Local Government
Ombudsman Watch
Ombudsman Watch
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Judicial review
On 17 January 2005, the MP for Normanton, Mr Bill O’Brien, received
a written answer to his parliamentary question regarding the
number of Local Government Ombudsman decisions challenged at
judicial review over the previous 10 years. No figures were provided
for the period prior to 2001, but it seems that in the financial years
2001-2004, a total of 25 cases were referred to the High Court for
judicial review where there was disagreement with the findings of
the Local Government Ombudsman. Some of these would
presumably have been challenges by local authorities to findings of
maladministration, though others would have been cases brought by
citizens who felt they had not been treated fairly by the Local
Government Ombudsman.
Nick Raynsford, Minister of State for Local Government and the
Regions, stated in his reply that, of these 25 challenges at judicial
review, the judges upheld the Local Government Ombudsman’s
original decision in every single case.
The environmental and public law solicitor Richard Buxton has been
quoted as saying, ‘It is very, very rare to bring a successful
challenge against the ombudsman', and this statistic of a zero
percent success rate at judicial review from 2001-4 surely provides
evidence for his scepticism. Incidentally, Richard Buxton won a
judicial review case for a client in 2001, so either Mr Raynsford’s
statistics are not entirely accurate, or else this case was determined
before the financial year began in April. Nevertheless, Mr
Raynsford's general message about the hopelessness of judicial
review as a means of challenging an LGO decision is correct.
The Local Government Ombudsman’s office seems to be a law unto
itself in terms of the justice and rationality of its decisions. If a
complainant disagrees with the findings of the Local Government
Ombudsman, it is possible to write to the Deputy Ombudsman to ask
him to review the decision. The prospects of a satisfactory outcome
as a result of this are, however, bleak. They are hardly falling over
themselves to find their original decisions to be in error.
The only option then is to make an application to the High Court for
judicial review of the LGO’s decision. As the statistics provided to Bill
O’Brien demonstrate, judges are very reluctant indeed to find
against the LGO at judicial review, and the prospect of legal costs
amounting to tens of thousands of pounds for a procedure that is
very likely to result in failure, is not only very unattractive to those
few who can afford to lose this sum of money, but indeed is out of
the question for ordinary citizens who simply cannot consider these
kinds of costs.
The Local Government Ombudsman’s office is therefore not held
accountable for the justice, impartiality and rationality of its
decisions to the public. Incidentally, the public fund it to the tune of
£11,058,000 per year (2004/5), from which the fortunate
Commission Chairman receives £147,198 in salary. In fact, a
member of the LGO’s office told one of our correspondents that the
LGO is only accountable to the Queen. An institution that is not held
politically, socially or morally accountable is, of course, consequently
under no pressure to ensure that its approach is impartial and its
judgements fair. It can commit maladministration with impunity.
There is no ombudsman to whom the citizen can complain about the
Local Government Ombudsman's maladministration, and it would
seem that even those who are wealthy enough to challenge a
decision at judicial review have very poor prospects of achieving a
positive outcome, regardless of the merits of their case.
Richard Buxton has first-hand experience of taking an LGO’s
decision to judicial review, and his involvement in the case of Mr &
Mrs Turpin led to an impression that the LGO is far too willing to
listen to the council’s defence, and far too unwilling to listen to the
complainant’s arguments. He regards the LGO as existing to protect
councils rather than to serve the interests of the wider public who
have a legitimate grievance, and feels that, when the LGO makes a
decision, he also seems far too concerned about defending his
decision instead of considering relevant counterarguments and
evidence in the service of a fair and objective outcome. A further
difficulty concerning judicial review that Mr Buxton has identified is
that ombudsman cases involve a judicial review of a decision about a
decision.
The Local Government Ombudsmen would have politicians believe
that those citizens who accuse his office of bias and unfairness
simply misunderstand the powers of the ombudsman, and
mistakenly think that he can challenge councils' policies because
some constituents do not agree with them. However, Mr Buxton is a
specialist lawyer, and he has a better understanding than most of
the powers and responsibilities of the LGO. So many other citizens,
who are not specialist lawyers, have also arrived at the same
conclusions about the pro-council bias of the LGO's office. The LGO's
attempt to discredit the overwhelming evidence against his office by
means of misrepresentation is entirely disingenuous.
