Origins of the UK Ombudsmen

1. In 1961, Justice published a report called The Citizen and the Administration: the Redress of Grievances (the Whyatt Report). The report distinguished between:

• complaints by a citizen about a decision affecting him or her which was alleged to be wrong on its merits; and
• complaints of maladministration.

  The Whyatt Report suggested the setting up of a "General Tribunal" to deal with miscellaneous appeals from discretionary decisions which were alleged to be wrong on merits. The report also recommended the establishment of an institution, along the lines of the Scandinavian Ombudsmen, to be called the "Parliamentary Commissioner" to deal with complaints of maladministration.

2. The Conservative Government of the day was attracted by neither of these proposals. But the Labour Government elected in 1964 came to office pledged to create a Parliamentary Commissioner but without any commitment to create a "General Tribunal".
3. The Parliamentary Commissioner Act 1967 created the first British ombudsman. Key points to note about the 1967 Act are:

   (a) access to the Parliamentary Commissioner (PCA) is only via an MP;

   (b) the PCA provides his report on a complaint to the MP who referred it to him;

   (c) the PCA is concerned solely with whether there has been injustice as a consequence of maladministration by, or on behalf of, a Government Department (and certain other bodies) and is not concerned with the merits of decisions taken without maladministration;

   (d) the PCA may make recommendations but they are not binding;

   (e) the PCA may not conduct an investigation on his own initiative; and

   (f) the PCA may not investigate a matter if a remedy for it has been or may be sought by means of an appeal to a Tribunal or through the courts.

4. The 1967 Act did not meet with universal acclaim. For example, some MPs feared that the PCA would weaken their traditional role of obtaining redress for constituents' grievances. Other MPs and commentators thought that the PCA would be so toothless as to be of no value.
5. But, in fact, the PCA quickly won the confidence of the House of Commons and of Whitehall. So much so that it was soon accepted that a similar system of redress would be appropriate for other parts of the public sector. Legislation to do this was introduced:

   (a) in 1973, to create the Health Service Commissioners for England, Scotland and Wales (in the event, all three offices have always been held by the PCA of the day);

   (b) in 1974 to create the Local Government Ombudsmen (formally, the Local Commissioners for Administration) for England and Wales;

   (c) in 1975 to create a Local Government Ombudsman for Scotland;

   (d) and similar arrangements for the public sector in Northern Ireland.

   All of these newer ombudsman schemes were modelled, to a greater or lesser extent, on the Parliamentary Commissioner Act 1967.

6. It was not long before the private sector began to think that it, too, needed ombudsmen. During the 1980s and 1990s, there has been an explosion of ombudsman schemes. Some of them have a statutory basis, others are purely contractual. So, for example, there are now ombudsmen for Financial Services, Estate Agents, Legal Services and Pensions. The private sector schemes, however, differ in some important respects from those for the public sector. For example, the private sector schemes are, usually, seen as a direct alternative to the courts and so the fact that a complainant could seek redress through the courts is not an obstacle to the ombudsman investigating. Moreover, in the contractual schemes, the ombudsman's decision is binding on the body against which the complaint has been made. And in some private sector schemes, the ombudsman may look at the merits of a decision (was it 'fair and reasonable'?) as well as the way in which it was taken.
7. So much for the origins of ombudsmen in this country and their spread through the public and private sectors. The rest of this note concentrates on the Local Government Ombudsmen for England.

The English Local Government Ombudsmen

8. There are three Local Government Ombudsmen for England. One deals with complaints against authorities in the north of England and parts of central England. Another deals with complaints about authorities in north London, Buckinghamshire, Berkshire, Hertfordshire, Essex, Kent, Surrey, Sussex, Suffolk and Coventry City. And the third Ombudsman deals with complaints about authorities in south London and the rest of England. Geographically, the differences in these three areas are large. But the Ombudsmen each receive roughly the same number of complaints every year.
9. Who is within the Ombudsmen's jurisdiction? This is defined by the Local Government Act 1974. The Local Government Ombudsmen's jurisdiction covers all local authorities (excluding town and parish councils); police authorities; education appeal panels; and a range of other bodies providing local services. [See How to complain on this website for a full list of authorities within jurisdiction.] The vast majority of the complaints the Ombudsmen receive concern the actions of local authorities and that is why they have become known as the Local Government Ombudsmen.
10. What can the Local Government Ombudsmen investigate? The Ombudsmen may investigate complaints by members of the public who consider that they have been caused injustice by maladministration in connection with action taken by, or on behalf of, authorities within the Ombudsmen's jurisdiction in the exercise of their administrative functions. Since 1988, members of the public have been able to complain on their own behalf. There is no need for them to be referred by a councillor (when that restriction was removed, the number of complaints received by the Ombusmen went up by over 44% in the first year).
11. But there are some statutory limitations on the Ombudsmen's jurisdiction. The most notable are as follows:

