Ombudsman - Local Government
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The Local Government Ombudsman
The Commission for Local Government in England (more commonly known as the Local Government Ombudsman – there is a Parliamentary Ombudsman as well) has the job of investigating complaints made against councils and certain other local authorities. Ombudsmen are appointed by Her Majesty the Queen and are independent of the council and government. They have the same powers as the High Court to require the production of documents or evidence in connection with their investigations. Such investigations are carried out in private, but at the close of the investigation a publicly available report or summary is normally produced. There are equivalent Ombudsman offices in Wales and Scotland.
Complaints about highways make up 7% of the ombudsman's workload. They range from concerns about major traffic regulation schemes to missing signs on obscure footpaths. Most are relatively straightforward, but some – for example, failure to act over obstruction by growing crops – present their own problems. The ensuing investigations (which can take several months to complete) provide a stern test of any authority's procedures. Many of the complaints against local authorities turn on whether procedures were in place, whether they were understood by staff and whether they were followed. The Ombudsman publishes a series of guides on good practice.
The Ombudsman's guidance on good administrative practice presents a serious target for local authorities to try to achieve when carrying out their duties. The principles that should be incorporated into an enforcement strategy include the need:
- to understand the relevant laws
- to have regard to codes of practice and government regulations
- to seek consistent decisions through clear & relevant policies
- to communicate policies to customers
- to adhere to policies
- to give thought to the likelihood of special circumstances
- to make procedures and decision making processes transparent
- to act promptly, but not prematurely
- to investigate thoroughly
- to have in place adequate written procedures
- to liase with colleagues in different departments
- where appropriate, to advise individuals of their right to appeal
- to have a complaints system
What can the Ombudsman investigate?
The ombudsman can only investigate cases of maladministration where the complainant claims there has been an injustice (for examples of injustice, see below). There is no legal definition of maladministration, but essentially it means that there has been fault in the way a council has acted, or failed to act. It is not enough to avoid a charge of maladministration simply to point out that the law has not been broken. Maladministration is a much wider concept than unlawfulness.
Examples of maladministration in rights of way matters have included:
- failure to set a realistic timescale for obstructions to be removed from a highway;
- failure to advertise that a planning application affects a public right of way;
- failure to deal with definitive map modification order applications in a reasonable time, work on other matters not being held to be sufficient reason for delaying work on processing the applications;
- failure to inform the complainant and other residents of the existence of a footpath which their properties had been built over, and failure to inform the complainant and residents that an extinguishment order had been made by the council to stop up the footpath.
The ombudsman may not investigate a complaint simply based on the fact that the complainant does not agree with an action, decision or policy of the council.
In addition to an allegation of maladministration, the complainant must have suffered an injustice. Examples of injustices found by the ombudsman in rights of way matters have included:
- the use of the planning process to close a right of way as a means of limiting the objections that can be made;
- taking an unreasonable length of time to investigate applications for definitive map modification orders.
The ombudsman will not investigate cases where the alleged injustice is not considered sufficient to warrant an investigation.
Matters that are specifically excluded from the remit of the ombudsman include those:
- that the complainant has not yet raised with the council;
- that have lapsed for over 12 months, unless the ombudsman thinks it is reasonable to consider the complaint despite the delay;
- for which there is a formal alternative remedy, such as a right of appeal to a public inquiry or to a government minister or office or to a court, unless the ombudsman considers that there are good reasons why the complainant cannot exercise that right;
- that have already been the subject of such an appeal;
- that relate to any court proceedings;
- that affect all or most of the inhabitants of the council's area (for example, a complaint that the council has wasted public money);
- that relate to a contract for the supply of goods and services to the council.
The ombudsman may investigate complaints about county, district or unitary authorities and national parks but not about parish or town councils.
How does the ombudsman investigate?
Before launching an investigation, the ombudsman must first decide whether the complaint is one that may be investigated and whether the council has been given a reasonable chance to investigate the complaint itself.
