Guidance on Jurisdiction

Part 11

11. Should we investigate?

11.1 Introduction

The Local Government Act 1974 s24A Power to Investigate sets out the basis for how we can use our discretion. We frequently refer to this as using ‘our general discretion’ or ‘Ombudsman’s discretion’ when talking about casework:

S24(6) In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the provisions of this section and sections 26 to 26D, act in accordance with his own discretion.

We should try to complete our investigations, making a finding of fault / no fault where it is proportionate to do so. But we can use our discretion to not investigate a complaint, or end our investigation, or limit what parts of a complaint we will investigate. Whilst we cannot make arbitrary, blanket or otherwise ‘unreasonable’ decisions, this clause is a powerful tool to focus our work on the complaints where it is most needed.

The decision about whether or not to investigate, or about what parts of a complaint to investigate is ours to make at any stage of our work, based on our understanding of the circumstances of the complaint, having particular regard to public interest, injustice, fault and remedy. We should explain our decision to end our investigation and/or limit our scope in our statement of reasons.

In the past we have used the term ‘discontinue’ as set out in the Act. This is not plain English. It also suggests we have not properly dealt with the matter. Where we decide to end an investigation without making findings of fault / no fault we should say so clearly. “We have decided to end our investigation” properly reflects our conscious, considered decision. It accurately states this as a positive, active decision.

We do not have to investigate a complaint just because the matter concerned is within our jurisdiction. Nor do we have to investigate solely based on the complainant’s opinion about the injustice they have suffered, or the severity of the alleged fault. Instead, we are entitled to come to a considered decision about whether an investigation is worthwhile, looking carefully at all the relevant circumstances of the matter. This also includes our decision about whether we can achieve a worthwhile outcome for the complainant and whether there is another body better placed to deal with the matter.

One factor relevant in such consideration is the wider public interest – both in finding fault but also in finding no fault. It may therefore be that a case appears to us to have little prospect of us finding fault, but where there is considerable public interest in making a finding of no fault.

We should keep the exercise of our discretion under review throughout the life of a complaint. Although the ‘discretionary stage’ features in our Assessment Code, Investigators in the Investigation unit should equally keep matters of public interest, injustice, fault and remedy under continuous review. In some cases it will only become apparent at the Investigation stage that there is insufficient public interest, injustice and/or fault to justify our involvement, or that a meaningful remedy is unlikely.

If it becomes apparent, based on the investigator’s careful consideration of these matters, that we should not investigate the complaint, the investigator should be prepared to end that investigation by using and being prepared to justify use of s24A(6). 

The courts have made several decisions confirming the scope of our discretion – our ability to choose to put limits on what we will investigate:

R v Parliamentary Commissioner for Administration, ex parte Dyer [1994] 1 All ER 375.

It would only be in rare cases that it could be demonstrated that the exercise of the discretion of the Ombudsman was unreasonable in the public law sense and the Court will be reluctant to intervene in the exercise of its discretion. Moreover, in the exercise of discretion, the Ombudsman is entitled to limit the scope of an investigation by identifying certain broad categories of complaint and investigating only those.

R v Commissioner for Local Administration, ex parte Turpin [2001] EWCA Admin 503.

Whilst confirming that the court would only interfere with an Ombudsman’s discretion if that discretion has been exercised unlawfully, the Judge added that “in addition” the court would be entitled to intervene if the investigation has been conducted in a manner which is unfair, provided the court is satisfied that there has been a risk of prejudice.

R (on the application of Doy) v Commission for Local Administration in England [2002] Env. L.R. 11.

Decisions of the Commissioners are subject to review, but the Commissioners are given a very wide discretion and the Courts can only set aside their decisions if they are wrong in law, irrespective of the fact that any particular Judge would have come to a different decision.

A further judicial review confirmed our ability to say we will not investigate because we decide there is insufficient injustice:

R (on the application of Abernethy) v LGO [2002] EWCA Civ 552.

The Ombudsman, as a publicly funded body, has a very wide discretion when deciding whether to investigate a complaint and prioritising the investigation of those complaints which appear to involve significant injustice as opposed to those which do not clearly fall within that discretion

11.2 Discretionary factors to consider

We should have regard to four inter-related tests throughout the life of our investigation:

  • The Public Interest Test – This assesses the level of wider public interest arising from the individual case.
  • The Injustice Test – This assesses the level of personal injustice the complainant claims to have been caused as a direct result of the actions or inactions of the service provider.
  • The Fault Test – This assesses the scale and nature of the fault, that the complainant alleges has occurred and whether it is directly linked to the injustice claimed.
  • The Remedy Test – This assesses how likely it is we will be able to achieve a meaningful outcome to the complaint.

