Policing by consent

Derek Bedlow speaks with the Local Government and Social Care Ombudsman, Michael King, about his plans to improve communication with councils and the role of lawyers in ensuring the complaints process can improve local authority governance.

Michael King took over as the Local Government and Social Care Ombudsman in January last year, preceded by 12 years as deputy LGO. He started the role at an interesting time for local government and his is unlikely to be a quiet tenure in office against a backdrop of falling local authority resources and rising demand.

His thirteen years with the LGO means that he has had plenty of time to see trends come and go. While the overall number of complaints and enquiries received by the Ombudsman has remained fairly stable (it was 19,000 in 2016-17), the uphold rate has risen sharply, from 46% to 54% in three years.

Adult social care, education and children’s services complaints are forming an ever-greater proportion of the Ombudsman’s caseload, while matters such as planning complaints have dropped quite substantially, from nearly a third to just 13% last year. The clearest trend, however, is in the nature – and causes - of the complaints received by the Ombudsman, which have become increasingly complicated over time.

“Local government has become pretty good at dealing with complaints at first instance, so the complaints that come through to us are increasingly complex, especially in relation to adult social care and children’s complaints which are becoming a greater proportion of our case load as each year passes,” King says.

Almost all local authorities have had to make cuts to important services, but some have gone about it in a way that is more likely to attract complaints than others.

A common source of problems, King says, is where authorities have developed overly general policies in response to budget cuts, which can lead to problems over eligibility for key services. King points to the number of successful school transport complaints as evidence of the issue.

“The problem arises when blanket policies are applied that reduce the discretion of the authority to decide on eligibility or overlook the needs of people at the margins of their service delivery. So, an authority may introduce a policy around the provision of school transport which is perfectly lawful on one level, but fails to appreciate the needs of pupils with special educational needs.”

The complexity of complaints is also driven by the growing complexity of service delivery arrangements, from outsourcing and shared services to STPs and combined authorities. These developments, King says, underline the need for the proper accountability and governance of service provision - and this is where local authority lawyers have an important role to play.

“The complexity of delivery models from most local authorities is mind-boggling for the public, he says. “There is a huge level of challenge about how you build in proper accountability and proper governance models into these arrangements in a way that the staff, members and the public can understand. When things go wrong, who's responsible, who's accountable, and who's got the power to put things right?

“There's a huge opportunity and a huge role for monitoring officers and for local government lawyers to make sure that, when their new constitutions are established, when their new arrangements are set up, that the proper accountability and proper governance models are put in place.

“Because that's not the sexy part of transformation, sometimes that's pushed to the side. We’re hugely supportive of the lawyers trying to assert proper governance models over these new developments. I'm absolutely not trying to stand in the way of creativity in service provision, but it will come back to haunt us all if we don't have proper governance in those new arrangements. You can outsource the contracts but you can’t outsource the responsibility.”

King also sees some potential issues arising from the commercialisation agenda, not least the potential conflict of interests that may arise if an authority is fulfilling its duties as a public body and as a ‘commercial’ provider of services at the same time.

“Sometimes the overlap between the modes of operation can lead to problems,” he says. “We’ve seen that in a number of complaints around the provision of social care, where one part of the authority is behaving in a traditional paternalist way while another is saying that this is a commercial arrangement and that the rules of contract apply.”

From a complaints perspective, authorities also need to be aware of the change in relationships that the introduction of charges for previously free-of-charge services can create, especially if the nature of the service subsequently changes too.

“The public feel that they've got straightforward service contracts and don't accept [unilateral changes],” King says. “The public's expectations are very, very different if they're paying for the service. There are some new realities around commercialisation which some authorities deal with a lot better than others.”

Pushing the boundaries
The commercialisation agenda is also taking many local authorities beyond just charging for previously existing services and into new areas of commercial activity, fuelled by the need for more revenue. The question this raises for the Ombudsman is whether its jurisdiction should follow local authority activity that goes beyond the traditional boundaries.

In theory, King says, the answer is yes but in practice the his office is unlikely to be spending too much on dealing with complaints about the service at a council-run golf club. “In the past, the key question we asked ourselves is, is this an administrative duty of the local authority? If it is, we'll look at it. If it's not an administrative duty, we won't.

“But I think that concept Is probably redundant these days. I mean, local authorities have now got a general power of competence, and potentially everything is, if not a duty, a function of the local authority. So potentially we could look at absolutely anything a local authority does, but I think that where we draw the line is where a local authority is involved in something which is well outside their normal role as a public body, we would probably exercise discretion not to investigate complaints.

“So while we would always be looking pretty carefully at some of the more novel commercial enterprises that local authorities are engaged in, I think we would exercise common sense discretion about taking complaints about activities that the local authority just happens to own and run as a commercial operation.”

