Guidance on Jurisdiction
Part 4
4. Actions we can investigate
4.1 Section 26(1) lists the actions that may be investigated
S26(1) For the purposes of section 24A(1)(b), in relation to an authority to which this Part of the Act applies, the following matters are subject to investigation by a Local Commissioner under this part of the Act –
(a) alleged or apparent maladministration in connection with the exercise of the authority’s administrative functions
(b) an alleged or apparent failure in a service which it was the authority’s function to provide
(c) an alleged or apparent failure to provide such a service
4.2 Section 34B (Part IIIA complaints)
S34B (1) Under this Part, a Local Commissioner may investigate a matter—
which relates to action taken by an adult social care provider in connection with the provision of adult social care...
4.3 What are administrative functions?
All functions that are not exclusively judicial or legislative are administrative. Councils’ only legislative functions appear to be the making of bye-laws; and complaints about how they are made (or the fact they have been made) would be outside jurisdiction.
It is clear from R v Local Commissioner for Administration ex parte Bradford Metropolitan City Council (1979) QB 287 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)).
Returning Officers for local elections do not carry out administrative functions of the council. 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.
Sometimes councils make decisions where it appears they are acting as an agent of Government, for example in deciding the employment status of contractors to determine their tax status. Where the council is responsible for taking actions (e.g. collecting evidence) and making the decision, those actions are likely to be an administrative function of the council and therefore fall within our jurisdiction.
When considering complaints involving such decisions it will be important to consider whether the council is acting within its powers, and exercising some judgment. If so, such actions are likely to fall within the meaning of local authority functions set out in the LGA 1974 section 26(1) and therefore be something we could investigate.
However we may decide not to investigate where the council function concerned is too similar to a personnel function (and therefore subject to Schedule 5, paragraph 4) and/or because we cannot achieve a meaningful remedy for injustice arising from the alleged fault.
A decision about whether or not to investigate such cases will be made on a case by case basis, having regard to the scale of the council’s responsibility and where the duty rests.
It may be that injustice from any fault by the council will come from consequential decisions made by bodies not in our jurisdiction – for example where the complainant appeals to HMRC or another Government agency which makes the final decision. In such cases we could consider whether symbolic remedies or repeating the council’s actions without fault are appropriate to put the complainant back in as near as possible a place as they would have been, but for the council’s fault.
But most other actions of officers are actions taken in the exercise of the administrative functions of the council. Note, however:
4.4 Superintendent Registrars
These officers 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.
4.5 The Registration Officer
The Registration Officer is responsible for the compilation of the Register of Electors. Generally, complaints about maladministration by this officer will be caught by s26(6)(c) as there are rights of appeal to the County Court about their decisions. The rights of appeal relate to registration applications or objections and applications for postal or proxy voting – s56 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 Robertson v City of Wakefield Metropolitan Borough Council (2001) EWHC Admin 915 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).
4.6 Approved mental health professionals
The Mental Health Act 2007 established the role of Approved Mental Health Professional (AMHP). AHMPs have key responsibilities relating to the assessment and detention process of people with mental illness. The AMHP need not be a social worker but cannot be a practicing medical practitioner. S/he is appointed by social services authorities under the Mental Health Act 1983 (as amended) for the purposes of discharging functions under the Act (s114). S114(2) provides that no person shall be appointed as an AMHP unless s/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 AMHP, if required by the nearest relative, “to take the patient’s case into consideration”. Taken together, the Ombudsman considers these administrative functions are sufficient to put complaints about the way AMHPs carried out their actions within jurisdiction.
4.7 Other health professionals
Community health service staff are usually employed by the NHS and often act for the council in the housing allocation process, although some councils have their own clinical staff. Section 113(1A) of the Local Government Act 1972 provides that a council may enter into an agreement with a local NHS body, to place at the council’s disposal an officer of the NHS body for the purposes of the council’s functions. Such an officer, when carrying out the council’s functions, is treated for LGSCO 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.
4.8 Coroners
The coroner is an independent judicial office holder (and not a local authority employee). They are appointed and funded by the local authority. The council must secure provision of staff and accommodation for that area unless they are provided by the local police service. Complaints about the way the coroner or their staff handled an investigation can be made to the coroner, and to the council that funds the service. Current MOJ guidance indicates people can then, if dissatisfied, ask us to investigate the way the council dealt with the complaint.
Full details on our jurisdiction are set out in the coroners subject guidance page. This explains that in practice we have no jurisdiction to investigate most complaints about coroners. And for the limited areas we could investigate, we should usually use our general discretion in s24A(6) not to do so because we cannot investigate the core issue (decision making by the coroner).
In the past we have sometimes investigated complaints about the actions of coroner staff who are funded by the council. But when undertaking tasks on behalf of the coroner, as part of the coroner’s statutory functions relating to coronial investigations, coroner’s officers are exercising the coroner’s functions, not those of the council. We cannot therefore investigate complaints about these actions.