In some cases we will consider the combined impact of all four tests when deciding whether we will complete our investigation to the point of making findings. In other situations, the significance of one particular test may be enough to determine what action is appropriate.

We can use our experience and judgement to carry out this balancing exercise to apply these tests to the unique facts of each case. Complaints are not scored, weighted or rated according to any numerical formula.

The LGSCO service is a public authority for the purposes of both the Human Rights Act 1998 and the Equality Act 2010. We treat all individuals fairly, with dignity and respect. We will also make reasonable adjustments to our working processes (but not our decision making) where it is necessary to do so.

As well as these four tests, we should also consider using our general (s24A(6)) discretion not to investigate complaints where the matters concerned relate to areas a Tribunal, Court or government Minister have or could have could have looked at. More on this is set out in section 8.1 above.

11.3 The Public Interest Test 

As we seek to obtain the maximum impact from our casework, the extent to which any individual complaint raises issues of wider public interest is a major consideration when deciding which cases we investigate. We are more likely to investigate a complaint where:

  • It relates to an issue of significant public interest; a known issue of current concern to the Ombudsman; or clearly impacts a wider range of people beyond the individual complainant.
  • It relates to the abuse of power by a public body against a person. This may arise, for example, where a Council behaves in an arbitrary and unreasonable manner over the sale of land. In these situations, we have an important role in addressing the unequal balance of power between the person and the state, and in highlighting the higher standards expected of public bodies when exercising their administrative or commercial powers.
  • Where the ‘vulnerability’ or particular circumstances of the complainant indicate we should investigate.

11.4 The Injustice Test

The Injustice test is also an important factor in our decision about whether/ when to end our investigation of a complaint. We can decide to end our investigation at any stage because we decide there is not enough evidence of injustice. This will normally be done at our Assessment stage. But the level of injustice may not be sufficiently clear until we have had time to more fully consider relevant evidence through our Investigation stage.

For example, in a planning complaint it may only be by reading the lengthy officer case notes that we can be clear enough about the potential injustice to decide whether it is worth investigating. This is not overturning or undermining the decision made at Assessment. Instead, it is properly continuing to have regard to our exercise of discretion in light of the emerging, full circumstances of the complaint. 

In making this decision to end our investigation, we should also have due regard to the importance for the body in jurisdiction and complainant in making a definitive finding of fault/no fault in the circumstances of the complaint. For example, even where the personal injustice is objectively relatively small, it can often be in the complainant and / or BinJ’s best interests for us to make a finding of fault/no fault in order to achieve some closure and for them to be able to move on. We should also consider if, even where personal injustice is limited, whether there is a wider public interest (as above) that would still justify continued investigation and whether other identifiably members of the public may have suffered significant injustice.     

We should explain our reasons for deciding whether/when to end our investigation of a complaint in our decision statement.

We will not normally investigate a complaint unless there is good reason to believe that the complainant has suffered significant personal injustice as a direct result of the actions or inactions of the service provider.

This means that we will normally only investigate a complaint where:

  • the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures by the service provider, or
  • there are continuous and ongoing instances of a lower level injustice that remain unresolved over a long period of time.

We will not normally investigate a complaint where:

  • The alleged loss or injustice is not a serious or significant matter.
  • The complainant is using their enquiry as a way of raising a wider political or community campaign. In these cases their concerns may be better addressed to their local councillor or MP rather than the Ombudsman.
  • The complainant is not the person primarily affected and is complaining about a secondary impact on them, rather than acting on behalf of the person directly affected.
  • The complainant has suffered significant personal injustice, distress and loss, but those events cannot be shown to be directly the result of the actions or omissions of the service provider.

When exercising discretion to decide which cases we initiate, discontinue, or complete an investigation into, we normally expect the complainant to provide a causal link between the allegation of maladministration or service failure and significant personal injustice – the loss or reduction of a service, lost opportunity, an unfair charge etc. But we also receive complaints where the claimed injustice relates to a more public or non-direct injustice. 

Caselaw has established beyond doubt that non-material forms of injustice can be within our jurisdiction. The leading case is R v Parliamentary Commissioner for Administration, ex parte Balchin [1996] EG 166 (CS) – which contained a partial definition of “injustice” as:

“...not merely injury redressable in a Court of Law, but also the sense of outrage aroused by unfair or incompetent administration, even where the Complainant suffered no actual loss”.