In the case of Mr and Mrs Turpin, who had concerns about the way
a planning decision had been taken, the LGO was approached, but
he declined to investigate. The Turpins challenged the LGO’s decision
at judicial review, which they lost, and they ended up with costs
awarded against them. Mr Buxton’s clients then went to the Court of
Appeal, which forced the LGO to reconsider its decision even though
it did not reach a decision itself. The LGO then reconsidered his
decision but in an unlawful way, and the Turpins took this decision to
judicial review. This time they won the judicial review. The problem
is that, at judicial review, the judge can only instruct the LGO to
review his decision, and cannot impose any new decision on him.
Despite the Turpins’ finally winning at judicial review, the LGO then
re-took his decision in a way that resulted in a decision that could not
be taken again to judicial review.
As a result of the whole process, despite the Turpins’ rare success at
judicial review, they were still no better off; a very large sum of
money had been spent on legal expenses, including the LGO’s own
costs that were, of course, ultimately met by the taxpayer.
The current absence of any fair, accessible and credible means of
challenging an LGO’s decision is extremely unsatisfactory. Given that
most senior staff working for the Commission previously worked in
local government, as did a number of their Investigators, (a figure
the LGO has so far refused to determine and disclose,) and given
that a member of the Local Government Association sat on the three-
person panel that appointed the last LGO, there certainly needs to
be a fairer and more effective mechanism for ensuring that the
taxpayer is not condemned to continue funding an institution that
works to the advantage of those carrying out bad practice in local
government, and to the disadvantage of the citizen who is a victim
of this bad practice.
Surely £11 million of taxpayers’ money would be much better spent
if put towards funding schools, hospitals or pensions, than being
wasted on propping up a morally bankrupt and unaccountable
institution that is committed to defending bad councils from the
criticism, exposure and sanction they deserve.
On 17 January 2005, the MP for Normanton, Mr Bill O’Brien, received
a written answer to his parliamentary question regarding the
number of Local Government Ombudsman decisions challenged at
judicial review over the previous 10 years. No figures were provided
for the period prior to 2001, but it seems that in the financial years
2001-2004, a total of 25 cases were referred to the High Court for
judicial review where there was disagreement with the findings of
the Local Government Ombudsman. Some of these would
presumably have been challenges by local authorities to findings of
maladministration, though others would have been cases brought by
citizens who felt they had not been treated fairly by the Local
Government Ombudsman.
Nick Raynsford, Minister of State for Local Government and the
Regions, stated in his reply that, of these 25 challenges at judicial
review, the judges upheld the Local Government Ombudsman’s
original decision in every single case.
The environmental and public law solicitor Richard Buxton has been
quoted as saying, ‘It is very, very rare to bring a successful
challenge against the ombudsman', and this statistic of a zero
percent success rate at judicial review from 2001-4 surely provides
evidence for his scepticism. Incidentally, Richard Buxton won a
judicial review case for a client in 2001, so either Mr Raynsford’s
statistics are not entirely accurate, or else this case was determined
before the financial year began in April. Nevertheless, Mr
Raynsford's general message about the hopelessness of judicial
review as a means of challenging an LGO decision is correct.
The Local Government Ombudsman’s office seems to be a law unto
itself in terms of the justice and rationality of its decisions. If a
complainant disagrees with the findings of the Local Government
Ombudsman, it is possible to write to the Deputy Ombudsman to ask
him to review the decision. The prospects of a satisfactory outcome
as a result of this are, however, bleak. They are hardly falling over
themselves to find their original decisions to be in error.
The only option then is to make an application to the High Court for
judicial review of the LGO’s decision. As the statistics provided to Bill
O’Brien demonstrate, judges are very reluctant indeed to find
against the LGO at judicial review, and the prospect of legal costs
amounting to tens of thousands of pounds for a procedure that is
very likely to result in failure, is not only very unattractive to those
few who can afford to lose this sum of money, but indeed is out of
the question for ordinary citizens who simply cannot consider these
kinds of costs.