If the complaint is not one that the ombudsman may investigate, the complainant will be informed in writing and usually given advice on how else to pursue the matter. If the ombudsman considers the complaint merits investigation, an investigator will be appointed and will contact the complainant and send a copy of the complaint to the council. The investigation may involve obtaining information from the council, further information from the complainant and information from other parties, and will proceed by letter, telephone or personal interview. The investigation, which may take many months, will continue until the investigator considers that he/she has sufficient information on which to base a decision.
If a complaint is upheld, a report is written and sent to the parties for comment. At this stage the parties may also submit new information. The final report is sent to the parties and usually made available to the public. Very rarely the ombudsman may decide not to publish a report. Within the report the complainant and individual officers are usually given pseudonyms.
The ombudsman's recommendation
If the ombudsman considers that the council is at fault and an injustice has been caused, a recommendation will be made as to how matters may be rectified. This may include a recommendation that the council makes a payment to the complainant to compensate for the injustice suffered and to go towards the out of pocket expenses the complainant has incurred. The ombudsman will not usually ask the council to meet any costs that the complainant has incurred in engaging a solicitor or other professional adviser, but can do so in some circumstances.
Examples of recommendations made to councils in rights of way cases include:
- the council should make a public apology to the complainant and others who were unable to use a route because of the failure of the council to take action to remove unlawful obstructions; and should make a 'substantial' ex gratia payment to cover the complainant's legal costs together with an additional £250 to cover the complainant's time and trouble in pursuing complaints with the council and the ombudsman;
- the council should set aside part of its resources to process outstanding statutory work and a payment of £500 each be made to the two complainants;
- the council should pay £2,500 in compensation to cover costs caused by delay in a in house sale following the council's failure to inform the owner of the existence of a footpath, now obstructed by the house. The council cannot be compelled to accept the findings and act on the ombudsman's recommendations, but it is rare for a council not to do so. If the ombudsman finds that maladministration has occurred but that no injustice has arisen, it is still important that the council considers ways to ensure that processes and practices are reviewed to eliminate the chance of maladministration in the future.
There is no right of appeal against an ombudsman's decision other than by way of judicial review in the High Court.
How do I deal with an ombudsman investigation?
It is essential to treat all investigations by the ombudsman seriously and to produce all relevant evidence. The ombudsman has the power similar to that of a court to require the production of information relevant to the investigation. Ombudsman investigations may take several months and will require a considerable amount of officer time.
Once the council is aware of the details of the complaint, a senior officer should undertake an internal review of all the evidence and a decision made as to whether the council has been at fault. If it is obvious that the council or its officers have acted in an unfair way, or against policy or practice guidelines, or in a manner inconsistent with its usual practice or procedure, the most appropriate course of action will normally be to offer to put matters right. In these circumstances, a proposal for action should be sent to the ombudsman, who will, if the offer is considered fair, normally halt the investigation and inform the complainant. The council must then act on the offer with due diligence.
Even if the ombudsman stops an investigation because the council has made an offer to rectify matters, it is still appropriate to undertake a review to ensure that practices, policy and procedure are amended to prevent a recurrence.
Most complaints (95%) are closed by letter because there was either no evidence of maladministration or injustice, or the matter had been settled, or because the complaint was out of jurisdiction.
Further information
There are three Local Government Ombudsmen in England and individual ombudsmen for Scotland and Wales. Additional information to complainants is available in a free leaflet 'How to complain to the Local Government Ombudsman?' and on the Internet at www.open.gov.uk/lgo. The Local Government Ombudsman produces an annual digest of cases. The digest for England is available from the Commission for Local Administration in England, 21 Queen Anne's Gate, London SW1H 9BU. Ombudsman cases are regularly reported in Footpath Worker, a quarterly bulletin produced by the Ramblers' Association.
A personal view of the process
What surprised me most about our investigation was the emphasis on the decision-making process. I didn't realise this initially, as you tend to see the case in terms of the complainants' desired outcomes.
