Ex-leader of London borough fails in High Court challenge over naming in Ombudsman report

A former leader of the London Borough of Haringey has lost a judicial review challenge over a decision by the Local Government and Social Care Ombudsman to name him in a report.

The report was issued in January 2022 by the Ombudsman – as the Commissioner for Local Administration in England – following an investigation into a complaint made by a Mr X about the actions of the council in connection with the proposed acquisition and demolition of his property.

In 2020 the claimant, Joseph Ejiofor, in Ejiofor, R. (On the Application Of) v The Commissioner For Local Administration in England [2022] EWHC 3174 (Admin) was the Leader of Haringey.

The council had planned to re-develop a site which was occupied by council tenants and by two private houses, one owned by Mr X.

In June 2019 Haringey purchased the other private house for £2.15m. There were discussions with Mr X about a price, but in March 2020, Mr Ejiofor and other political representatives met with some of the council tenants.

After that meeting Mr Ejiofor, acting unilaterally, decided on the council's behalf that Mr X's house would not be bought. As Leader, he was entitled by the council's constitution to make the decision alone.

Following a complaint by Mr X, the defendant investigated and made a finding of maladministration in respect of this decision, in that there was a lack of proper scrutiny and analysis in the decision to abandon the scheme after public money had been spent on the purchase of the first house.

Section 30(3) Local Government Act 1974 provides:

"(3) Apart from identifying the authority or authorities concerned, the report shall not —

(a) mention the name of any person, or

(b) contain any particulars which, in the opinion of the Local Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report,

unless, after taking into account the public interest as well as the interests of the complainant (if any) and of other persons, the Local Commissioner considers it necessary to mention the name of that person or to include in the report any such particulars."

When supplying a draft report to the council on 7 October 2021, the Ombudsman said it had decided to name Cllr Ejiofor because it considered it was in the public interest to do so.

A covering letter to Haringey said the Ombudsman considered it particularly important that the claimant have the chance to comment because it was intended to name him.

Haringey forwarded the report to Mr Ejiofor, who was still a member of the council, the following day. It asked for a response by 26 October 2021.

The claimant said that he did not read the email. His explanation was that at this time, he was recovering from the impact on him of losing the leadership four months earlier. In his witness statement he expressed the hope that the Court would understand "why I did not turn my attention to an email of the provenance described, having a lack of apparent importance".

As a result of overlooking that email, Mr Ejiofor did not realise that he was named in the report until 19 January 2022, after it had been published.

The council wrote to the Ombudsman to object to the proposed naming of the Leader.

The Ombudsman’s Director of Investigations, considering the matter again, concluded: "… on balance, I think we should name the Leader. [the ombudsman] agreed this approach and the Council has not provided a substantive argument which would justify changing it. As you say, it would not take much of an internet search to work out who the Leader was, and it is in the public interest for us to be transparent in the circumstances. The Cllr has had an opportunity to comment on the draft report."

Counsel for Mr Ejiofor advanced five renewed grounds for judicial review. These were that:

1. Section 30(3) of the Local Government Act 1974 places different restrictions on two separate acts, i.e. naming a person and including particulars which are likely to identify a person, but the defendant Ombudsman wrongly conflated them.
2. The defendant failed to take the claimant's interests into account when deciding to name him.
3. The defendant failed to apply the correct test of whether naming was "necessary".
4. The decision to name the claimant was procedurally unfair because he was not given sufficient opportunity to comment on the proposal.
5. The decision was insufficiently reasoned.

Mr Justice Bourne, who heard the claim in the Administrative Court, said that Mr Ejiofor’s claim faced the particular difficulty that the report was published nearly one year ago. “The naming of the claimant cannot be reversed. If he is right, then at most this Court could declare that he should not have been named. It would now be surprising if a Court required the defendant to reconsider the decision to name the claimant.

“The practical usefulness of this claim, assuming it to have merit, is therefore distinctly limited.”

Counsel for Mr Ejiofor responded to that concern by emphasizing his submission that, on a proper construction of section 30, naming the claimant, over and above any specific criticism of his conduct in the report, indicated a particular level of personal censure against him. So, counsel submitted, an order quashing the decision to name him would help to restore his reputation.

However, Mr Justice Bourne said that, in his judgment, that construction of section 30 was not arguable. “The section does not focus on the position of a person criticised in a report. Instead, the restraint on identification applies to ‘any person’. Whilst that may often mean that a person criticised will have the benefit of anonymity, the apparent purpose of the section is not to create some calibrated scale of censure. Its clear purpose is to protect confidentiality generally – when it is appropriate to do so….”

The judge said that was demonstrated by the fact that section 30(3) enjoins the Ombudsman to take into account, among other things, "the interests of the complainant (if any) and of other persons", but makes no specific reference to the interests of any person facing criticism in the report.

“I accept that such a person can be included in the broad phrase ‘other persons’, but if the statutory purpose were or included a restraint on naming as a heightened form of criticism, it would be bizarre for the section not to direct specific regard to be had to the interests of such a person,” the judge said.

Mr Justice Bourne concluded that even if the Court were persuaded that the decision to include the claimant's name was unlawful, a quashing order “would serve little if any purpose, and it is hard to see any real point of declaratory relief”.

The judge meanwhile criticised the delay in bringing the claim. He said the claimant’s failure to read the email from the council had led “to the present situation in which a report has been published but, months later, he seeks an order declaring it to be unlawful”.

