Absolute bar - Part III
This looks at some of the specific provisions in more detail
The commencement or conduct of civil or criminal proceedings before a Court of Law [Schedule 5.1]
The action must be before a “Court of Law”:
- An application for possession to the Sheriff after a CPO has been made is not an application before a Court of Law.
- A tribunal is not a Court of Law.
- But Note: Applications dealt with by a single magistrate, for example certain warrants for entry that environmental health officers seek are before a court of law (s148 Magistrates’ Court Act 1980 and s 5 and schedule 1 Interpretation Act 1978). This will always be the case unless the Act giving the Magistrates the power to act states otherwise.
These matters are OUT
- The issue of the writ/summons in the civil court or the laying of an information in the Magistrates’ Court because this is “commencement”.
- Action by court bailiffs (unless they are acting as agents of the authority – see below).
- Reports written by social workers for care proceedings and evidence given by council officers in any proceedings.
These matters are IN
- The process leading up to and the council’s decision not to commence proceedings.
- The process leading up to and the council’s decision to commence proceedings and all actions or inactions before the issue of the writ/summons/laying of information.
- The council’s failure to prosecute or consider a prosecution. (Example: for non-compliance with an enforcement notice or breach of an abatement order.)
- Delay in bringing a prosecution. (Example: under trading standards legislation until the matter was time-barred.)
- Bailiffs acting as agents for the council. (Example: to distrain for rent arrears or council tax.)
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Action taken by any police authority in connection with the investigation or prevention of crime [Schedule 5.2]
See section on Police authorities in Is the authority within jurisdiction? and section on investigation or prevention of crime in Part I.
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Contractual or other commercial transactions [Schedule 5.3]
“Transactions” is wide and is not restricted to just buying and selling.
The public passenger transport does not have to belong to the authority complained against. So the way a council dealt with a bus company’s suggestion for a change of route, (ie it did not consult the residents) would be outside jurisdiction. But if the complaint is, for example, about the way the council dealt with a planning application for a new bus garage, the complaint is about the exercise of planning powers and is within jurisdiction. So, too, may a complaint about the placing of bus stops and bus shelters where these decisions have been taken by the council if the decisions were not part of a contract. Action taken by or on behalf of the London Transport Users Committee in operating a procedure for examining complaints or reviewing decisions is explicitly within jurisdiction (paragraph 3(3)).
Provision of entertainment relates to theatres, concert halls etc where the provision is made by the council. It does not apply to sports activities or to the council’s action in respect of the hiring of halls, meeting rooms etc.
The markets and fairs listed here are likely to be within the Ombudsman’s jurisdiction. But see the general advice in Part I should there be uncertainty.
- According to case law, a market is a gathering of buyers and sellers at regular intervals in a fixed place. Markets are sometimes authorised by local Acts or a Royal Charter to be held in a specific place. It may be necessary to find out the status of the market from the authority before coming to a decision whether the complaint is within jurisdiction.
- Street trading licences are issued under the Local Government (Miscellaneous Provisions) Act 1982. The licence may be subject to specific conditions relating to the particular trade in question and general conditions which flow from a council’s general policy on street trading.
- Temporary markets. They may be authorised by the Local Government (Miscellaneous Provisions) Act 1982 s37. The Act relates to district and London borough councils. The person intending to hold a temporary market and the owner of the land has to give one month’s notice to the council for it to be authorised. This provision only applies where the council have resolved that this section of the Act will apply and give notice of it in the local newspaper.
- A car boot sale is a market (Newcastle v Noble (1990) 89 LGR 618).
- A complaint by a market trader about the way a council decided to increase the number of stalls or the trades allowed is not a complaint about a market, but it is a complaint “relating to the grant ... of a licence” and is, therefore IN.
- Street trading not in a market is IN. The public may refer to street trading as a market. This is not always the case and status of ‘market’ should be checked.
- Fairs are often just another name given for a market although, according to case law, a fair is unlikely to be held as often as a market. The business of buying and selling is common to both markets and fairs. Again fairs may be authorised by local Acts or a Royal Charter.
- Pleasure fairs (circuses, merry-go-rounds, coconut shies and hooplas) may be authorised by local authority bye-laws made under the Public Health Act 1961 s75.
Transactions for or relating to the acquisition or disposal of land
- There is a wide scope of what can be looked at under acquisition and disposal of land.