In practice the investigation focused on how decisions came about, the level at which they were taken, and how they were documented. Our overall funding, interpretations of the law and the bigger picture were all of far less importance. Written evidence of decision-making really is crucial – especially in defending yourself. Your council will be vulnerable in ombudsman terms if officers have had to assume what senior managers or councillors want, or do not have key instructions or policies confirmed in writing. I imagine that such documentation – to bomb-proof ombudsman standards – is lacking in many authorities, given pressure to get things done, reduce paperwork, and the increased delegation of decisions away from councillors. I am now very careful to ensure that crucial decisions and advice are put down in writing, although this means that I often have to write memos to my bosses confirming verbal instructions.
Whilst investigations are meant to determine the facts impartially, in our case it felt more like the council having to defend itself against all the complainants' allegations, however seemingly spurious or far-fetched. One thing that tripped up a very committed colleague was his habit, given our limited resources, of initially saying to complainants 'I'll see if I can do something' or 'I'll fit it in if I can.' In the subsequent investigation such words were seen as a 'yes' undertaking by the council to do something, and not as the 'maybe' that the officer meant. So in ombudsman terms, if you are not 100% sure you can start and complete something, it's much safer (although not as friendly) to just politely refuse.
Don't forget that the investigation is focused on the council's actions; it's very tempting to get defensive at a personal level, and worry it will be like a criminal investigation, in a darkened interrogation room with an anglepoise lamp shining in your face. I found the investigating officers friendly and approachable, within the tightly defined job they have to do. Don't be afraid to take notes yourself whilst being interviewed, or to have a friend or adviser present if you feel it would help. Treat what the investigating officers say with caution though, as they don't have the final say. Ours was good enough to admit that because of the tenacity of the complainants, they were being extra thorough to make a decision that would stand up to a legal challenge.
The final report was pretty fair and balanced, albeit narrow in how it viewed our work. However, the attitude of the complainants and the way local media operates meant press coverage just highlighted the failings. The fact that only a very small proportion of the complaints were found to be justified and that only a small amount of the claimed costs were awarded was not publicised.
Looking after yourself
I think the thing you can most easily ignore during an ombudsman investigation is yourself. Whilst the investigation should be taken seriously, worrying is not going to change what's happened, nor help you put your case in the best light. I was lucky in that my personal life was very stable and I was in a supportive relationship, with no other stress factors, but there was no check on me by management to see if I was coping. I offer the following suggestions from my experiences.
Always remember that the complaint is about the council's duties – and not personally against you. The complainant may try to demonise you because it's easier to vent one's anger against something tangible, rather than attack the more subtle influences of an organisation's culture or those decision-makers away from the public gaze.
Don't be afraid to contact your council's occupational health service or your doctor if you think you are getting stressed; that's the professional thing to do. There is absolutely nothing to commend trying to be infinitely strong, letting it all build up and then going off sick or letting your performance suffer.
Keep the complaint in perspective. Compare the impact of rights of way problems to the very real hardship caused by failings in social services or healthcare. Remembering to do that helped me understand why councillors and chief officers will not lose sleep over rights of way complaints, and neither should you.
Do talk things over with a colleague from another authority. But choose wisely and talk to someone whose discretion you can rely on. Never forget that you work for the council – and it is the council that has the responsibilities to the public, not yourself. If it knowingly provides you with insufficient resources, a lack of political support or staff time, then that's its choice; it's not for you to cover up or feel responsible for such failings.
What difference did it make?
I don't regret going through the process of an ombudsman investigation; I feel much more confident in myself, and better understand the reasons why I am so frustrated. Ironically, the complaint also prompted very rare direct praise from councillors for defending the authority's political stance and priorities. Support also came from other colleagues, who could see that with current funding such complaints are pretty inevitable. Sadly, one downside is that I am now not as open as I used to be with some user groups, after my off-the-record comments were openly used against the council during the investigation. I was probably naive in expecting that an ombudsman investigation would correct our serious lack of funding or support from middle management; all the maladministration verdict did was increase paperwork and bureaucracy. We may now have excellent administration, but it has taken away time and money from improving things on the ground. From my experience, if a local authority wants to do something, it will find a way to do it. If it doesn't want to, I really don't believe the ombudsman will make it change its mind – though it will probably make the council develop a more sophisticated defence.
The Institute of Public Rights of Way and Access Mamagement (IPROW) provides confidential advice to members needing help during ombudsman investigations.
