Service failure

Definition

Subsections 26(1)(b) and (c) of the 2007 Act gave the Ombudsmen additional powers, allowing them to consider not just complaints of maladministration, but also:

1. alleged or apparent maladministration in connection with the exercise of the authority’s administrative functions;
2. an alleged or apparent failure in a service which it was the authority’s function to provide;
3. an alleged or apparent failure to provide such a service.

Service failure is:

• a ‘failure in a service’ – where a service is provided but has fallen down on one or more occasions); or
• a ‘failure to provide a service’ – where there has been a failure to provide a service at all.

Maladministration is not a necessary ingredient of the definition of ‘service failure’ in the Act.

Decision reasons and recording

The new service failure provisions mean that there will be four alternatives in cases where there is a finding for the complainant:

1. maladministration only (not all instances of maladministration will involve a service failure);
2. maladministration and service failure – the same facts may establish both;
3. failure in a service only (without maladministration being present or established);
4. failure to provide a service only (without maladministration being present or established).

Service failure/maladministration will be recorded separately for internal statistical purposes but shown as a single category on decision letters and in our published statistics.

Approach

Where investigations of a ‘failure in a service’ or of a ‘failure to provide a service’ readily disclose maladministration, no special issues arise.

But in some cases where a service failure can be easily identified, there will be no maladministration; or it may be problematic to identify the maladministration; or to make a causal link between maladministration and the service failure. In such cases, it may be possible to reach a decision without investigating the issue of maladministration. Before pursuing a case in this way, the Ombudsman must be consulted.

If the outcome is to pursue an investigation on this basis, it is important to remember that Section 34(3) continues to provide that the Ombudsman may not question the merits of a discretionary decision taken without maladministration. That means that discretionary decisions properly taken by an authority about (a) whether to provide a service that is not statutorily required (eg not to provide a swimming pool in the council’s area) and (b) how to provide a service (eg how regular a bin collection is or whether waste is to be collected in a wheelie bin or plastic sack) are outside jurisdiction.

The advantage of this approach is that an investigation is likely to take less time and the identification of a service failure could lead to a quick remedy for the complainant. In such cases, it may be possible to reach a decision without investigating the issue of maladministration (a ‘simple service failure’ complaint).

But the disadvantage is that the cause of the failure and any potential maladministration will not be uncovered and no recommendation can be made for a change or improvements and the failure may continue. So the Ombudsmen will wish to monitor simple service failure complaints and should be consulted when it appears to be likely or possible.

Note: Service failure complaints and particularly a failure to provide a service may be OJ under s26(7) – ‘all or most’.

Example

For example, complaints made by twenty residents of recently built houses in a new road complain that the council made no refuse collections for two months. The service has now commenced but the complainants say they had to make their own arrangements during this period. There could be a ‘service failure only’ finding and a remedy for the injustice, as whatever went wrong has been put right.

Page last updated: March 2010

Date Updated: 18/03/10