Commission for Local Administration in England

Commission for Local Administration in England

Review of the Operation of Part III

of the Local Government Act 1974

1. Introduction

Section 23(12) of the Local Government Act 1974 (as amended by the Local Government Act 1988) requires the Commission every three years to review the operation of the provisions of Part III of the Act concerning the investigation of complaints.

This paper sets out the Commission's conclusions and recommendations following the review it has conducted in 2002/03. Some of the recommendations have featured in previous reviews and have already been accepted by Government but action has not yet been taken on them.

2. Consultation

2.1 In addition to the Welsh Commission for Local Administration, the Commission decided to consult a wide range of interested bodies including the Local Government Association (LGA), Society of Local Authority Chief Executives (SOLACE), Association of Council Secretaries and Solicitors (ACSeS) and representatives of voluntary organisations and advice agencies. Copies of the comments the Commission received are attached [in separate pdf file].

Particular concerns were expressed by SOLACE about the Commission's proposals on:

Local authority functions and services delivered by partnerships/companies etc (see paragraph 5).

Amending paragraph 3(3) of Schedule 5 of the 1974 Act to give the Ombudsmen discretion to investigate complaints about the way local authority functions have been carried out (see paragraph 7.3).

2.3 When the Commission considered the results of the consultation exercise, it decided to reaffirm the proposals set out in paragraphs 5 and 7.3 (although the Commission did agree to review the wording of paragraph 5.3). However, in view of SOLACE's concerns, the Commission suggests that the Department might wish to invite representatives of the Association to any discussions the Department may subsequently have with the Commission about these proposals.

3. Merger of the public sector ombudsmen service in England

The Cabinet Office undertook a review of the public sector ombudsmen in England in April 2000. Its main recommendation was for the creation of a new, independent body to carry out the responsibilities currently fulfilled by the Ombudsmen for central government, local government and the health service. In the light of consultations on the review, the Government announced in July 2001 that it accepted the Cabinet Office's recommendation (although no timetable for the legislation was given). The Government also stated that it would develop:

“…proposals for the precise powers and accountability of the new body and on whether its jurisdiction should be extended beyond the bodies subject to the jurisdiction of existing ombudsmen.”

3.2 Since July 2001, there have been extensive discussions involving the Commission; the Parliamentary/Health Service Commissioner (PCA/HSC); the Cabinet Office and other interested Government Departments and bodies (eg the ODPM). It is understood that hopes of a draft Bill featuring in the 2003/04 Parliamentary timetable (with implementation of the merger in 2005) are receding.

3.3 The Commission wishes to emphasise that this paper fulfils the narrow requirement of LGA 1974 to review every three years the operation of the provisions of Part III of the Act concerning the investigation of complaints. If the points made to Government regarding possible merger (together and in consultation with the PCA/HSC) were not to be adopted the Commission will wish to explore with Government ways in which it can work as closely as possible with the PCA/HSC within the constraints of the current legislation. And in the meantime every effort is being made by the two organisations to work together, to pool resources and to facilitate information exchange.

4. Decisions by letter and local settlements

Section 30(1) requires that, in any case where an Ombudsman conducts an investigation, a report on the results of that investigation shall be issued. In practice, however, on many occasions during the course of investigating a complaint the local authority may take, or agree to take, some action which the Ombudsman considers to be a satisfactory response to the complaint (this is known as a `local settlement'). In other cases, during the course of the investigation it may become clear that there was no maladministration, or no consequential injustice, or insufficient injustice to justify continuing the investigation. In such cases the Ombudsman decides to discontinue the investigation by letter and without publishing a report.

4.2 The Commission has Counsel's Advice that it is proper for Ombudsmen to do this because Section 26(10) gives the Ombudsmen discretion to initiate, continue or discontinue an investigation. However, the Commission recommends that the 1974 Act should be amended to give express statutory recognition to the current practice of discontinuing investigations by letter as outlined in paragraph 4.1.

