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How Local Government Ombudsmen hide the true level of maladministration
Introduction
Ombudsman watchers are already aware that Local
Government Ombudsmen use a number of highly dubious
methods to significantly reduce the chance of a local authority
ever being found guilty of maladministration in the first place.
Although these methods block over 70% of complaints, some 28% of
complaints still manage find there way through leaving the LGO
with little choice but to make a finding of
maladministration. Therefore, what the LGO, and Local Authorities, needed was
another way to further reduce the number of cases of
maladministration they have to publicly report.
The local settlement illusion allows Local Authorities to reduce
the number of findings of maladministration against them by a
factor of about 18. All a Local Authority has to do to block a
finding of maladministration is to offer a local settlement and
the LGO, like all good magicians, will magically make the finding
of maladministration disappear. However we believe the LGO has no express or implied statutory
power to implement Local Settlements and this article sets out to
prove our point. If we are right they are illegal and the
LGO's actions are ultra vires, (beyond the legal power
or authority of a person or official or body) and as a result the LGO is guilty of malfeasance, (misconduct or wrongdoing, especially by a
public official).
To illustrate our argument it is essential to start by
identifying the relevant parts of the Local Government Act, which
gives the LGO their statutory powers. Please note without
statutory powers the LGO would have no more power than a member
of the general public.
The 1974 Local Government Act established the Local
Government Ombudsman. Section 26 (1) expressly gives the LGO the
power to investigate a complaint. stating 'Subject to the provisions of this Part of
this Act where a written complaint is made by or on behalf of a
member of the public who claims to have sustained injustice in
consequence of maladministration in connection with action taken
by or on behalf of an authority to which this Part of this Act
applies, being action taken in the exercise of administrative
functions of that authority, a Local Commissioner may investigate
that complaint'.
Whilst section 26 (10) expressly gives the LGO discretion
regarding investigations. 'In determining whether to initiate,
continue or discontinue an investigation, a Local Commissioner
shall, subject to the preceding provisions of this section, act
at discretion; and any question whether a complaint is duly made
under this Part of this Act shall be determined by the Local
Commissioner'.
We accept that section 26 (1) and (10) expressly gives the
LGO the discretionary power to investigate a complaint. That is not at issue.
What is at issue are the following points.
Argument number 1.
Reading the relevant parts of the 1974 Local Government Act in
full, you will discover a number of sections devoted to
investigations and a number of sections devoted to reports.
You will find no section devoted to local
settlements. Therefore there is clearly no express provision for Local
Settlements within the act. Leaving the LGO relying on an implied
provision to support their use of Local Settlements. However, the word investigation occurs about 42 times and the word
report occurs about 39 times whilst the word settlement doesn't occur
at all, making it very difficult to argue that the LGO has the
implied power use Local Settlements.
Argument number 2.
Over the last few years we have seen a gradual move towards a unified
Public Ombudsman services. Whilst the English LGO still labours
under the old 1974 Local Government Act, Scotland and Wales have
already introduced a new unified Public Ombudsman systems. In the
Welsh Ombudsman Act of 2005 the Welsh Ombudsman has expressly
been given a new and additional statutory power,
Alternative resolution of complaints
(1) The Ombudsman may take any action he thinks appropriate with
a view to resolving a complaint which he has power to investigate
under section 2.
(2) The Ombudsman may take action under this section in addition
to or instead of conducting an investigation into the
complaint.
(3) Any action under this section must be taken in private.
If the LGO for Wales already had the power to locally settle a
complaint why do they need this new express power to resolve a
complaint. Could it be because the LGO for Wales like the LGO for
England never had the power to locally settle a complaint and the
Government is attempting to plug this legal loophole? The English LGO have not
yet been given this additional power so they are acting illegally every time
they resolve a complaint with a Local Settlement.
Argument number 3.
A settlement is a popular method of ending a civil court case. The
legal definition to a settlement being the resolution of a
dispute prior to the rendering of a final decision by the trial
court . The two parties can agree to settle the case at any time,
until of course the Judge finds in favour of one party or the
other. In fact the majority of civil cases are settled out of
court to save the time, trouble, expense and risk of proceeding
with court action. In essence a settlement is an agreement
between the two parties. In most cases this involves the defence
making an offer the plaintiff can’t refuse
resulting in the case being dropped before judgement is
delivered.
Clearly settlements have major benefits for both parties and the
courts. If settlements have benefits for all parties involved why
are LGO Local Settlements so wrong. The answer to that is because
they are not really settlements as most people understand them at
all. They are a settlement between the Local Authority and the
LGO, the complainant has no say in the matter.
This brings us back to the magical world of the LGO. There is no
point in the LGO telling the truth and stating that they have
decided to hide a finding of maladministration for the benefit of
a Local Authority, what they need is the illusion that the case
has been settled in advance of them finding
maladministration.
How does the LGO give the illusion a case has been locally
settled, easy they just say so. Anyone could be mistaken for assuming this meant that the case
had been resolved to the satisfaction of the complainant.
However, they would be wrong. Firstly the LGO does not use the word settlement in isolation
they nearly always use the term local settlement However, there is no legal
definition of local settlement. Therefore we must look at the two
words in isolation. Legally the normal literal rule is applied to
the definition of words.
The terms Government and Local Government are a clear example of
the normal use of the word local. However, I believe the LGO
wrongly uses the word local to imply that the
complaint was settled locally by both parties. In reality,
however, many cases are settled at the request of the Local
Authority and with the agreement of the LGO without the agreement
of the complainant. In those circumstances that makes the use of
the word local wholly erroneous and misleading. The LGO can hardly be termed a local
organisation.
Argument number 4.
The Local Government Ombudsman have a
comeback procedure that allows them to investigate a
complaint, that they had previously refused to investigate,
should any one of four criteria be met. The comeback procedure
not available if the Ombudsman has already produced a report on
the matter.
However, when the Ombudsman locally settle a case
they don't usually issue a report. That means that
the complainant is legally and technically free to request comeback on their case. If a normal settlement had been reached
that would clearly be impossible. That proves they are
just a devious device used by Local Government Ombudsman to bury maladministration rather than a means of
properly settling a complaint.
Trevor R Nunn
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