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How to stop Local Government Ombudsmen ignoring evidence
Introduction
Anyone who has had more than a passing acquaintance with the local government ombudsman is aware that they often ignore
evidence that supports a complainants case. They have to do this to sustain their bizarre decisions. This couldn't happen in a court of law because all evidence is put before a judge by the parties to a case. Both parties are also allowed to test the validity of any evidence presented. As a result a judge who ignores evidence whilst reaching a judgement creates a prima facia case for an appeal.
However, this is not the case with the Ombudsman because they are also responsible for investigating the complaint and as a result they can also influence and control the supply of evidence. Therefore, if the Ombudsman doesn't want to investigate a complaint they just pretend they can't find any evidence. Even if the complainant has supplied evidence of maladministration, the ombudsman, should they wish to, can just ignore it. My case provides an example of that tactic being used on numerous occasions.
Therefore, complainants need a method to ensure that relevant and pertinent evidence in support of their complaint is taken into account and not overlooked. I identified one possible way of doing that whilst reading the text of a lecture by Judge Lightman. Although his thesis was essentially about the pensions ombudsman it is obvious than his comments apply to other ombudsmen such as the local government ombudsman.
The full text of the lecture can be read by clicking here
As far as I am concerned, one of the key statements made by Judge Lightman was;
'.... the existing judicial jurisdiction of the Ombudsman raises serious questions regarding compliance with the Human Rights Act and (for this and other reasons) should be transferred to a tribunal;'
Essentially we have a judge arguing that ombudsmen may not comply with the Human Rights Act (HRA). He even implies that if their work was undertaken by a tribunal the HRA issues would be resolved. However, there is still a major problem; it may be years before the government get around to doing anything about it. What complainants need is immediate help in their fight for justice against the unjust and unfair local government ombudsman.
I believe the only way to stop the Local Government Ombudsman ignoring evidence is for complainants to demand an oral hearing.
My argument
The local government ombudsman, like all ombudsmen, has two distinct roles. Firstly they are expected to investigate a complaint and secondly they are supposed to reach a judgement based on the evidence that they have discovered. This is normally classed as an inquisitorial system as opposed to the gladiatorial system used by our courts.
Unfortunately the inquisitorial system also allows ombudsmen to manipulate the facts to support their decision rather than having to base their decision on the facts presented. However, this system although far from ideal would still probably pass the floor test imposed by the European Court of Human Rights.
'The Ombudsman combines investigatory and judicial roles. It is not unusual on the Continent for an investigating judge to fulfil both roles and for this reason this situation could survive scrutiny in Strasbourg, but though his procedure may perhaps satisfy the floor test imposed by the European Court of Human Rights, that floor test does not impose the ceiling in national courts like those in the UK where the legal tradition adopts a much more rigorous standard;' Justice Lightman.
As a result it would be difficult to argue a human rights case against the Ombudsman based solely on the type of system they use. However, the European Convention on Human Rights requires that in the determination of civil rights a court or tribunal affords to the parties before it a fair trial. That raises the question as to whether the local government ombudsman can be classed as a court or a tribunal.
'In respect of his judicial role the Ombudsman is clearly a tribunal within the meaning of Article 6.' Justice Lightman
So it would appear the ombudsman in question does come within the meaning of article 6 as far as his judicial capacity is concerned. (Note: Judge Lightman excludes the ombudsman's investigative role)
Does that also include the local government ombudsman? One of the arguments that local government ombudsmen often put forward is that their decisions are not mandatory and, therefore, they should be excluded from article 6.
As far as the local authority in question is concerned then the ombudsman is correct, their findings are not mandatory because they can be ignored by the authority.
However, as far as the complainant is concerned they can't ignore the ombudsman's findings they have no option but to accept them. Technically and legally the complainant may have a case against the ombudsman worthy of a judicial review but they cannot pursue their initial complaint about the local authority with the ombudsman (or any other appeal body) so in essence the ombudsman's decision is clearly mandatory and final as far as the complainant is concerned.
The fact that their decision is optional for one side but mandatory for the other makes the local government ombudsman's system inherently unfair. However, that digresses from the subject of oral hearings and I shall say no more here.
In light of the above I doubt if anyone would find it difficult to persuade a judge that the local government ombudsman should comply with article 6 as far as the complainant is concerned.
That raises the question as to whether the local government ombudsman is complying with article 6. As far as Judge Lightman was concerned he had the following to say on the matter.
'There are a number of questions raised whether these requirements are satisfied in respect of hearing before the Ombudsman.' Justice Lightman
What are the questions raised? One of them is the fact that the ombudsman delegates judicial decisions, something no judge could ever do. Can you imagine a judge telling a court usher to do his job and then just signing off the usher's findings?
