What actions are we able to investigate?
Section 26(1) lists the actions that may be investigated. There must be an allegation of maladministration or service failure.
See separate section on service failure.
What are administrative functions?
All functions that are not exclusively judicial or legislative are administrative. Council’s only legislative functions appear to be the making of bye-laws; and complaints about how they are made would be outside jurisdiction.
- It is clear from R v Local Commissioner for Administration ex parte Bradford Metropolitan City Council (1979) that administrative action includes the making of decisions – “a faulty decision may amount to maladministration”.
- The action must be taken in the exercise of the functions of the council (which includes action by members, officers and committees of the council or on behalf of the council under Section 25(7)).
Some functions of officers are not administrative functions of the council, for example:
- Returning Officers for local elections. They are appointed by the council and for parliamentary elections they are the mayor or chairman, although they appoint “acting returning officers”. They carry out specified functions under Act of Parliament in a personal capacity, not on behalf of the council.
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But most other actions of officers are actions taken in the exercise of the administrative functions of the council. Note, however, that:
- Superintendent Registrars deal with registration of births, deaths and marriages. Since 2007 they have been employees of the council. Although Superintendent Registrars carry out some functions that are personal to them, they are only exercising those powers by virtue of their employment by the council. Therefore the actions of superintendent registrars are within jurisdiction.
- Generally, complaints about maladministration by the Registration Officer (who is responsible for the compilation of the Register of Electors) will be caught by s 26(6)(c) as there are rights of appeal to the County Court about the decisions of the Registration Officers. The rights of appeal relate to registration applications or objections and applications for postal or proxy voting – s 56 Representation of the People Act 1983. Appeals must be lodged within 14 days of the decision with prior notice of appeal to the Registration Officer – Representation of the People (England and Wales) Regulations 2001, Regulation 58.
- It was held in the judicial review case of R v City of Wakefield ex parte Robertson 2001 that an electoral registration officer who sells the register to commercial concerns is processing personal data within the meaning of the Data Protection Act. Therefore electors who do not wish the registration officer to sell their data to commercial concerns who are likely to use it for direct marketing have a right to object in writing to such sale under s11(1) and can complain to the court for failure to comply with that request under s11(2) of the Data Protection Act 1998. It was also held in that case that the sale of the electoral register to commercial concerns without giving individual electors a right to object to their own inclusion on the version of the register that is sold is a breach of their right to respect for their private and family life, home and correspondence, under ECHR Article 8, and the sale of a register without an individual right of objection is also a breach of Article 3 of the First Protocol of the ECHR (which secures the right to free elections).
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- Approved Social Workers (ASWs) are appointed by social services authorities under the Mental Health Act 1983 for the purposes of discharging the ASWs functions under the Act (s114). S114(2) provides that no person shall be appointed as an ASW unless he is approved by the authority as having the appropriate competence in dealing with persons who are suffering from mental disorder. S13(4) of the Act places a duty on the authority to direct an approved social worker, if required by the nearest relative, “to take the patient’s case into consideration”. Taken together, these administrative functions are sufficient to put a complaint about the way an ASW carried out his/her actions within jurisdiction.
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- Community health physicians and speech therapists are usually officers of a health authority. Community health physicians often act for the council in the housing allocation process, although some councils have their own medical staff. Likewise speech therapists will often act on behalf of the council in making provision for a child’s special educational needs. S113(1A) of the Local Government Act 1972 provides that a council may enter into an agreement with a health authority or national health trust to place at the council’s disposal an officer of the health authority for the purposes of the council’s functions. Such an officer, when carrying out the council’s functions, is treated for our purposes as a council officer. But the absence of such an agreement does not necessarily mean that the action is not taken on behalf of the council.
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Actions of councillors
The actions of councillors are considered in the light of s25(4) of the 1974 Act. Where the member’s action takes place is not relevant to jurisdiction. It could be on council premises, in hired premises for a surgery, in the member’s home, in a constituent’s home or anywhere else. Councillors sometimes act on behalf of the council (including acting in a representative role) in carrying out administrative functions. But the mere declaration by a member that s/he is a councillor in any given situation, for example as a neighbour in connection with a dispute about use of land, does not automatically put the complaint in jurisdiction. The facts and circumstances of each case need to be considered. General and specific examples of complaints that are within jurisdiction include:
- in committee meetings, eg failure to declare an interest or providing misleading information
- acting as chair when a decision has been delegated to an officer in consultation with the chair
- acting as an executive member with decision-making powers or a member of the overview and scrutiny committee [Information on Local Government Act 2000 available to LGO staff on staff intranet]
- acting as a councillor in giving advice, information or assistance to a member of the public in relation to a council function
- speaking on behalf of the council, for example at a public meeting explaining proposals for a new road scheme [Note: There may be some limited circumstances where a councillor’s statements may legally bind the council. This is possible if the councillor made his/her statements in such a way that those present believed he/she was authorised to represent the council’s views (See KLF v Derbyshire (1984) The Times 21.1.85)]
- agreeing to pass on an objection to a planning application or undertaking to present a petition to committee but failing to do so
- giving wrong information to a constituent about when a particular matter is being considered by the council and the constituent misses the deadline for representations/objections.