    (a) The complaint should be made "in time" - an Ombudsman may not entertain a complaint unless it is made to him or her (or a member of the authority concerned) within 12 months from the day on which the aggrieved person first had notice of the matters alleged in the complaint, although the Ombudsman has discretion to conduct an investigation not made within 12 months if he or she considers it reasonable to do so (Local Government Act 1974, section 26(4)).

    (b) Before the Ombudsmen investigate, they must be satisfied that the complaint has been brought to the notice of the authority to which the complaint relates and that the authority has been given a reasonable opportunity to investigate and reply to the complaint (section 26(5)).

    (c) An Ombudsman may not investigate a complaint where there is a right of appeal to a tribunal or a Minister or where the person aggrieved has a remedy by way of proceedings in a court of law, although he or she has discretion nonetheless to investigate if he or she is satisfied in the particular circumstances that it is not reasonable to expect the aggrieved person to appeal or to go to court (section 26(6)).

    (d) An Ombudsman may not investigate a complaint about action which affects all or most of the inhabitants of the authority's area (section 26(7)).

    (e) The Ombudsmen may not investigate the commencement or conduct of civil or criminal proceedings before a court or certain specified commercial transactions, or action in respect of appointments, removals, pay, discipline, superannuation or other personnel matters. Nor may they investigate action concerning the giving of instruction or conduct, curriculum, internal organisation, management or discipline in any school or other educational establishment maintained by a local education authority (section 26(8) and Schedule 5).

    (f) The Ombudsmen may not investigate anything done before 1 April 1974 (section 26(12)).

    (g) The Ombudsmen may not investigate complaints made by a body constituted for the purpose of the public service or by any other body whose members are appointed by the Queen or a Minister or whose revenues consist wholly or mainly of money provided by Parliament (section 27(1)).

12. Despite these restrictions, most of the administrative actions of local authorities are within the Local Government Ombudsmen's jurisdiction.
13. In 2004/05, the Ombudsmen received over 18,698 new complaints; the categorisation of complaints by subject was as follows:

• housing 32%
• planning 23%
• education 7%
• highways 10%
• social services 8%
• local taxation 6%
• environmental health 4%
• land 2%
• other 8%

14. All the powers of investigation are vested in each of the Ombudsmen personally. The Ombudsmen are equal in status and none has power to review the decisions of another.

The Commission for Local Administration in England

15. The members of the Commission are the three Ombudsmen together with the Parliamentary Commissioner for Administration (the Parliamentary Ombudsman). The functions of the Commission include:

• defining the areas of the Ombudsmen;
• providing the Ombudsmen with the staff, accommodation, IT and other support they need to enable them to conduct their investigations;
• producing annual financial estimates, the annual accounts and the annual Business Plan and managing the finances and assets of the Ombudsman service;
• conducting a triennial review of the Part III of the Local Government Act 1974; and
• giving advice on good administrative practice.

  The Ombudsman service is financed by an annual grant, top-sliced from the Revenue Support Grant for local government. Our grant for 2004/05 was £11.058 million.

16. The Commission meets about once a month. In addition to discharging their statutory responsibilities, the Ombudsmen use Commission meetings, for example, to try to achieve consistency in the way they conduct investigations, the way they decide whether there has or has not been maladministration and in the way they recommend remedies for injustice. The Ombudsmen attach great importance to trying to ensure that a complainant or a local authority, wherever in the country, receives the same treatment from the Ombudsman service. So, for example, they have set performance targets for the time we take to decide complaints. The current targets (for 2005/06) are to decide 50% of complaints within 13 weeks, 80% within 26 weeks and 95.5% within 52 weeks.

