10.1 Part III Schedule 5 – Matters not subject to investigation

1 The commencement or conduct of civil or criminal proceedings before any court of law.

2 Action taken by or on behalf of any [police] authority in connection with the investigation or prevention of crime.

3

(1) Action taken in matters relating to contractual or other commercial transactions of any authority to which Part 3 of this Act applies relating to –

(a) the operation of public passenger transport;

(b) the carrying on of a dock or harbour undertaking;

(c) the provision of entertainment;

(d) the provision and operation of industrial establishments;

(e) the provision and operation of markets.

(2) Sub-paragraph (1) does not include transactions for or relating to –

(a) the acquisition or disposal of land;

(b) the acquisition or disposal of moorings which are not moorings provided in connection with a dock or harbour undertaking.

(3) Sub-paragraph (1)(a) does not include action taken by or on behalf of the London Transport Users Committee in operating a procedure for examining complaints or reviewing decisions.

(4) Sub-paragraph (1)(e) does not include transactions relating to –

(a) the grant, renewal or revocation of a licence to occupy a pitch or stall in a fair or market, or

(b) the attachment of any condition to such a licence.

4 Action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters.

5

(1) Any action taken by a local education authority in the exercise of functions under section 370 of the Education Act 1996 or section 17 of the Education (No 2) Act 1986 (secular instruction in county schools and in voluntary schools).

(2) Any action concerning--

(a) the giving of instruction, whether secular or religious, or

(b) conduct, curriculum, internal organisation, management or discipline, in any school or other educational establishment maintained by the authority except so far as relating to Special Educational Needs (within the meaning given by section 312 of the Education Act 1996).

5A

Action which—

(a)  is taken by or on behalf of a local authority in its capacity as a registered provider of social housing, and

(b) is action in connection with its housing activities so far as they relate to the provision or management of social housing (and here “social housing” has the same meaning as in Part 2 of the Housing and Regeneration Act 2008).

5B

In the case of a local authority which is a registered provider of social housing, action taken by or on behalf of the authority in connection with the management of dwellings owned by the authority and let on a long lease (and here “long lease” has the meaning given by section 59(3) of the Landlord and Tenant Act 1987).

 

6 Action taken by or on behalf of an authority mentioned in section 25(1)(ba) [or (bb)] of this Act which is not action in connection with functions in relation to housing.

7 Action taken by or on behalf of an authority mentioned in section 25(1)(bd) of this Act which is not action in connection with functions in relation to town and country planning.

8 Action taken by or on behalf of the Homes and Communities Agency which is not action in connection with functions in relation to town and country planning.

10.2 Caselaw - complaints about complaints where we cannot look at the substantive matter

The courts have confirmed our wide discretion, (under section 24A(6) of the Act) to decide what to investigate and what not to investigate. This might include deciding that it is not worth the cost of an investigation into how a body investigated a complaint where we cannot look at the underlying issues of that complaint. This is likely to be because of an absolute bar under schedule 5. So whilst the council’s investigation of such a complaint is likely to be an administrative function under part III of the Act, the substantive matter complained about is something we could not consider (because of an absolute bar under Schedule 5). So we can decide not to investigate  under 24A(6) for example because of the cost of investigating where we cannot achieve a meaningful outcome.

In R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)) the court supported our decision not to investigate a complaint about how a council investigated a complaint about events at a school.  

For example:

Mr M complains the council has not properly investigated his complaint about how a headteacher mistreated his son. He wants the school to apologise and for appropriate action to be taken against the staff. We cannot investigate these actions of the headteacher – discipline is specifically referenced by Schedule 5 paragraph 5. Although we could consider the council’s consequential actions we are likely to decide not to investigate this complaint because we cannot look at the substantive issue (what happened in school) or achieve the outcome.

Miss X complains about how the police and crime commissioner has investigated her complaint about the actions of police officers when responding to her report of crimes. She wants the office to make the police take her concerns seriously and deal effectively with crime in her area. Although the PCC is within our jurisdiction, the underlying matter – action taken by a policing body in connection with investigation/prevention of crime is covered by schedule 5 paragraph 2. We are likely to decide not to investigate because we cannot look at that substantive issue (actions of police officers) or achieve the desired outcome (police carrying out a proper investigation).  

10.3 Part IIIA Schedule 5A

A matter which could be the subject of an investigation by a Local Commissioner under Part 3.

A matter which could be the subject of an investigation by the Health Service Commissioner under the HSCA 1993.

The commencement or conduct of civil or criminal proceedings before any court of law.

Action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters.