Councillors' conduct
A complaint that a councillor’s conduct breached the council’s code of conduct is also within jurisdiction if the councillor is acting on behalf of the council in connection with an administrative function and the matter which is the subject of his/her action is within jurisdiction. Such complaints must be dealt with in accordance with the guidance on dealing with Standards for England available to LGO staff on the intranet.
- The code of conduct covers actions in an official capacity and to actions in any other circumstances. Examples of action which may be in breach of the code of conduct but not within jurisdiction are:
- action concerning a matter which is either excluded from jurisdiction (eg a personnel matter) or is not a council function (eg a constituent's management of his/her personal finances)
- action not taken in an official capacity that brings the member's office or authority into disrepute. Examples could be:
- drink driving when not on duty
- rudeness to a citizen in a local supermarket
- participation in an unseemly brawl in a pub
- A member’s action may be in breach of the code and in jurisdiction, but not one which we say in all the circumstances amounts to maladministration. In the usual way we need to consider all the circumstances of the case and the significance and severity of the inappropriate action.
- With regard to the release of information to councillors, the Information Commissioner has given written guidance (www.ico.gov.uk) (“Advice to local authorities on disclosing personal data to elected members”). This says that elected members play three roles: as a member of the council (for instance, a committee of the council); as ward representative; and as representative of a political party. Disclosure of personal data to enable an elected member to carry out duties the council member is generally acceptable, though the member should only be given as much information as is necessary for the performance of their duties. Disclosure of personal information relating to a particular resident of an elected member’s ward may also be acceptable, so long as it is clear that the member is acting on that resident’s behalf. In cases of doubt it would be prudent to seek the consent of the data subject. In general the Commissioner does not regard it as acceptable to disclose personal data to elected members for political purposes.
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Rent Officers
The appointment, remuneration and administration of Rent Officers is a function of the Secretary of State (see The Administration of Rent Officer Service (England) Order 1999 SI 2403).
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Contractors
or other authorities acting for the council in the exercise of the council’s administrative functions are acting “on behalf of” the council and are therefore within jurisdiction.
Many councils now contract out a wide variety of functions. These include housing benefit administration, refuse collection and housing management etc.
Where the whole or part of a council’s function has been contracted out investigators should consider:
- what is the action complained of?
- what is the statutory power or duty of the council?
- was the action taken on behalf of a council?
- have reasonable safeguards and controls been imposed and monitored by the council?
- was there maladministration?
- did it cause injustice?
There may be cases where the contracting-out arrangement involves functions which are not purely those of the council and it may be difficult to untangle the whole or part of the complaint as being action on behalf of the council. Where this appears to be the case, investigators should consult their AOs or the Deputy Ombudsmen.
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Community care services provision in a nursing home
Counsel has advised the Commission in connection with a complaint where a report was issued (staff see 97 A 04002) that a council which
- had assessed a complainant’s community care needs, and
- decided that those needs called for the provision of community care services, and
- further decided that it should make a contract with a nursing home to provide the services the complainant had been assessed as needing
was discharging its duty to provide those services through the contract. Accordingly, the nursing home was acting on behalf of the council.
In investigating complaints where a council exercises a function entirely or partly by means of an arrangement with another person, action taken by or on behalf of the other person in carrying out the arrangement shall be treated as action on behalf of the council (see s25(7) (a) and (b) LGA 1974).
In such cases the Ombudsmen expect a council to have proper systems in place to satisfy itself that the community care services it provides or arranges to provide are adequate.
Reference to other decided case law also demonstrates that:
- the use of ‘needs’ in s21 National Assistance Act 1948 makes it clear that the residential accommodation should be appropriate to the needs of the individual applicant
- once the need has been assessed the local authority are under a duty to provide suitable accommodation on a continuing basis, and
- a local authority cannot at that stage parade their lack of resources as an excuse for failing to make necessary provision.
The Ombudsman can, therefore, consider the arrangements put in place in a care home (in order to determine whether a council has met its obligation to ensure such arrangements continued to be sufficient).
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Bailiffs
Actions of council appointed bailiffs and those bailiffs who may be appointed and employed by the Court but act on behalf of the council when the council applies for the enforcement of a Court judgment are within jurisdiction. Bailiffs can seize goods for all kinds of debts, including unpaid taxes, rates, fines, child maintenance payments and rent. Their work is governed by common law and various statutory instruments. (The Certificated Bailiffs Association investigates complaints about its members under its disciplinary procedures. In 1998 it set up an independent complaints panel. A complaint about a bailiff who is not council appointed may be referred to the Association.)
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Employee and councillor appointments to outside bodies
In most cases where a council employee or councillor is appointed to an outside body they will be required to act in the interest of that body. In these cases their actions would not be on behalf of the council. However, where there is an appointment to an outside body and the employee or councillor is carrying out a function of the council and is required to act in the council’s interest, a complaint about the councillor’s or officer’s action may be within jurisdiction. Investigators should clarify the nature of the appointment before coming to a decision about whether the complaint can be accepted.
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Date Updated: 01/08/11