Impartial and independent

17. An Ombudsman does not deserve that title unless he or she is, and can be seen to be, utterly independent and impartial. That is why the 1974 Act provides for the appointment of the Ombudsmen by the Queen, on the advice of the Secretary of State, and specifies that the Ombudsmen shall hold office on good behaviour until the completion of the year of service in which they are 65. Ministers have always been scrupulous in preserving the Ombudsmen's independence from them. Because of the way the Ombudsmen are appointed, they are wholly independent of the bodies within their jurisdiction.
18. The Local Government Ombudsmen are impartial. When they receive a complaint, they are on the side of neither the complainant nor the respondent authority. They are there to defend authorities against unjustified allegations as well as to seek remedies for those who have been wronged.
19. Of course, if the Ombudsmen do find that something has gone wrong and that a person has suffered in consequence, they will do our utmost to obtain a satisfactory remedy. At that stage, there can be no doubt that they are firmly on the complainant's side.

What are the Ombudsman's powers?

20. For the purposes of an investigation, an Ombudsman has the same powers as the High Court in respect of the attendance and examination of witnesses and the production of documents. The Ombudsman may require anyone - whether a councillor, an officer or anyone else - to provide information and documents. But nobody is compelled to give any evidence which he or she could not be compelled to give in civil proceedings before the High Court. Anyone who, without lawful excuse, obstructs an Ombudsman in the performance of his or her functions is guilty of an act or omission which, if the investigation were a proceeding in the High Court, would constitute contempt of court (there has not, so far, ever been need to resort to proceedings for contempt).
21. The Ombudsman is given unqualified discretion whether to initiate, continue or discontinue an investigation.
22. Investigations must be conducted in private. The procedure for the conduct of an investigation is at the Ombudsman's discretion. The Ombudsman is required not to mention the name of any person in a report on an investigation unless he or she considers it necessary to do so but must name a councillor who has breached the National Code of Local Government Conduct unless the Ombudsman is satisfied that it would be unjust to do so.
23. Ombudsmen are not bound by precedent in reaching their conclusions and making recommendations; but they aim to act consistently.
24. For the purposes of the law of defamation, there is absolute privilege for the publication of any matter in communications between authorities and Ombudsmen (and their staff) and in the communications between a complainant and an Ombudsman; there is also absolute privilege for the contents of a draft report and a final report.
25. Information obtained during the course of an investigation may not be disclosed except for the purposes of the investigation and any report made on it or for the purposes of proceedings under the Official Secrets Acts or for the purposes of proceedings for a hearing in the High Court of an allegation that someone has committed contempt by obstructing an Ombudsman in the investigation of a complaint. Neither Ombudsmen nor their staff may be called upon to give evidence in any court proceedings about any matters coming to their knowledge in the course of an investigation.

What is maladministration?

26. There is no statutory definition of maladministration and little judicial authority on the subject. In piloting the 1967 Act through Parliament, Richard Crossman referred to "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on". In fact, the main test of whether there has been maladministration is whether an authority has acted reasonably in accordance with the law, its own policies and generally accepted standards of local administration. 'Reasonableness' crops up again and again in letters and reports explaining the Ombudsmen's conclusions. The Ombudsmen are concerned with the way a decision is reached, not with the merits of decisions (see paragraph 1 above).
27. The top ten causes of maladministration in 2000/01 were as follows:

• delay in taking action;
• taking incorrect action;
• failure to provide information;
• failure to compile and maintain adequate records;
• faliure to take action;
• faliure to take relevant considerations into account in making a decision;
• failure to investigate;
• failure to deal with letters or other enquiries;
• faliure to comply with legal requirements; and
• making misleading or inaccurate statements.
  

What about injustice?

28. The Local Government Ombudsmen are there to investigate complaints that the complainant has sustained injustice in consequence of maladministration.They sometimes reject complaints because, although there might have been some administrative fault, there was no evidence at all that it had caused a personal injustice. Again, however, the 1974 Act does not define "injustice". It is left to the discretion of the Ombudsman to say what it means in any particular case.
29. Examples of injustices caused by maladministration are as follows:

• denial of a benefit, service or some other entitlement;
• direct financial loss;
• loss of amenity;
• a missed opportunity (eg to appeal or receive education or to be allocated a house);
• distress; and
• being put to avoidable time and trouble.

  The content of complaints and the harm complainants can suffer vary so much that it is not possible to produce a nice, neat, definition of injustice.

What does investigation mean?

