2.1 Introduction

The term ‘maladministration’ is deliberately not defined in law and similarly there is no explicit threshold for what constitutes maladministration. Our jurisdiction allows us to investigate alleged or apparent maladministration or service failure. Our investigations often touch on both, and we interpret maladministration to include service failure. As long as we present our findings clearly, we should not need to go in to a detailed explanation of the differences. Case law (R(ER) v Local Government Ombudsman [2014] EWCA Civ 1407) has confirmed that we do not have to make separate findings for maladministration and service failure. In our decision statements, we refer to fault rather than maladministration or service failure as this is a simpler term for the public to understand.

2.2 What is maladministration?

It is for the Ombudsman to decide whether a particular set of circumstances amount to maladministration. In general terms, it is ‘administrative fault by the body in jurisdiction’ or ‘fault in an action taken by a body acting on behalf of the body in jurisdiction’.

There is no threshold for maladministration, and we should always identify where something has gone wrong in our reports and decision statements. Regardless of how serious the maladministration is, we should not consider it by itself. We must assess the effect the action had on the complainant (the injustice) and whether a remedy should be provided.

Maladministration in broad terms might include:

• flaws in policies or decision making
• poor administrative practice
• failure to adhere to or consider properly statutory guidelines
• failing to consider properly the exceptional circumstances of an individual or a situation
• not properly considering statutory powers or duties
• failing to give an adequate service.

2.3 Assessing maladministration or service failure

In deciding whether there has been maladministration or service failure causing injustice, we must weigh up all the evidence, including any mitigating factors, to come to a view. In doing so we will make a judgement about what actions (or inactions) were reasonable, fair or appropriate in all the circumstances.

Our role is to identify whether there was any fault and our conclusion should never be that the BinJ’s actions were or were not ‘reasonable’. This confuses reasonableness (or unreasonableness) with fault. If we consider the BinJ’s actions have been unreasonable, there must be cause for us to think that (e.g. bias, irrelevant considerations, improper motive in reaching a decision etc). Similarly, if we think the BinJ’s actions were reasonable, there will be reasons we think that and these are what we should set out in our decision.

Investigators must explain their analysis and give full reasons for the decisions that they reach.

2.4 What is “Wednesbury unreasonable”?

We should not say that we find no fault because a BinJ’s actions were not ‘wholly unreasonable’ or ‘utterly unreasonable’. We would be applying the Wednesbury unreasonableness test, which is a test developed and used by the courts for a different purpose. Something is “Wednesbury unreasonable” if it is:

“so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374)

In a more recent case the judge used a more moderate definition of Wednesbury unreasonable:

“the decision does not have to be so bizarre that its author must be regarded as temporarily unhinged but must be ‘irrational’ in the sense that it does not add up, or in other words, there is an error of reasoning which robs the decision of logic.” (R (on the application of Newman) v The Parliamentary and Health Service Commissioner [2017] EWHC 3336)

Very occasionally we may consider that a council’s decision was ‘wholly unreasonable’ (described by the courts and in the Crossman catalogue as ‘perverse’, which follows a similar test to that of ‘Wednesbury unreasonable’). However, such cases are rare, usually very serious and would generally require legal advice. If a decision looks perverse, carefully check the decision making process, as the likelihood is there will be fault at some point in the process itself.

2.5 Service Failure

The concept of ‘service failure’ was not present in the Local Government Act 1974 as originally drafted and implemented.  The relevant clauses were inserted into the legalisation in 2007 as part of a raft of amendments contained in the Local Government and Public Involvement in Health Act.

The absence of ‘service failure’ had never been previously regarded as a barrier to taking a suitably broad and inclusive interpretation of the concept of ‘maladministration’. Consequently, this specific change was not one that was actively sought by the Ombudsmen at the time ( in contrast to many of the other clauses introduced by the 2007 Act, such as 26D, which were regarded as valuable enhancements to our remit).

As far as is understood, the ‘service failure’ amendment was made as a tidying-up exercise to bring the ’74 Act into line with other public sector ombudsman legislation, which contain this clause, perhaps to better facilitate joint working.

The specific changes broadened the ‘matters subject to investigation’ section of the Act, to include, in addition to maladministration:

• A failure in a service which it was the function of an authority to provide, or
• A failure to provide such a service

The perception at the time was that these clauses made no material change to the wide range of matters that were already subject to investigation, and there was therefore no change in investigative practice as a result.

The only significant legal test of the meaning of these clauses is contained in the judicial review - R (on the application of ER) v CLA (LGO)

In that case, the appellant argued that we should have approached our investigation through two distinct lenses, firstly to test for maladministration and separately to test for service failure. That approach was robustly rejected by the court, which said, “The 2007 Act clearly did expand the LGO’s power to investigate... (however) I question whether the change was as revolutionary as argued…”

This was a welcome decision, in confirming our view that ‘service failure’ is not a distinct doctrine to be separately applied, and in recognising that these clauses are, at most, a modest expansion, or perhaps simply a helpful clarification of our pre-existing jurisdiction.

In so far as the concept of ‘service failure’ does add to, or clarify, our previous understanding of what we can investigate, it clearly confirms that there does not need to be any aspect of blame, intent, or bad faith involved in a body’s actions in order for us to find fault. 

The existence of ‘Service failure’ or the ‘failure to provide a service’ is clearly a straightforward, objective and factual test of what happened in any particular set of circumstances, independent of any judgement about the body’s intentions.

It is therefore possible to conceive of situations where we might (and already do) conclude that service failure has occurred, causing a significant injustice to the complainant, in the absence of specific flaws in policy or process and despite the best endeavours of the body concerned. 

This might for example be the case where an otherwise sound system is undermined by the absence of key staff or the inability to recruit to key roles, or where external market factors (such as the availability of temporary accommodation for the homeless) prevent a statutory duty being delivered.

In such circumstances it is clear we can find fault and can remedy the injustice that arises.  We should however be clear in such cases about the context in which we have found fault to have occurred – pointing where appropriate to external factors that have led to the failure of the service.

We should however be clear that this not represent a change in approach, as we already make findings of fault in such circumstances. 

Nevertheless, we should recognise that the concept of ‘service failure’ does provide additional reinforcement that findings of ‘fault’ can in some circumstances be simple, objective tests of fact. They are free from subjective notions of blame and are not dependent on us demonstrating misconduct, bad faith, or negligence.

2.6 Recording maladministration and service failure in ECHO

We can, where the issue is minor and has not caused an injustice to the complainant, record the outcome of the investigation in ECHO as ‘no fault’ if we consider the circumstances warrant it. It is for each investigator to decide whether to record a finding of fault in ECHO. Dependent on the circumstances, an investigator may decide to record the outcome as fault, however, in a different case, while the fault is the same, the circumstances may be different, and as there is either no or little impact on the complainant which requires a remedy, the investigator may decide to record a finding of no fault.

The issues we need to consider are:

• What was the nature of the fault? How significant was it? Were others affected by it?
• What was the injustice and impact on the complainant? Did the circumstances of the complainant make the impact on them more significant? For example, were they vulnerable in some way?
• Is there any outstanding action the council needs to take to remedy the injustice? If the complaint still needs a remedy, you must record a finding of fault.

The following are some practical examples of where we may decide not to record a finding of fault.

Example one

Example two

Example three

Example four