Arriving at a consistent approach on the exercise of discretion in such cases can be difficult for the following reasons:

  • What may affront one person, may cause little or no concern to another.  
  • As we do not have the capacity to investigate all complaints where the direct impact on the complainant is relatively inconsequential, we have to arrive at a view on what common attributes a complaint of this nature would contain which would lead us to exercise discretion to investigate in a consistent manner.   
  • We are prohibited in law from investigating matters which we consider affect all or most of the inhabitants within a particular local authority’s area, and so need to ensure we do not stray beyond the confines of our jurisdiction.
  • Just as with cases where direct or personal injustice is claimed, other bodies may be better suited to investigate the complaint. Although section 26(6) alternative appeal rights may not be engaged, we may choose to exercise our general discretion not to investigate where another body is better suited to do so. 

We use a three-stage test to assist in the consideration of those complaints where the claimed injustice is non-direct or public in its nature, as it does not have a personal impact on the complainant, but nonetheless may merit investigation as the matter gives rise to legitimate concerns or a sense of outrage or distress. 

Stage one - In all circumstances, is it legitimate for us to conclude the Council’s alleged maladministration or service failure might give rise to significant concerns, offence or upset for some members of the public? 

The LGSCO scheme does not permit consideration of complaints where neither maladministration nor service failure are alleged. Neither does it enable consideration of complaints of a very general nature which clearly affect ‘all or most’ people within a local authority’s area. But very few complaints alleging non-direct or public injustice are likely to be caught by ‘all or most’ as they tend to be about specific decisions which could not objectively be said to impact on entire communities of people.

‘All or most’ will only ever be an exception to our work, and only applicable in a very narrow set of circumstances. Whilst the setting of Council Tax precepts or complaints about the proportion of funding allocated to highway repairs may well be caught by ‘all or most’, concerns about the loss of specific community assets, a particular wildlife habitat, historic environment, or landscape would not. Similarly, someone may raise concerns about matters which affront reasonable moral or ethical expectations of a body in jurisdiction – such as corruption, patronage, or undemocratic behaviours.

In keeping with our normal processes, we would expect someone to say what they felt had gone wrong and how it had affected them, albeit without having to establish a causal link to direct injustice of a personal nature. 

As with all our work, we are tasked with taking a proportionate approach when exercising discretion to accept a complaint for investigation. A complaint about a Council cutting back a section of hedgerow along a footpath during the Spring – and so resulting in a loss of habitat for birds during the breeding season – may or may not merit investigation. Much would depend on the size of the section of hedgerow that was removed; the extent to which it was causing a legitimate obstruction; when the Council was first notified or should have been aware through its inspection regime of the problem; and whether it gave legitimate thought to the loss of habitat when taking the decision to cut it back during the Spring.   

Stage two - Does the complainant have some defining element that establishes a clear link between the alleged maladministration or service failure and the non-direct or public injustice about which they complain?

The Act only requires complaints to be made by members of the public (or their representatives) who claim to have sustained injustice because of alleged fault. We would normally expect that to mean a level of personal injustice that is sufficiently substantial to justify our investigation. But someone may also complain about an issue which has resulted in a sense of offense or public outrage – without being able to claim a direct impact in terms of a material loss.

Where someone who is alleging fault cannot legitimately claim they have been caused personal injustice as a result, we would always want to distinguish between:

i) those who may have a concern about how their local authority had discharged an administrative function – but where no personal injustice had arisen – and there is no wider public injustice beyond a sense of affront about the council’s actions, and

ii) those who have a sufficient connection with an issue to legitimately claim a non-direct or public injustice has arisen, even though it has not affected them personally. 

Where a complainant has clearly demonstrated a level of personal interest and engagement in the relevant matter beyond that of a general member of the public, such as through membership of a particular public interest group, or established a connection with the issue through their demonstrable actions, such as through campaigning, volunteering or charitable work, we would be more readily able to draw a firm link between the fault and the non-direct injustice to the person concerned. In such cases we would be more likely to be satisfied that the complainant could reasonably claim to have been offended or affronted by an issue, despite the lack of significant injustice of a direct personal nature.

