Recent developments in the Local Government Ombudsman service
Peter Whiteley, an Investigator at the Local Government Ombudsman (LGO), outlines recent changes in the law that have widened the LGO's powers, and the possible impact of these changes.
In the December 2007 issue of Adjust, Steven Cuthbertson gave an introduction to the service provided by the three Local Government Ombudsmen. Following a recent change in the law, the Ombudsmen's powers have been widened. This article sets out these changes and the possible impact they may have.
The Legal Framework
1. The Local Government Act 1974 (LGA 1974)
As explained in the previous article, the Ombudsman service was set up by this Act, with two main statutory functions:
- to investigate complaints against councils (and some other authorities)
- to provide advice and guidance on good administrative practice.
The main activity is the investigation of complaints, which the LGA 1974 states is limited to complaints from members of the public alleging they have suffered injustice as a result of maladministration. The article gave examples of typical findings of maladministration (such as delay, not following policy or the law) and injustice (such as not receiving a service, financial loss or time and trouble) – neither of which are defined in the Act. It also referred to limits on the Ombudsmen's jurisdiction, in particular the fact that where there is an alternative remedy such as a right of appeal to a statutory tribunal, the Ombudsmen will not normally investigate the complaint unless it is unreasonable to expect someone to use that remedy.
The article also mentioned activities undertaken in relation to giving advice on good practice, including special reports and training for local authorities. As an extension of its training activities, the Ombudsmen have developed a training course for lawyers, accredited by the Solicitors' Regulation Authority.
2. The Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007
The Regulatory Reform Order enabled the Ombudsmen to investigate and report on complaints jointly with the Parliamentary & Health Service Ombudsman covering their different jurisdictions. The first such joint report was issued in March [Injustice in residential care: A joint report by the Local Government Ombudsman and the Health Service Ombudsman for England. March 2008]. The Order also allows the Ombudsmen wider discretion to consider a complaint that has not first been notified to the council, as well as introducing a new power to appoint a mediator or other person to assist with the investigation of a complaint.
3. The Local Government & Public Involvement in Health Act 2007 (LGPIHA)
More recent changes have widened the Ombudsman's powers further. Part 9 of the LGPIHA came into effect on 1 April. The main changes to the Ombudsmen's service this brought into effect include:
- the Ombudsmen may look at service failure in addition to maladministration
- the Ombudsmen will have a limited power to investigate where an apparent case of maladministration comes to light even though they have received no complaint about the matter
- complaints about procurement of goods and services are now within jurisdiction
- the Ombudsmen may issue a 'statement of reasons' instead of a report if they are satisfied with the council's proposals to remedy its failures
- there are new powers to publish Ombudsmen's decisions other than reports
- complaints no longer need to be made in writing.
Service failure
The scope of the matters that may be considered has been widened to include complaints about failure in service provision, without the need to be certain there has been maladministration. Although in many cases where a service has not been provided there will have been maladministration, that may not always be the case. There may be some cases where a service failure can be identified without this, for example where residents of a road of newly constructed houses complain that their rubbish was not collected for weeks after they moved in.
One point to bear in mind, however, is that the Ombudsmen may not review the merits of a decision that has been made without fault. So if the issue is really about the merits of a discretionary decision on, for example, whether to provide a service that is not statutorily required, it will not be possible to interfere with that decision. But if it is clear that someone should be receiving a service to which they have a statutory entitlement, that is a matter which can be considered, without necessarily demonstrating maladministration.
Apparent maladministration
The LGPIHA allows the Ombudsmen to investigate a matter where, during the course of an investigation, it becomes apparent that a third party may have suffered harm. This might apply where, for example, an investigation into a housing allocations complaint shows that someone other than the complainant suffered injustice because they should have been allocated a council property but their application was wrongly refused. Or, while investigating complaints about school admissions, it becomes apparent that another child was wrongly refused a place at the school.
In the past the Ombudsmen would not pursue such an investigation and would only exhort the council to take action. This power gives the Ombudsmen more 'teeth'; without a complaint from the person affected, they can now make enquiries and if necessary recommendations in respect of people other than the complainant. Before pursuing such an investigation, however, the Ombudsmen would need to draw the council's attention to the matter for consideration and response.
Procurement
The Ombudsmen now have jurisdiction to consider complaints concerning the way authorities procure goods and services from other parties. This is particularly likely to be relevant to situations such as social care departments entering into arrangements with independent providers to arrange provision for service users. The Ombudsmen may now investigate complaints about a local authority's practice when placing children in children's homes and, for example, may wish to consider whether the council's agreement with the provider requires them to have appropriate complaints procedures in place.
Statement of reasons and the new publicity powers
The vast majority of decisions on complaints are made by investigators acting under delegated powers, and where a remedy is agreed with the authority this is recorded as a 'local settlement'. Under the LGA 1974, where an investigation is completed the Ombudsmen are obliged to issue a report, which is (usually) made public. Where a complaint is settled or discontinued for any other reason, the Ombudsmen are required to issue a 'statement of reasons' for doing so. But there is no power to make details of these decisions public.
Under the LGPIHA, even where an investigation is completed, the Ombudsmen may now choose to issue a statement of reasons rather than a full report, if they are satisfied with the action taken (or proposed to be taken) by the council to remedy the injustice to the complainant. It is too early to say how often the Ombudsmen will use this new power. When it is used, the requirement on councils to place public notices of a published report in the local press will not apply. The Ombudsmen, however, now have a new power to publish all or part of the statement.
This new publicity power also extends to all decisions (including local settlements) to discontinue an investigation before it has been completed.
Complaints not in writing
Under the LGA 1974, complaints had to be made in writing. The Ombudsmen now have power to disapply this, and will accept complaints made in other ways, for example by telephone.
Other developments
The provisions of the LGPIHA allow a wider scope for considering complaints against councils and more flexibility in how complaints can be dealt with. One example of this is the ability to consider complaints without the need for them to be made in writing.
The Ombudsmen have taken advantage of the new regime to set up a new advice service, known as the LGO Advice Team. This team is the first point of contact for the service and now deals with all enquiries and new complaints from the public, providing a more flexible and customer-focused service. Of course, members of the public can still complain in writing if they wish to, but we may now agree to accept a complaint made in another way, for example by telephone.
Summary
These new powers allow the Ombudsmen more scope for reviewing the actions of councils, loosening some of the restrictions on their jurisdiction. In particular, they can now consider issues of maladministration that become apparent during the course of an investigation without having received a written complaint from those affected, and look at issues of failure in service provision.
They also fit neatly with the Ombudsmen's second role of providing advice and guidance on good administrative practice. They allow the Ombudsmen greater flexibility in publicising their decisions, bringing more issues to the attention of councils and the public. One other change is that the Ombudsmen's annual report must now be laid before Parliament. This allows further accountability in relation to the Ombudsmen's work.
One thing that has not changed, however, is the restriction on considering complaints where another remedy is available. So if a complainant has a right of appeal to a tribunal or a remedy in a court, the Ombudsmen would still expect them to use that right, unless it is not reasonable to do so. However, the relationship between ombudsmen and the courts is being considered, among other issues, by the Law Commission as part of its current work on remedies against public bodies. A consultation paper is expected later this year. So yet more change may be round the corner.
Article written by Peter Whiteley, Investigator
Contact details:
LGO Advice Team
0845 602 1983
www.lgo.org.uk