10.4 Generally

Schedule 5 lists the matters which are specifically excluded from our jurisdiction. There are, of course, other restrictions, particularly in s26(6). The main items in schedule 5 are:

commencement of court proceedings;

matters concerning the investigation and prevention of crime;

specified contractual or other commercial transactions;

personnel matters, and

certain educational matters.

Each of these will be considered in turn

10.5 Sch 5 Para 1 The commencement or conduct of civil or criminal proceedings in any court of law

The exclusion of court proceedings from the Ombudsman’s jurisdiction was intended to prevent us considering those matters decided by the courts using different evidential standards, and applying the different test of legality as opposed to maladministration. We cannot criticise a council for deciding to take legal action, or consider any complaint about the way litigation was conducted. Any such criticism would be for the court, which may also issue sanctions and make awards of costs.

But there is no prohibition of an investigation about whether a council acted with fault upstream prior to starting court proceedings, without which the court proceedings could potentially have been avoided. Any decision as to whether action taken prior to the commencement of proceedings is potentially within jurisdiction will be fact sensitive.

What is a court?

Applications dealt with by a single magistrate, for example certain warrants for entry that environmental health officers seek are before a court of law (s148 Magistrates’ Court Act 1980 and s 5 and schedule 1 Interpretation Act 1978). This will always be the case unless the Act giving the Magistrates the power to act states otherwise.

A tribunal is not a Court of Law. (But s26(6) precludes an Ombudsman from deciding the same issue which went to the tribunal).

A coroner’s court also does not fall within the definition of a court for schedule 5.1.

A council carrying out an interview under caution, using powers under the Police and Criminal Evidence Act (PACE) is not a court. It is carrying out an administrative function and Schedule 5 does not prevent us from investigating if there was fault in it carrying out the interview. However, we cannot criticise a council for deciding to take legal action as any such criticism would be for the court to make.

For complaints about PACE interviews, we will need to exercise care to consider each case on its merits. The relationship and interconnectedness between the complained about actions and any subsequent court action will need to be considered. Seeking casework manager advice as appropriate.

These matters are OUT of jurisdiction

The issue of the writ/summons in the civil court or the laying of an information in the Magistrates’ Court (this is “commencement”), and any prior actions taken by a council specifically directed at deciding whether to issue proceedings.

Action by court bailiffs (unless they are acting as agents of the authority – (see below).

The preparation, collation, and analysis of evidence, including reports written by social workers or other officers for court proceedings (or the use of a report written previously, in subsequent court proceedings) and evidence given by council officers in any proceedings (this is “conduct” of proceedings). If a report had been submitted as part of a court process but had been so peripheral as to have had no significant impact on the substantive matters considered by the court, we might take the view that the report was not part of the conduct of proceedings. In such a case we might consider the content that report as part of an investigation, but only where the subject matter of the complaint is not the court proceedings themselves.

The council allegedly failed to advise the complainant of their rights prior to carrying out a PACE interview. It decided to prosecute the complainant. OUT because administrative process leading up to council decision is not distinct and separable from the decision to commence proceedings and the court can consider decision to take legal action.  

These matters are IN jurisdiction

• The administrative process leading up to the council’s decision to commence proceedings, provided the process is clearly distinct and separable from the decision to commence proceedings itself.
• Certain actions or inactions before the issue of the writ/summons/laying of information, which are not specifically directed at informing the council’s decision as to whether or not to issue proceedings.
• The council’s failure to consider a prosecution (e.g. for non-compliance with an enforcement notice or breach of an abatement order).
• Bailiffs acting as agents for the council (e.g. to recover council tax).
• A council’s conduct at an inquest.
• The council allegedly failed to advise the complainant of their rights prior to carrying out a PACE interview. The council took no action as a result of the interview. IN but unlikely to investigate because of limited personal injustice arising from fault.
• The council should have used a PACE interview, cautioning them as appropriate. It’s failure to do so meant they missed out on the procedural safeguards afforded by PACE.

Example

• The Council issued a summons then obtained a liability order for a council tax debt. The complainant agrees that the amount demanded is correct but complains about the way the council’s bailiff went about collecting the money. IN but only in respect of the way the debt was recovered. The existence of the debt is OUT (and was probably appealable).
• A parent complains they had unsuccessfully been seeking support for their school phobic child for a number of months, and that the Council later attempted to prosecute them for non-attendance.  The court dismissed the application.  Whilst we may be able to look at the way in which the Council responded to requests for support prior to seeking the prosecution, we may not consider the court proceedings or use the Court’s decision to conclude that proceedings should not have been instigated.    