Examples might include:

  • The failure of a council over a number of years to exercise its powers to deal with an unsightly derelict building which attracts fly tipping and other anti-social behaviour.  The complainant lives some distance from the site, but regularly walks past it with their children on the way to school and has – together with a number of other parents – campaigned for some time for action to be taken against the owner.
  • A lack of enforcement action in respect of unregulated development in a Conservation Area.  Whilst the complainant may not live particularly close to the development, they have an active interest in the preservation of the historic buildings within the area.
  • The sale of woodland which previously had some community value as people – including the complainant – used it for recreation. The complainant alleged failure to follow due process in respect of wider consultation obligations, or to obtain the market rate.
  • The decision to remove a number of otherwise healthy trees and replace them with alternative species.  
  • A conservationist complaining about loss of wildlife habitat due to planning faults.
  • We received a complaint from an MP about a council’s failure to deal with unauthorised land use by travellers. The site was in the greenbelt and was occupied in part by a travelling showman community. Over the years, the original residents felt they were being forced out by people and the Council had effectively lost control. The MP had been raising concerns about the site since 2011. Although the MP could not point to any personal injustice, we agreed to investigate given the sense of outrage caused by the alleged failings and because the MP was seeking to address the cause of the outrage and not seeking any personal remedies for their constituents.

Stage 3 - Are we satisfied there is no other body better suited to consider the allegations that have been made?

Regulators, Inspectors and Ombudsmen all have distinct statutory functions and their own constituent sectors. Our work should be complimentary not competitive – filling a gap where there is one, but not usurping the role of others. such as Department for Levelling Up, Housing and Communities or Local Government Association’

Remedies in cases involving non-material injustice

Our remedies for non-material injustice are going to be – by their nature – more rooted in the local authority taking the organisational learning, and ensuring similar incidents do not occur in future, rather than providing a personalised remedy for the complainant. They may also involve the taking of action to ameliorate the impact of the injustice where it is possible to do so. The general guidance section of the Guidance on Remedies - Local Government and Social Care Ombudsman sets out our approach to outrage, and remedying public injustice.

11.5 The Fault Test

Fault is a broad concept and covers a wide range of action or inaction by a public body or a care provider.

We will be more likely to investigate a complaint where:

  • The type and scale of the fault amounts to a particularly serious failure to meet normally expected standards of public service.
  • There is ongoing widespread failure in a service provider’s policies or procedures where our intervention may result in a wider public benefit.
  • The service provider is directly responsible for the action that has caused the alleged fault.

We will be less likely to investigate a complaint where:

  • There is not enough evidence of fault.
  • The complaint is simply an expression of discontent about an unpopular or contentious decision which has been made without fault.
  • It would be more appropriate for another body to consider the complaint. For example, an allegation of repeated failures in care standards affecting a number of different people in a residential care home could be referred to the Care Quality Commission.
  • The link between the claimed injustice and the actions or omissions of the body complained about is weak or unclear.
  • The service provider only has a secondary role in the relationship between the complainant and another party, such as where a person is unhappy with work done by a builder and so complains about their council’s building control department.
  • It would not be appropriate to investigate most of the complaint, and only smaller, marginal issues remain. So, for example, we will not usually investigate a failure by a council to adhere to its complaints procedure if the complaint itself is not a matter we can consider (ie it does not pass the ‘jurisdictional’ stage and so we cannot look at the substantive matter).

Consideration at our Assessment stage is designed to conclude whether the seriousness of the alleged fault warrants detailed investigation. It will be unusual for investigations that have reached our Investigation stage to end because of insufficient evidence of fault. But some of the considerations about fault as set out above may only become sufficiently clear and apparent at the Investigation stage.

 For example, it may only be at the investigation stage that we can be clear about the respective actions of the service provider and of other parties (not bodies in jurisdiction) in contributing to the alleged fault, or the weakness of the link between claimed injustice and the actions / omissions of the body complained about.

11.6 The Remedy Test

We will be less likely to investigate a complaint where:

  • In our view the service provider’s response to the complaint already represents a reasonable and proportionate outcome.
  • We are unlikely to achieve a significantly different result.
  • There is no achievable or realistic remedy, or no prospect that we will achieve the result that the complainant seeks.
  • There is no practical prospect that we would be able to investigate the allegations. (For example, where the complaint depends on the uncorroborated word of one person against another.)
  • The claimed loss is disproportionate to the reasonable expectations of what the service provider could be held accountable for. 
  • The claimed loss is large and would be more appropriately addressed through action in the civil courts. (For example, large commercial or business losses arising from an alleged failure by a public body).
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