Mr Justice Bourne added: “This judgment is not intended to indicate a lack of understanding of why the claimant overlooked the email on 8 October 2021. But that does not change the consequence of that omission.

“Once the report was published, it may well already have been too late to limit its transmission in any way, and too late to persuade a Court to interfere with it. But on any view, a challenge to the lawfulness of the report would have had to be pursued with the utmost urgency. One would also have expected to see an application for interim relief, and the outcome of such an application might well have decided the overall fate of the claim.”

Instead, the claim was not issued until 8 April 2022, the judge said. “By reference to the date of the report (rather than its publication) which was 10 January 2022, this was right at the end of the 3 month long stop time limit. On any reasonable view, this claim, with its potential administrative consequences to which I have referred, was not issued promptly. Nor was it accompanied by any application for interim relief or expedition.”

Mr Justice Bourne said delay would therefore provide a powerful reason to refuse permission for the judicial review claim, subject only to any countervailing force of the substantive merits of the proposed claim.

Turning the grounds of challenge, the High Court judge dismissed them all as not arguable. In relation to Ground 1, the judge found that the Ombudsman’s decision did not conflate the questions of (1) publishing the claimant's name and (2) publishing the identifying fact that he was Leader of the Council at the relevant time.

“Publication of the latter was a given because the report obviously would not make sense without it. The defendant therefore was only considering whether to publish the claimant's name. In accordance with section 30, he decided that it was necessary to do so.”

As for Ground 2, the judge said what was at stake was not the identification of Mr Ejiofor as the person who took the controversial decision. “He already was identified as that person, and the defendant's staff noted that the matter had had press coverage. There could be no doubt that the person criticised in the report was him. All that was at stake was whether his name, which was already in the public domain, should also appear in the report. Therefore ground 2, like ground 1, depends on the proposition that a decision to name an individual in a report connotes or expresses an elevated degree of censure. Since that is not arguable, ground 2 must fail.”

Nor was there any prospect of the Court concluding that the claimant’s interests were not taken into account, Mr Justice Bourne said.

The judge said he did not see what weight Mr Ejiofor's interests could even arguably have carried. “Where officials happen to be mentioned in a report, the inclusion of their names may violate a right to confidentiality. That is why section 30(3) is there. But where a person is elected leader of a local authority and acts in that capacity, I fail to see how they have any general expectation of confidentiality in any scrutiny of their actions, and nothing has been identified which introduced such an expectation into these particular circumstances.”

On Ground 3, the judge rejected a submission that the Ombudsman failed to apply the statutory test of necessity.

Mr Justice Bourne said the more detailed reasons in a note made on 6 October 2021 showed that the defendant had in mind, and applied, a test of necessity. “None of the other evidence can show that this test was not applied. I also do not think it arguable that "necessary" has any special technical meaning in this context. Nor is it appropriate to comb through the wording used by the defendant or his staff in the hope of detecting a legal error. Instead, the defendant judged naming to be necessary. He gave reasons, to which there is now no irrationality challenge.”

In relation to the claim that Mr Ejiofor was given insufficient opportunity to comment, the judge said: “I do not know what contact details the defendant had for the claimant, and it might have been better to send the draft report to him directly.

“However, there is no prospect of the Court concluding that sending the draft report to the council with an express instruction to share it with a member of the council was not reasonable or not sufficient. I also have no reason to believe that the claimant would have taken more notice of an email from the defendant than he took of the email from the council.”

Mr Justice Bourne went on to dismiss Ground 5 (which claimed that insufficient reasons were given). “....It should not necessarily be assumed that the defendant was bound to give reasons for including a name in a report. Be that as it may, whilst the single line explanation in the report itself can be criticised for not using the word ‘necessary’, it was plainly sufficient in the circumstances because the rationale for the decision was very simple. The circumstances of this case meant that including the name of an individual, who could so easily be identified in any event, was in the public interest and therefore necessary.

“Even if I am wrong about the sufficiency of the passage in the report, the reasons given in the note made on 6 October 2021 were entirely sufficient and, as I have said, I do not consider that any subsequent document can be interpreted as changing them. So even if there was a technical deficiency in the report on this point, it has been rectified for all practical purposes, and any merit in this ground would not justify a grant of permission.”

For the reasons given in relation to the grounds of challenge, and also because the claim was not brought promptly, Mr Justice Bourne refused permission.

Responding to the ruling, Michael King, Local Government and Social Care Ombudsman, said: “Public scrutiny and accountability are essential ingredients for healthy and vibrant local democracy, which is why we are committed to open and transparent decision making. We therefore welcome this judgment and the court’s unequivocal backing for our approach.

“The system of local administrative justice operated by the Ombudsman must be seen to be effective, fearless, and impartial if it is to retain public trust. That is why we were the first Ombudsman in the UK to publish every decision we make. And whilst we are committed to protecting the anonymity of complainants and most council staff, we will not hesitate to identify senior leaders or third party contractors who work on behalf of the council, where we think it is necessary and in the public interest to do so.”

Cllr Ejiofor said: "This case flows from someone complaining that the council pulled out of buying his house for three times its actual value, after confirming it was no longer needed for development. 

"While I disagree strongly with the Ombudsman’s criticism of me for this, it is their decision to name me that I have challenged because this is where their discretion is narrowly prescribed by law."

He added: "The Ombudsman has been unwilling show a single other recent case in which they decided to name a Councillor, and I believe their decision to name me was disproportionate, unfair and unlawful. 

"I am disappointed with this judgement, and have filed an appeal which I hope will be considered expeditiously."