30. When the Ombudsmen receive a complaint, the first question they have to ask themselves is whether it is within their jurisdiction. For example, has the authority had a reasonable opportunity to consider it; if not, it is premature and the Ombudsman will send it to the authority, asking it to investigate and reply to the complainant, and at the same time write to the complainant saying what he or she has done and that if the complainant remains dissatisfied after the authority has considered the complaint, the complainant can come back to the Ombudsman. In 2004/05, over 4,700 complaints were premature and just over 2,400 were outside jurisdiction for other reasons. If the Ombudsmen cannot help, they try to suggest who else might.
31. But assuming the complaint is within jurisdiction, the Ombudsman decides what information is needed in order to reach a decision whether injustice has been caused by maladministration. Sometimes the complainant has provided enough information to allow the Ombudsman to conclude with reasonable confidence either that there has been no fault or that there has been no injustice or both. In that event, the Ombudsman writes to the complainant to explain why he or she has reached that decision and the complaint is discontinued. The Ombudsman sends the authority a copy of the complaint and his or her decision on it.
32. In many cases, it is not clear exactly what the complainant objects to or what injustice they claim to have suffered. So the Ombudsmen often get in touch with the complainant straightway to obtain clarification. Having done so, the Ombudsman then writes to the authority, defining the complaint and asking for comments. He or she usually also specifies what information they want (eg copies of policies, minutes of meetings).
33. When the authority replies, the Ombudsman usually sends a copy of the reply to the complainant and asks for his or her comments. In the covering letter, the Ombudsman may highlight particular points which he or she thinks significant or on which he or she is particularly anxious to have the complainant's views.
34. In the light of the complainant's comments, it is usually possible to judge either that the Ombudsmen have got to go a lot deeper - inspecting the council's files, interviewing officers and members, obtaining information from other sources and so on; or they may feel that by that stage they have got enough information to reach a fair and reasonable decision. How far the Ombudsman investigates varies from case to case.
35. In the majority of cases, the Ombudsmen are able to reach a decision without inspecting files or conducting extensive interviews. In such cases, they usually send the complainant a letter setting out our provisional conclusions and asking for comments before they reach a final view.
36. Each Ombudsman is assisted by a Deputy and between 35 and 40 investigative staff. The latter are the Ombudsman's eyes and ears. They assemble the evidence needed to decide the complaint. The Ombudsmen have given their staff extensive delegated powers. Most cases are decided by the staff. But all major or particularly contentious complaints and those raising novel issues are decided by the Ombudsman personally.

Outcome of complaints

37. In 2004/05, the Local Government Ombudsmen decided 18,487 complaints. The outcomes were as follows:

In 27% of all complaints, which were not premature or out of jurisdiction, complainants obtained remedies as a result of coming to the Ombudsman.

Local settlements

38. It is very welcome that in a large number of cases councils accept in the course of an investigation that they have done something wrong and that they would like to put it right. This initiative may come from the council itself or, more often, is proposed by the Ombudsman's office.
39. If the Ombudsman is satisfied with the remedial action offered by a council, he or she will regard the complaint as 'locally settled' and discontinue the investigation. Before reaching that view, the Ombudsman will usually consult the complainant but is not bound by the complainant's views.

Formal reports

40. Because authorities are willing to offer local settlements in so many cases, it is only in a very small minority of cases that it is necessary to complete an investigation and publish an adverse report. Before issuing such a report, the Ombudsman sends a draft of the facts learned so far in the investigation to the authority, the complainant and any other relevant parties inviting their comments on the accuracy of the draft. The covering letter tells the authority what the Ombudsman's findings are likely to be and invites comments on those too.
41. Formal reports usually begin by setting out the complaint that has been investigated and then go on to give the relevant legal and administrative background. This is followed by a summary of the key facts found in the course of the investigation. Finally, the report sets out the Ombudsman's findings on whether there has or has not been maladministration and, if there has been, whether it has caused injustice. The Ombudsman usually recommends a remedy for the injustice to the complainant and, in many cases, also recommends administrative changes to help avoid a repetition of the difficulty. The Ombudsmen's recommendations are not binding.
42. By law, the authority has to give notice in newspapers that copies of the report are available for public inspection unless the Ombudsman has issued a direction that the report should not be made publicly available. Such directions are rare but can be necessary where, for example, however hard the Ombudsman tries, the identity of the complainant (or others) would be likely to become known and could cause distress or worse.
43. Within three months of the issue of the report, the authority is required to tell the Ombudsman what action it proposes to take. In nearly every case, authorities agree to comply in full with the Ombudsman's recommendations. The Ombudsmen encourage authorities, if they have any doubt about this, to come and talk to the Ombudsman about it.
44. But in a tiny proportion of cases authorities have not been willing to take action which satisfied the Ombudsman. In that event, the Ombudsman is required to publish a further report, formally recommending what action the authority should take. Again, the authority is required to reply. If the Ombudsman remains dissatisfied having considered the reply, he or she may require the authority to publish a statement in newspapers setting out what he or she has found and why the Ombudsman considers the authority's response is unsatisfactory. In 2004/05, it was not necessary to require the publication of any such statements.