4.3 The Commission's proposal would be in the spirit of one of the recommendations of the KPMG report, which was that the focus should be changed from the production of reports to resolving disputes.

5. Partnerships

5.1 In April 2001, the DTLR issued a consultation paper about how to achieve Best Value through a change to the law to facilitate partnerships between councils, or between them and other public bodies and the private and voluntary sectors. The Commission pointed out in its response to the Consultation Paper that it was concerned that, “under the new arrangements, there should be no reduction in the ability of members of the public to obtain redress for injustices caused by maladministration……….It seems to us essential that members of the public should know whether they can or cannot complain if they are aggrieved by the way they have been treated. There should be no uncertainty in law about the jurisdiction of the Ombudsmen under the new arrangements.”

To illustrate this point, a partnership may include both representatives of local authorities and others. It would not be an “authority” mentioned in Section 25 of LGA 1974 as being subject to investigation. The constituent local authorities would be within jurisdiction insofar as they are taking decisions in the capacity as a local authority (and not as the partnership). If the complaint is about a decision taken by one or more local authority, the decision would be within jurisdiction. However, if the decision was taken by the partnership, it would be outside the Ombudsmen's jurisdiction.

The concerns the Commission expressed to the Department in 2001 have been borne out in practice. It can be difficult for the Ombudsmen to be certain that they have jurisdiction over a complaint about some local authority functions, because of the complex and diverse nature of the arrangements that may be entered into by local authorities to deliver them. And members of the public with a complaint about the provision of a local authority service may not have recourse to an Ombudsman for a remedy. The Commission therefore recommends that the Government reviews the legal framework of the new arrangements to remove these uncertainties about the Ombudsmen's jurisdiction.

6. Jurisdiction

6.1 The School Standards and Framework Act 1998 brought within the Ombudsmen's jurisdiction from 1 April 1999 the actions of all admission authorities in respect of their admission functions (but not exclusions). The Commission can see no sufficient reason why the other actions of governors of all publicly-funded schools should not be brought within the Ombudsmen's jurisdiction, subject to the provisions of paragraph 5 of Schedule 5.

6.2 Paragraph 5(2) of Schedule 5 of the 1974 Act excludes from the Ombudsmen's jurisdiction “any action concerning” internal matters in schools such as the giving of instruction. The Commission proposes that the words “any action concerning” should be deleted, because they might leave the Ombudsmen open to challenge in the investigation of certain complaints. For example, when investigating a complaint the Ombudsmen may need to consider whether the actual provision being made by a school complies with a child's Statement of Special Educational Needs. This might be argued to be about action concerning the giving of instruction. Similarly, the investigation by the Ombudsmen of exclusion appeals (by education appeal panels which are within jurisdiction) might be argued to be action concerning discipline in a school. It is important to remove any scope for argument about this.

At present, the Ombudsmen have jurisdiction over complaints about the internal management of a children's home managed by a local authority as a social services authority, but they do not have jurisdiction over a complaint about the internal management of a local authority run residential special school. The Commission believes that this is anomalous and proposes that the Ombudsmen should have jurisdiction over the internal management of all schools and children's homes in so far as child protection issues are concerned.

The Commission is concerned about the lack of clarity in the Ombudsmen's jurisdiction over complaints about the actions or inactions of Child Protection Conferences (CPCs) and Area Child Protection Committees (ACPCs). In particular, the Commission considers it unsatisfactory that a complainant might have to go to the Police Complaints Authority, the Health Service Ombudsman and the Local Government Ombudsman to complain about the actions of several members of one of these bodies. The Commission expressed its concern about this when it commented in 1998 on the Department of Health consultation paper `Working Together to Safeguard Children'.

The Commission recommends that the current uncertainties about the Ombudsmen's jurisdiction over complaints about the actions or inactions of Child Protection Conferences (CPCs) and Area Child Protection Committees (ACPCs) should be removed by amending the 1974 Act to bring these bodies within their jurisdiction.