This is what Judge Lightman had to say on the matter
'...staff investigate complaints as and when received, report to him on them and prepare draft decisions for his consideration and signature. This is inevitable in view of his very substantial workload and is (unfortunately) not infrequently apparent from the decisions themselves. This is very troubling. This procedure is perfectly normal for an administrative, but not for a judicial, body. For it means not merely that the adjudicator receives privately relevant material through and from his officials but the procedure is calculated to enable' him to sign off decisions effectively made by his staff;' Justice Lightman
And therein lies the problem, judges have to have relevant qualifications together with a substantial amount of training and experience before they take a judicial decision. The ombudsman and their staff don't need any. In addition, and more worrying, is that investigators acts as a filter for all the evidence, prepares draft decisions and submits these to the ombudsman for signing off. That in itself is open to very serious abuse. As a famous judge once stated justice must not only be done it must be seen to be done and in the ombudsman's case it cannot be seen to be done. In an open court the parties and their advisors have no filter between the judge and themselves. In the ombudsman's case they (or their staff) filter the facts and evidence about the case and that can't be a right and just way of going about it.
However, if that's the case how do the continental courts manage when they also use the inquisitorial system? The answer is oral hearings. Before a court makes a finding of fact each party to the case should be given the opportunity to question and validate the evidence.
Judge Lightman had the following to say during his lecture
'Since the decision of the Ombudsman is final on questions of fact, there is likely to be an entitlement to an oral hearing and the examination of witnesses. I understand that though he recognises the right to both the Ombudsman has had very few such hearings (in total not exceeding four).' Justice Lightman
Why don't all complainants ask for an oral hearing? In essence because the ombudsman doesn't advertise the fact they may be entitled to one. Unfortunately, it's not up to the ombudsman to tell the complainant about oral hearings it's up to the complainant to ask for one.
'...in Wakelin v Read [2000] 26 PBLR (22) Mummery LJ made clear it is for the parties to request an oral hearing for evidence and argument and that a heavy price may have to be paid if the request is not made.' Justice Lightman
That clearly puts the onus on the complainant to demand an oral hearing.
However, he also stated during his lecture,
'It is however proper and it may be incumbent on the Ombudsman to point out to litigants the existence of these rights if they are not aware of them, and this must surely be so in case of litigants in person. If the parties are fully informed of their rights and exercise them on any large scale, it must be obvious that it would not be practicable for the Ombudsman to conduct any substantial number of such hearings, let alone in public, having regard to the calls on his time and his limited staff and facilities;' Justice Lightman
That may indicate why the ombudsmen are so secretive about a complainants right to an oral hearing. If more than a few people requested an oral hearing it would probably bring the system to standstill. However, that is clearly not a complainant's problem, all they want is for the ombudsman to look at rather than ignore the facts of their case. If the ombudsman won't do it without an oral hearing then you can't blame complainants for demanding an oral hearing.
Obviously the timing of a demand for an oral hearing is important; ideally it would be better to make that decision when you are aware of the other party's position. Unfortunately that is near impossible because the ombudsman often rings up the council, accept their side of events and make a decision to terminate the complaint before the complainant has any idea of what's going on. Therefore, that tactic would force a complainant to demand an oral hearing when they submit a complaint. In any event it should come before a final decision on their complaint is taken.
Luckily even if the decision has been made, as long as no formal report was issued then all is not lost. A complainant is free to request comeback on their complaint and when they do they could also demand an oral hearing.
As far as I am concerned if a local government ombudsman refuses a valid request for an oral hearing then they have infringed a complainant's human rights to justice in order to sustain their unfair and unjust system.
Summary
The local government ombudsman often ignores evidence. Oral hearings may be the only way a complainant can stop this dubious practice. By requesting an oral hearing a complainant would have the opportunity to put their evidence directly to the ombudsman and question and validate the other party's evidence. This tactic may just bring the local government ombudsman to a grinding halt but that is entirely a problem of their own making. If they didn't constantly ignore valid evidence there would be no reason for an oral hearing.
As far as the right to an oral hearing is concerned;
'...under Article 6 of the European Convention on Human Rights as applied in this country the parties are entitled to an oral hearing at which oral evidence is given and tested by cross-examination and each party is entitled to make an oral presentation of his case. Indeed the Ombudsman recognises that this is so and (when requested) provides such an oral hearing. ...the Ombudsman refers to the fact that hearings do tend to interrupt the work of the office. I would expect the numbers to increase if there were greater facilities for them and when the right to them is better known.' Justice Lightman
As far as a replacing the ombudsman with a tribunal is concerned
'I would expect the tribunal to be constituted by a legally qualified chairman who could sit (where appropriate) with lay members drawn from both sides of the industry to have either a part time or full time deputy chairman who could hear cases which for any reason could not be heard by the Chairman. There is no reason why the administration of justice before the Tribunal should not be quick, cheap and efficient, and most certainly as professional and sure as the present procedure before the Ombudsman.' Justice Lightman
Postscript
Now all that's needed is a legal test case to prove (or disprove) my understanding of Judge Lightman's comments regarding a complainants Human Rights to justice.
This is what Ofcom had to say about Oral Hearings when they were introducing a telecoms Ombudsman
8.6 'Article 6 of the Human Rights Act refers to the right for a "fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Again, industry will need to consider the implications of the Act. Where Article 6 applies, there is no automatic obligation for an Ombudsman to hold a public hearing if the parties concerned do not require it, or if the complaint is considered to be frivolous or vexatious, or there is no arguable point.'
Appears to prove my case as far as oral hearings are concerned!
Trevor R Nunn
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