uk

Investigation outcomes and after the investigation Virginia Cooper and Amy Tschobotko Bevan Brittan www. emlawshare. co. uk

Investigation outcomes The LGO may: • Not uphold complaint or decide not to investigate further; • Uphold complaint; or • Recommend local resolution. www. emlawshare. co. uk

Reports and reasoning • Section 30(1) of the 1974 Act: Reports on completion of investigation • This report may include recommendations (section 30(2)). www. emlawshare. co. uk

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(2 A) and (2 D)) www. emlawshare. co. uk

Reports and reasoning • In some circumstances, the LGO may prepare a statement of reasons for the decision instead (section 30(1 B)) • Where the LGO decides not to investigate or to discontinue an investigation, a statement of reasons should be prepared (section 30(1 C)) www. emlawshare. co. uk

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. www. emlawshare. co. uk

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. www. emlawshare. co. uk

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. www. emlawshare. co. uk

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. ” www. emlawshare. co. uk

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 Mc. Carthey 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. www. emlawshare. co. uk

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)) www. emlawshare. co. uk

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. www. emlawshare. co. uk

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. www. emlawshare. co. uk

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. www. emlawshare. co. uk

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? ’ www. emlawshare. co. uk

Questions? www. emlawshare. co. uk