The Ombudsman created a ‘triage’ function at the start of the decade following a 37% cut in its resources imposed by the coalition government. This considers complaints against two criteria -  does the Ombudsman have the legal standing to investigate the complaint and does it fall it fall within the discretion of Ombudsman?

The criteria applied to this process are outlined in its Assessment Code (www.lgo.org.uk/information-centre/staff-guidance/assessment-code) the introduction of which, King says, has resulted in cases being accepted or rejected for investigation much more quickly than in the past.

Amongst the tests in the Assessment Code is to ask whether an alternative legal remedy is available to the complainant. However, exceptions are often made even where the option of judicial review is potentially open to a complainant.

“In practical terms, it’s not reasonable to expect a member of the public to judicially review the local authority every time they have a problem,” King says. “There was a landmark case in 2003 in which the judge asked the claimant in a judicial review why he hadn’t made a complaint to the Ombudsman before bringing JR proceedings.

That’s the key case for us in considering whether to take on a complaint that could go to JR, although there are quite a few scenarios where we would say that JR would be more appropriate, such as community-based actions, and will decline to accept a complaint.”

Transparency
King says that the Assessment Code is just one part of a wider effort to be more transparent about the whole process of adjudicating on complaints. For a number of reasons, local authorities sometimes struggle to understand the role of the LGO and its approach to investigations. Firstly, although many members of its staff are qualified lawyers, the Local Government and Social Care Ombudsman is essentially a ‘lay’ system of justice, part of the “culture” of Magistrates Courts or juries, King says. Moreover, it works on an inquisitorial basis rather than the adversarial system which lawyers are more used to.

“This is quite unusual in the British justice system and I think people sometimes struggle to understand that,” he says. “Obviously, we're completely independent of both the local authority, but also of the complainants. Sometimes complainants think we should be an advocate on their behalf, which we're absolutely not.

“So we are an independent, impartial body who are conducting an inquisitorial, investigative process into the issue and then making the judgment on it. There are very few parts of the English justice system that operate on that basis and it’s something that’s much more of a continental model.

“Sometimes we talk to local government lawyers who are used to an adversarial justice system who find this is a bit of a strange beast to deal with. But in terms of our process, we try to keep it as straightforward and accessible as possible and try to remove as much burden as we can from both the complainants and the local authorities.

“We've got the powers of the High Court in making investigations, which we use where appropriate, but, actually, we try to do conduct most of the process through consent and cooperation with both parties. For example, in every case where we're making a decision, we'll do a draft decision and that goes to both parties at the same time. Both parties see what we're minded to decide and that's the key opportunity for both the council and complainant to challenge our thinking. I think that's a fundamental part of the process, which again is quite unlike a court process. It’s really important to us to make sure that we're being even-handed and fair.”

In order to demystify the process, King points out that the LGO is the most transparent ombudsman scheme in the country, publishing all of its decisions on its website (around 12,000 a year) as well as making its investigation and assessment manuals and remedy guidance publicly available. “We publish those, in part, to make sure our service is accountable,” he says.

Compulsory compliance?
The system works, King adds, because the vast majority of local authorities recognise that the process is fair, even if they do not always agree with all of the outcomes. The alternatives, he suggests, are generally far worse and/or expensive so there is a reasonable consensus amongst councils that the system should be supported.

It is the maintenance of this ‘policing by consent’ approach that makes King opposed to any attempts to make enforcement of the Ombudsman’s decisions mandatory.

“We have very high levels of compliance with our decisions and I passionately believe that our decisions shouldn't be binding. Governments in the past have offered us the opportunity to have binding remedies and we've argued against that because fundamentally, I shouldn't be substituting my view for that of elected members. At the very end of this process, it has to be subservient to local democracy and I think that's a really, really important part of how it works.

“Having said that, there's sometimes some confusion about just how much latitude local authorities have to challenge our decisions. The case law says that a local authority does not have locus to challenge our findings, the decision-making process or the remedy we recommend other than through judicial review. The courts have made it pretty clear in most cases that they're not going to interfere with our discretionary decision making unless there's a public law reason why that's flawed.

“So, if a council disagrees with a decision, the only area of real latitude the local authority has outside of judicial review is to make a decision not to implement our recommendations.

“The reason that our decisions aren’t binding is because there is a latitude for a local authority to take into account matters that the Ombudsman couldn't possibly have considered. So, for example, if a remedy is going to cost a small district council several million pounds, which would have a detrimental effect on wider public service provision, they may take the view that implementing the decision would lead to worse injustice than the one that the complainant is trying to get us to remedy.

“I think that's a right and proper decision that should rest with members. Where they feel that would be a wider, detrimental effect from our decisions, which we couldn't possibly have taken into account. But the circumstances in which they can make that decision and the criteria in which they can make it is actually very narrow.

“There's insufficient understanding of just how small and exceptional that situation is. And I'd say there is an important role for monitoring officers to advise members to make sure that they are properly advised not to go beyond their remit and acting unlawfully.”