Remedies

45. Where someone has been caused injustice because of maladministration, what remedy would the Ombudsmen be likely to seek? There is no one answer. The Ombudsman's objective is to try to put the complainant back into the position that he or she would have been but for the maladministration. In some cases, that is fairly straightforward. For example, a house can be repaired or landscaping provided. But in other cases, an opportunity may have been missed which cannot be provided anew or the harm cannot be rectified by practical action. In those cases, financial compensation may be appropriate.
46. The Commission has published a Guidance Note explaining the Ombudsman's approach to the formulation of remedies. If you have not already seen a copy, please write to: Commission for Local Administration, Millbank Tower, Millbank, London SW1P 4QP, asking for Guidance Note 6 [or find it in Guidance on good practice on this website].

Discretion

47. Section 26 gives the Ombudsmen discretion whether to investigate a complaint even if it is made "out of time" or an alternative means of seeking redress is available (see paragraph 11(a) and (c) above). How is that discretion to be exercised?

Complaints made

48. Complaints must be made in writing within 12 months of the complainant first having notice of the matter complained about although the Ombudsman may investigate a complaint made out of time "if he considers it reasonable to do so".
49. In deciding whether it would be reasonable, the Ombudsmen always bear in mind what Lord Denning said in R v Commissioner for Local Administration ex parte Bradford City Council (1979) QB287. Lord Denning said:

    "Time bars are not to be enforced rigidly against a complainant where justice requires that the time be extended and his complaint heard."

    On the other hand, the longer ago the events, the more difficult it is usually to establish the truth. People's memories fade, papers get destroyed, witnesses move and can't be traced. It would unfairly raise the complainant's expectations and waste public money to begin an investigation unless there were a reasonable prospect of being able to establish the facts of the case.

50. But the Ombudsmen will exercise their discretion to investigate a complaint made out of time where there is a reasonable prospect of establishing the facts and, for example, the complainant was ill or incapacitated and so was unable to act sooner; where the injustice is great; or where there is any other factor they judge consistent with what Lord Denning said.

Alternative remedy

51. Section 26(6) says that the Ombudsmen may not investigate a complaint where the complainant could seek a remedy by way of an appeal to a tribunal, a Minister or by proceedings in any court of law unless they consider that, in the particular circumstances, it would not be reasonable to expect the complainant to resort to any of those means of seeking a remedy.
52. There are three leading cases about the way in which the Ombudsmen should approach the exercise of their discretion under section 26(6).
53. The most recent is R v Commissioner for Administration ex parte PH (21 December 1998 - Mr Justice Turner). This was a case about a child with special educational needs (SEN). The child's mother was deeply disturbed about the local education authority's delay in assessing her child's SEN. She initiated judicial review proceedings and the LEA agreed to an order requiring it to assess the child without further delay. Subsequently, the mother complained to the Ombudsman that her child had been caused injustice by the delay in making suitable provision for him and she sought compensation. The Ombudsman took the view that the complaint was outside his jurisdiction because the mother had already sought a remedy by way of the judicial review proceedings. So the mother sought judicial review of the Ombudsman's decision. She wanted the court to order the Ombudsman to investigate her complaint.
54. Mr Justice Turner found that:

    "It can hardly have been the intention of Parliament to have provided two remedies, one substantive by way of judicial review and one compensatory by way of the Local Commissioner.... Where a party has ventilated a grievance by way of judicial review it was not contemplated that they should enjoy an alternative, let alone an additional right by way of complaint to a local commissioner."

    He upheld the Ombudsman's decision and awarded him costs.

55. The two other leading cases are:

• R v Commissioner for Local Administration ex parte Bradford City Council (1979) QB 287; and
• R v Commissioner for Local Administration ex parte Croydon LBC (1989) 11 ER 103.

  In both cases, the court took a hard line on any suggestion that the Ombudsman should trespass on the jurisdiction of the courts.

Commission for Local Administration
July 2005