- Land includes buildings even if used for entertainment, markets etc.
- Disposal of land is governed by s123 of the Local Government Act 1972. This permits local authorities to dispose of land “in any manner they wish”. Therefore transactions relating to disposal of land should be interpreted widely and as well as an option and a sale of land, leases/tenancies, easements, mortgages and licences would be IN. So, too is a licence to assign a lease on the basis that it is a transaction relating to a lease.Acquisition of land should also be interpreted widely.
- A DETR Circular (“The Local Government Act 1972 General Disposal Consents (1998)”) gives consent to particular disposals of land for less than the best consideration that can be reasonably obtained. Reference should be made to these consents when considering complaints about disposals of land. The consents authorised by the Circular can be found at paragraph 6 - 602 in the Local Government Law Encyclopaedias.
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Personnel matters [Schedule 5.4]
(a) To be excluded by this provision, the action must be in respect of the specific type of personnel matter mentioned in paragraph 4 of schedule 5, ie appointments, removals, pay, discipline and superannuation or some similar personnel matter.
(b) This will include administrative faults, eg delay in connection with such matters (as is so with other schedule 5 exclusions).
(c) Allegations from a caretaker about failure to repair a tied flat are within jurisdiction as it is considered to be a complaint mainly about housing.
(d) The personnel connection must be with the authority, eg the actions of a social worker who helps a complainant at an employment tribunal in a case against the complainant’s employer is not excluded from jurisdiction.
(e) Appointments made by a council to governing bodies of schools and colleges are not personnel appointments and complaints about them are therefore IN.
(f) Note. A complaint about the behaviour of a council officer is IN. It is not a personnel issue as such even though the council may take disciplinary proceedings. (Those proceedings would be OUT.) There may be grounds in some cases to suspend consideration of the complaint to allow another procedure (police investigation, disciplinary action etc) to happen.
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Education matters [Schedule 5.5]
These specific exclusions are:
- the giving of instruction, whether secular or religious, or
- conduct, curriculum, internal organisation, management or discipline, (except so far as relating to special educational needs) whether in any school or other educational establishment maintained by the authority.
Action taken by the education department may be within jurisdiction if it does not concern these exclusions, or it relates to the exercise of a separate statutory function.
- The way that schools and other educational establishments are run will be set out in the Instrument and Articles of Government. The broad effect of the exclusions in this paragraph is to rule out investigation of complaints about how and what pupils and students are taught and about the rules and conduct of the institution including the imposition of sanctions such as exclusion.
- The actions of a council dealing with a complaint about these excluded matters may be within jurisdiction. An example would be if parents complained to a school about bullying of their child and, if dissatisfied, then complained to the council. The Malone case is relevant and investigators should consult their Ombudsman for advice in specific cases.
Note
- Headteachers of council schools are officers of the authority but usually their actions will be outside jurisdiction by virtue of these exclusions. But there may be some circumstances when the head teacher’s actions will fall within jurisdiction because they perform some administrative function of the authority, which is not excluded by the schedule. Example: when they play some specific part in discharge of the LEA’s responsibilities for admissions or the admission appeal process (and the position is the same in that respect for heads of foundation or voluntary aided schools. The position may be the same in the case of appeals relating to exclusions, although schedule 5.5 “any action concerning . . . discipline . . .” is usually likely to rule this out. (Maladministration by teachers off the premises may well be in jurisdiction if it is in the exercise of the council’s administrative functions eg a complaint about a school trip). Where an Ombudsman is likely to be critical of the actions of the headteacher in such circumstances the draft report should be circulated to other Ombudsmen for their views before publication.
- Complaints about “statementing” (ie the process where the council consider children with special educational needs under the Education Act 1996) may be within jurisdiction, depending upon the nature of the complaint. There are three vital tests which need to be applied to any action or lack of action in order to determine whether it is within jurisdiction. Failing any one test puts the action outside jurisdiction. The tests are:
(i) that the action concerns the administrative functions of the council;
(ii) that the action is taken by or on behalf of the council; and
(iii) that the action is not excluded by this schedule or any other exclusion.
Staff should refer to the practice note on Special Educational Needs on the intranet.
Note: (Special Educational Needs Tribunal and rights of appeal to it are summarised in the section on alternative remedies.)
- Education appeal panels are within jurisdiction (for admissions AND exclusions).
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Date Updated: 02/09/11