Service failure

1. Maladministration is not a necessary ingredient of ‘service failure’ in subsections 26(1)(b) and (c): an alleged or apparent failure in a service which it was the authority’s function to provide or an alleged or apparent failure to provide such a service.

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

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

3. Most investigations of a ‘failure in a service’ (ie where a service is provided but has fallen down on one or more occasions) or of a ‘failure to provide a service’ (ie where there has been a failure to provide a service at all) will readily disclose maladministration. Where this is the case, no special issues arise.

4. There will be some cases where a service failure can be easily identified, but there is no maladministration or it is not necessary to invest resources in linking this causally to maladministration eg complaints made by twenty residents of recently constructed houses in a new road that council made no refuse collections for a period of 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.

5. 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.

6. 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 service failure complaints and should be consulted when it appears to be likely or possible.

7. It must always be remembered that s34(3) (LGOs may not look at merits in absence of mal) will be engaged whenever the rights or wrongs (merits) of a decision form part of a determination in a service failure complaint. This 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 or plastic sack) are outside jurisdiction.

8. Service failure complaints and particularly a failure to provide a service may be outside jursidiction under s26(7) – “all or most”.

Tony Redmond
March 2008

Date Updated: 02/08/10