6.5 Schedule 5.1 excludes from the Ombudsmen's jurisdiction complaints about the commencement or conduct of civil or criminal proceedings before any court of law. This exclusion can cause both the Ombudsman and the complainant difficulties. The Commission therefore proposes that Schedule 5.1 should be amended by deleting the words “commencement or”. The FMPR reviewer made this recommendation in 1996. The Government accepted that there was a case for it and said that it intended to consult interested parties on proposals to give effect to this change in jurisdiction.

7. Bodies within jurisdiction

Section 25(1) of the 1974 Act was amended to bring the London Transport Users Committee (LTUC) within the Ombudsmen's jurisdiction. The Commission recommends a consequential amendment to paragraph 3(2) of Schedule 5 of the 1974 Act (which prohibits the Ombudsmen investigating `all transactions of an authority … relating to the operation of public passenger transport') to allow the Ombudsmen to consider a remedy for the substantive complaint, as well as the way in which the LTUC had handled the complaint.

Section 26(1) of LGA 1974 specifies that complaints must be about “maladministration in connection with action taken by or on behalf of an authority… being action taken in the exercise of administrative actions of that authority.” The Commission suggests that the position of staff employed by Superintendent Registrars, Rent Officers and Coroners is clarified, for the following reasons:

Superintendent Registrars are appointed by councils, but they hold office at the pleasure of the Registrar General - they are not employed by the council. The general responsibility for the service falls on the Registrar General, an officer of the Crown. But it is a function of the council in respect of registration services to set them up, provide premises and fund and monitor them. It is unclear, when considering a complaint about a member of the Superintendent Registrar's staff, whether (a) that person is employed by the council or the Superintendent Registrar and (b) the complaint is within the Ombudsmen's jurisdiction. (Note: The Registrar General is not in the PCA's jurisdiction, but even if it was this would not bring Superintendent Registrars or their staff within the PCA's jurisdiction because the Registrar General has no powers of supervision over them - the office holder's function is restricted to the making of regulations).

The appointment remuneration and administration of Rent Officers is a function of the Secretary of State. Complaints about their actions are therefore within the jurisdiction of the Parliamentary Commissioner for Administration (PCA). But staff employed by Rent Officers are appointed and paid by councils. It is unclear, when considering a complaint about a member of the Rent Officer's staff, whether it should be considered by the PCA or the Ombudsmen.

Coroners and Coroners' officers are not within the PCA's jurisdiction. But they may have staff carrying out work on their behalf eg police officers who are currently not within an Ombudsman's jurisdiction. (Police authorities are currently within the Ombudsman's jurisdiction, but not the actions of individual police officers.) Here again this is unclear.

7.3 Paragraph 3(3) of Schedule 5 of the 1974 Act provides that certain kinds of contractual and commercial transactions are within jurisdiction. But transactions under a Public General Act which are for procurement by the council of goods and services necessary to discharge these functions are outside jurisdiction. When LGA 1974 was passed many Public General Act functions were carried out by councils. The growth in procurement by councils in the intervening years has had the effect of removing from the Ombudsman's jurisdiction complaints about the way functions have been contracted out. The Commission suggests that this part of the Schedule should be amended so that the Ombudsmen have discretion whether to investigate these complaints, taking into account factors such as the resources at the complainant's disposal (whether an individual or organisation) to seek a legal remedy for their complaint.

7.4 The Commission has confirmed in recent correspondence with ODPM that the elected regional assemblies, when these are established in the future, will be within the Ombudsmen's jurisdiction.

7.5 There is no statutory authority for Social Services complaints from qualifying individuals to be dealt with other than through the Social Services statutory complaints procedure. But the Commission understands that Care Trusts do not always use the statutory procedure but use the NHS complaints procedure instead. This position may be further complicated if Care Trusts are given delegated powers to charge for providing residential care services under new Government proposals. The Commission considers that there are uncertainties about the position on complaints about the Social Services component of services provided by Care Trusts which need to be clarified by the Government.