4.9 Councillors
The actions of councillors can be investigated in the light of s25(4)(a) of the 1974 Act which says that:
“Any reference to an authority to which this Part of this Act applies includes a reference to the members and officers of that authority”
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. Examples of actions that are within jurisdiction include:
- actions in committee meetings, e.g. failure to declare an interest or providing misleading information;
- acting as an executive member with decision-making powers
- giving a decision on an admin function that they do not have the authority to give
- speaking on behalf of the council, for example at a public meeting explaining proposals for a new road scheme;
- 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.
4.10 Complaints that the councillor has breached the Councillors Code of Conduct
Such complaints can be considered by a council’s monitoring officer and may then be referred to the standards committee.
If the councillor’s action is not in jurisdiction the position is straightforward: the complainant should be referred to the monitoring officer. We could then look at a subsequent complaint about the Monitoring Officer’s handling of the issue.
If the councillor’s action is in jurisdiction and the complaint has been considered by the council we can look both at the way the council considered the complaint and, if we find this to be faulty, the actions of the councillor.
A complaint that a councillor’s conduct breached the council’s code of conduct is 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.
As in all cases, the person complaining must have suffered injustice as a result of the councillor’s action/s.
If the councillor’s action is in jurisdiction, but the complaint has not been considered by the monitoring officer or standards committee we need to decide if this would be appropriate. We need to weigh up the alleged fault, the injustice, if the council would prefer to look at the matter itself first and the remedy the complainant wants before deciding if we should investigate.We can decide to investigate complaints brought by a councillor concerning a council’s decision regarding the Councillor code of conduct. The Act’s definition of ‘member of the public’ (s26(A)) does not exclude complaints brought by councillors from our jurisdiction. They must though be able to show they (or those they are authorised to complain on behalf of) have sustained injustice in consequence of the matter. Further advice is set out in the Intranet guidance on standards and member conduct.
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 a brawl in a pub.
4.11 Contractors or other authorities acting for the body in jurisdiction
Contractors or other authorities acting in the exercise of the administrative functions of a body in jurisdiction are acting “on behalf of” that body and are therefore within jurisdiction.
Most councils now contract out many functions, including benefit administration, refuse collection, social care provision at home and in care homes etc.
Where the whole or part of a council’s function has been contracted out to another body by the council 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?
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 manager.
Even if the service has been removed from the council and some other authority or body has taken it over (eg in Doncaster in 2014 when the Secretary of State removed services from the council) it should be assumed that the actions of the new body are actions of the council and the complaint is therefore IN jurisdiction.
4.12 Civil enforcement officers (also known as bailiffs)
Civil Enforcement Officers can take action to recover all kinds of debts, including unpaid taxes, rates, fines, child maintenance payments and rent, as well as evicting people. They can work for the courts as well as local authorities. Actions of Civil Enforcement Officers recovering local taxation, road traffic or parking debts for a local authority are within jurisdiction, as they are acting directly for a council.
Bailiffs appointed and employed by the County Court or High Court to collect other debts or conducting evictions are not within jurisdiction, even if it is a council which started the action, as the bailiff is operating for the court, not a council.
CIVEA (the Civil Enforcement Association) was formed in 2010 by a merger of The Bailiff Services Association and the Association of Civil Enforcement Agencies. It is an independently funded association formed to represent all private certificated enforcement agents in England and Wales. Not all enforcement agents are members of CIVEA. A complaint about a civil enforcement officer who is not council appointed may be referred to the Association.
4.13 Councils subject to Government intervention
Government retains powers under section 15 of the Local Government Act 1999 to issue a direction to:
- carry out a review of the council’s functions
- direct it to take any action necessary and to
- exercise specified functions of the council or do so through nominated persons
Typically this happens when audit reports have highlighted significant or systemic failures such as budget setting and decision making. It means the Secretary of State can take control, either directly or through a nominee of some or all of the functions of the elected members (councillors) of the council. Nominees taking over responsibility may be called ‘Commissioners’.
What happens during the period of intervention depends on local circumstances. Commissioners typically work with council officers and members to address the problems identified. Commissioners are ‘prescribed persons’ under whistleblowing legislation. This means employees can disclose issues to them confidentially.
Commissioners take on certain powers and functions and can return functions to the council when the secretary of state considers it appropriate. Sometimes functions are returned together and sometimes piecemeal.
Almost all complaints about councils subject to these interventions will still fall in our jurisdiction. Day to day council functions continue to be administrative functions of that council. Exceptions may be when complaints are about the personal actions of the commissioner or secretary of state. Investigators should discuss complaints which appear to be of this nature with their Assessment Manager or Assistant Ombudsman.
Children’s Trusts are a similar form of intervention, often set up under Government encouragement to run services for vulnerable children/families where auditors/commissioners/government has identified problems with current arrangements.
Children’s Trusts are not for profit bodies, owned by the relevant council, operating at arms length under the control of an independent Chair and Board of Directors.
As council-owned organisations Trusts appear to be acting on behalf of the council. The council has ultimate responsibility, even though the trust may describe its actions as ‘operationally independent’. We should consider the actions of the trust as being actions of the council. Where they encounter challenge to our jurisdiction, investigators should discuss such complaints with their Assessment Manager or Assistant Ombudsman.