The Local Government Ombudsman’s office is therefore not held
accountable for the justice, impartiality and rationality of its
decisions to the public. Incidentally, the public fund it to the tune of
£11,058,000 per year (2004/5), from which the fortunate
Commission Chairman receives £147,198 in salary. In fact, a
member of the LGO’s office told one of our correspondents that the
LGO is only accountable to the Queen. An institution that is not held
politically, socially or morally accountable is, of course, consequently
under no pressure to ensure that its approach is impartial and its
judgements fair. It can commit maladministration with impunity.
There is no ombudsman to whom the citizen can complain about the
Local Government Ombudsman's maladministration, and it would
seem that even those who are wealthy enough to challenge a
decision at judicial review have very poor prospects of achieving a
positive outcome, regardless of the merits of their case.
Richard Buxton has first-hand experience of taking an LGO’s
decision to judicial review, and his involvement in the case of Mr &
Mrs Turpin led to an impression that the LGO is far too willing to
listen to the council’s defence, and far too unwilling to listen to the
complainant’s arguments. He regards the LGO as existing to protect
councils rather than to serve the interests of the wider public who
have a legitimate grievance, and feels that, when the LGO makes a
decision, he also seems far too concerned about defending his
decision instead of considering relevant counterarguments and
evidence in the service of a fair and objective outcome. A further
difficulty concerning judicial review that Mr Buxton has identified is
that ombudsman cases involve a judicial review of a decision about a
decision.
The Local Government Ombudsmen would have politicians believe
that those citizens who accuse his office of bias and unfairness
simply misunderstand the powers of the ombudsman, and
mistakenly think that he can challenge councils' policies because
some constituents do not agree with them. However, Mr Buxton is a
specialist lawyer, and he has a better understanding than most of
the powers and responsibilities of the LGO. So many other citizens,
who are not specialist lawyers, have also arrived at the same
conclusions about the pro-council bias of the LGO's office. The LGO's
attempt to discredit the overwhelming evidence against his office by
means of misrepresentation is entirely disingenuous.
In the case of Mr and Mrs Turpin, who had concerns about the way
a planning decision had been taken, the LGO was approached, but
he declined to investigate. The Turpins challenged the LGO’s decision
at judicial review, which they lost, and they ended up with costs
awarded against them. Mr Buxton’s clients then went to the Court of
Appeal, which forced the LGO to reconsider its decision even though
it did not reach a decision itself. The LGO then reconsidered his
decision but in an unlawful way, and the Turpins took this decision to
judicial review. This time they won the judicial review. The problem
is that, at judicial review, the judge can only instruct the LGO to
review his decision, and cannot impose any new decision on him.
Despite the Turpins’ finally winning at judicial review, the LGO then
re-took his decision in a way that resulted in a decision that could not
be taken again to judicial review.
As a result of the whole process, despite the Turpins’ rare success at
judicial review, they were still no better off; a very large sum of
money had been spent on legal expenses, including the LGO’s own
costs that were, of course, ultimately met by the taxpayer.
The current absence of any fair, accessible and credible means of
challenging an LGO’s decision is extremely unsatisfactory. Given that
most senior staff working for the Commission previously worked in
local government, as did a number of their Investigators, (a figure
the LGO has so far refused to determine and disclose,) and given
that a member of the Local Government Association sat on the three-
person panel that appointed the last LGO, there certainly needs to
be a fairer and more effective mechanism for ensuring that the
taxpayer is not condemned to continue funding an institution that
works to the advantage of those carrying out bad practice in local
government, and to the disadvantage of the citizen who is a victim
of this bad practice.
Surely £11 million of taxpayers’ money would be much better spent
if put towards funding schools, hospitals or pensions, than being
wasted on propping up a morally bankrupt and unaccountable
institution that is committed to defending bad councils from the
criticism, exposure and sanction they deserve.