Reporting lines
Another important role for monitoring officers, King says, is to issue a s5 report (under the Local Government and Housing Act 1989) for members when the Ombudsman has found or is investigating maladministration. In other respects, the use of s5 reports for in other contexts is regarded by some monitoring officers as the nuclear option, but King says that this has meant its use for cases of maladministration has become limited.

King has recently pointed this duty out in his annual letter to local authority chief executives and he is keen that monitoring officers are also aware of their duties in this regard, which he says can have a very beneficial affect on an authority’s governance.

“What the Act says is that where it appears that the authority has acted, or is likely to act, in a manner that constitutes maladministration or service failure and where the Ombudsman is conducting an investigation, it should be reported to members. That's not an extreme act or unusual act, that's a duty which would be triggered in most authorities several times a year following day-to-day findings that our office would make.

“It's not necessarily just huge systems failure - it can be day to day failings in service provision where individual people are affected so that duty is triggered very frequently in most authorities. But I don't think that some monitoring officers think that they have this duty to report this to members. I don't expect the monitoring officers to run to members with a s5 report every time there's been a misaddressed letter that we criticised the council for.”

In practice, rather than issuing a s5 report on each occasion, King suggests that monitoring officers could produce a periodical composite report for members, whether that be on a quarterly, six monthly or annual basis. Additionally, he would also like to see monitoring officers establish some form of warning system from other people in the authority, such as heads of service and the complaints team, so that members would be informed about more potentially serious cases of maladministration and to provide an early warning for the MO if any part of the council was minded to reject a report.    

“The s5 duty doesn't have to feel like an onerous task, nor does it have to feel like a nuclear option,” King says. “I think it's quite a flexible instrument which the monitoring officer can use intelligently to make sure that he or she can head off problems with difficult complaints. It can also bring learning to the attention of members in a more constructive and positive way, whilst making sure that he or she has fulfilled the duty to report.”

A critical friend
The relationship between the Ombudsman and local authorities has not always been a harmonious one, but King insists that the ultimate purpose of his organisation is to help local authorities to provide better services rather than simply to censure them.

“Clearly we kind of have a dual relationship with the authorities. On the one hand, we are sometimes in a position where we are standing up in public being critical and that won't stop. It's essential that we do that to fulfil our remit. The other part of the role is about effectively working alongside local government as a critical friend, to say, we've got a whole bunch of data and a whole bunch of learning here where we can help you both improve your complaint handling, but also help you improve some service areas. Last year we made about 4,000 recommendations to put things right and I want to put more and more emphasis on those service improvement recommendations that we made.”

To this end, the Ombudsman has been producing regular thematic analyses of complaints received and the decisions it makes to help local authorities avoid making the same mistakes. It is also working to improve the quality of feedback to local authorities when complaints are made, creating more sophisticated suites of data and information to help local authorities with managing their services and providing more training on complaint handling to local authorities.

“That's really important to me,” Kings says. “If all we ever do is handle individual complaints and put individual complaints right, then effectively we are only doing half our job, and there's a question whether that's good value for money. The key thing for me is that we are seen to be adding value to service improvement in local government.

“It's very interesting that when I talk to people at the DCLG, Local Government Association or Solace, I find that a lot of the issues that we're dealing with when we see the context for our complaints are absolutely the things that are on their agenda too. So there is a clear triangulation between the evidence and the experience we see through complaints, and the other kind of issues which are on local government agenda. The value of investigation of complaints is a part of the evidence base for local authority's decision making and perpetual improvement.”

Finally, another aim of King’s term of office is to improve the relationship between his office and local authorities. This will see positive commentary from the Ombudsman highlighting local authorities who it feels are good at complaint handling or who have a constructive approach for dealing with a complaint, or who have invested in training.

In addition, the Ombudsman has already started to include positive comments about local authorities’ complaints handling in his annual letters to chief executives. “I think it's really important that we have the courage to praise local authorities as well as criticise them,” King says. “I want to emphasise, as that Yellow Pages advert used to say, we're not just here for the bad things in life. I want to try and, where we can, emphasise the positives as well.”

Derek Bedlow is the publisher of Local Government Lawyer.

This article was first published in the February edition of Local Government Lawyer Insight, which can be accessed at http://www.localgovernmentlawyer.co.uk/insight Insight is published four times a year and is circulated free-of-charge to all Local Government Lawyer newsletter subscribers (click here to subscribe) in electronic format. A single hard copy is also circulated to all local authority legal departments in England and Wales. Additional printed copies are available for just £49.95 for four issues. Multiple copies are also available at £149.95 for five or £249.95 for 10. Payment can be made by purchase order/invoice or by credit/debit card. To order, please call 0207 239 4917 or email This email address is being protected from spambots. You need JavaScript enabled to view it..