8. Investigation at the request of a local authority

Section 26(1) provides that the Ombudsmen can conduct an investigation only if they have received a complaint from a member of the public who claims injustice in consequence of maladministration. The Commission can see merit in a similar provision to that contained in Section 10 of the Health Service Commissioners Act 1993 which enables a health body to refer a complaint to the HSC. This would give the Ombudsmen discretion to undertake an investigation without having received a complaint if a local authority asks the Ombudsman to carry out an investigation when it has matters requiring an independent investigation.

9. Complaints in writing

Section 26(2) specifies that a complaint may only be entertained by the Ombudsman if it is made in writing. The Commission recommends that this should be amended to make it clear that a complaint received electronically/by telephone may also be considered. (The Commission notes that Section 10(3) of the Scottish Public Services Ombudsman Act 2002 states that `A complaint must be made in writing or electronically unless there are special circumstances which make it appropriate to consider a complaint made orally.”) This would be in accordance the KPMG review's recommendation that the issue of complaints having to be in writing needed to be addressed.

10. The 12 months rule

Section 26(4) provides that a complaint cannot be considered if it is not made to the Ombudsman or “a member of any authority concerned” (ie a councillor) within 12 months from the day the complainant first had notice of the matters complained of, unless the Ombudsman considers it reasonable waive the rule. The reference to “a member of any authority” can give rise to an anomaly because a person may draw a complaint to the attention of a councillor within 12 months of first knowing of the matter but not make a complaint to the Ombudsman until long afterwards, thus defeating the objective of section 26(4). The Commission recommends that the sub-section should be amended to remove the anomaly.

11. Payment of expenses

Section 28(3) of the 1974 Act allows an Ombudsman to pay a complainant or any other person attending or furnishing information for the purposes of the investigation the expenses she or he has properly incurred, and allowances by way of compensation for the loss of his/her time. These allowances are payable “in accordance with such scales and subject to such conditions as may be determined by the Minister for the Civil Service”. The FMPR reviewer recommended that the Commission should have greater flexibility in such matters. The Commission suggests that the phrase in inverted commas should be deleted.

12. Provision of information relevant to the Ombudsmen's investigation

Section 28(5)(b) of the Trade Descriptions Act 1968 creates an offence to pass on information obtained in pursuance of that Act without the consent of the person from whom it was obtained, unless it is for the purposes of the performance of functions under the Act. A similar provision can be found in Section 33 of the Health and Safety at Work etc Act 1974. Such prohibitions have caused the Ombudsmen difficulties in some cases because they have not been able to obtain information relevant to their investigation.

The Commission recommends that Section 29 of LGA 1974 is amended to provide that the furnishing of information or production of documents under this Section would not be an offence under any other legislation.

13. Payment for expert advice

Section 29(6) requires the Ombudsmen to seek the Minister for the Civil Services' consent before expenditure is incurred on external advice to assist them in any investigation. The Government accepted the FMPR recommendation that the requirement to seek the Minister for the Civil Services' consent was unduly restrictive and confirmed that it intended to seek legislation at an early opportunity to remedy this. However, this has not been done.

Data Protection Act 1998 (DPA)

Sections 28 and 32 of LGA 1974 include provisions which restrict the disclosure of information obtained by the Ombudsman in the course of or for the purpose of an investigation. DPA 1998, which specialist Counsel has advised overrides LGA 1974, has had a significant impact on these provisions, in particular Section 32(2) LGA 1974 which prohibits disclosure in respect of personal data. The Lord Chancellor's Department (LCD) is currently carrying out a review of how DPA 1998 works in practice, and the Commission submitted a detailed response to the LCD's Consultation Paper by the 31 January 2003 deadline. The Commission's response made a number of observations and suggestions about DPA 1998, including comments on the limitations of the exemption from DPA requirements provided to it by Section 31(4) of DPA 1998. But the Commission has not suggested any specific amendments to LGA 1974.

May 2003

The KPMG Efficiency Study of the Commission carried out in 2001.

The Financial Management and Policy Review of the Commission carried out in 1996.

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