10.6 Sch 5 para 2 Action taken by or on behalf of any policing body in connection with the investigation or prevention of crime

Police and Crime Commissioners and the Mayor’s office for Policing and Crime (London) are bodies within jurisdiction (see chapter on is the authority in jurisdiction) but only their administrative actions are subject to investigation. Complaints about operational matters, such as how a crime was or was not investigated and about crime prevention are excluded from jurisdiction, as are complaints against individual police officers. Such complaints should be referred to the relevant policing body or to the Independent Office for Police Conduct.

Note, councils can in some circumstances interview people under caution using powers from the Police and Criminal Evidence (PACE) Act. This is covered in 10.5 above. But councils, when doing so, are not acting as a ‘policing body’ so this part of the Act does not apply.

Examples

• A police officer carrying out a child protection investigation of alleged physical and sexual abuse asked a teenage girl questions about her sexual experience. The parents complained about the manner of questioning – OUT
• A social worker mistakenly suspected a mother of giving a child an overdose and contacted the police. A police officer interviewed the mother. The child was in fact gravely ill, taking medication under proper medical supervision. The mother was deeply distressed by the police contact. The actions of the police officer were OUT. (However the social worker’s actions would be IN).

10.7 Sch 5 para 3 Contractual and commercial transactions

Paragraph 3(1) first lists the contractual or commercial matters that are not subject to investigation. They are transactions relating to:

(a) the operation of public passenger transport;

(b) the carrying on of a dock or harbour undertaking;

(c) the provision of entertainment;

(d) the provision and operation of industrial establishments;

(e) the provision and operation of markets (but this is qualified by paragraph 3(4)

It follows that any other contractual or commercial matters are subject to investigation. Paragraph 3(2) qualifies some of the exclusions in para 3(1) by specifically providing that transactions relating to the following are IN jurisdiction.

• the acquisition or disposal of land;
• the acquisition or disposal of moorings which are not moorings provided in connection with a dock or harbour undertaking.
• the grant, renewal or revocation of a licence to occupy a pitch or stall in a fair or market, or
• the attachment of any condition to such a licence.

There is no definition of ‘commercial transactions’ provided for in the 1974 Act. However, we take the view that a commercial transaction (contractual or otherwise) is usually one which involves the buying or selling of merchandise or services with a view (at least on the part of the party to the transaction which is not a public authority) to making a profit. Legal advice on this matter can be found here.

When determining whether a transaction is ‘commercial’ what needs to be considered?

The question whether a transaction is ‘commercial’ is a matter for our judgement on the individual facts. Only at the limits, where it can be said that no reasonable business person would treat the subject matter as commercial, is there a serious risk of judicial intervention.

The key question in determining whether a contract or other transaction is ‘commercial’ in character is whether it is the sort of transaction that could be expected to feature in the ordinary dealings of business people.

The making of a charge by an authority for the provision of a service will not make the provision of that service a commercial transaction, even though a contract between a member of the public and the authority has been entered into. It is significant commercial transactions entered into by companies or large organisations that are out of jurisdiction, not things like a ticket for a bus journey. Both the authority and the contracting party have an equal bargaining position and if there is disagreement about the terms of the commercial contract, this can be referred to the court.

The exercise of regulatory functions etc. should not be regarded as a ‘commercial’ activity nor should activities that are administrative in nature.

It will often be helpful to ask whether the transaction reflects a ‘local authority/ordinary citizen’s relationship rather than, for example, a buyer/seller one.

Traditionally, where a relationship between a public body and those dealing with it involves rights and obligations created by legislation, the courts have traditionally been slow to infer an intention to form a contract or commercial relationship.

In some circumstances purely ‘professional’ activities might not be treated as ‘commercial’ but the procurement of professional services (accountancy, legal, etc.) in the ordinary course of business probably would be.

An action does not become ‘commercial’ solely because it is made with a business motive. Commercial organisations habitually make gifts, donations, endowments, etc. which are not themselves ‘commercial transactions’ even if rooted in a desire to enhance the goodwill and public reputation of the business. So a ‘gratuitous transaction of a kind commonplace in the commercial world’ would not be made ‘commercial’ merely because there is a sound commercial reason for it.

The Ombudsman does not have jurisdiction to investigate complaints about commercial transactions relating to the operation of passenger transport. This is mainly to stop us investigating complaints brought by one transport operator about how the council has awarded a contract to another operator which is a matter best left to the courts. That type of complaint would be about a buyer/seller relationship, rather than the local authority/ordinary citizen one we are normally concerned with.

Complaints about council decisions relating to commercial transactions about the provision of passenger transport are not excluded from our jurisdiction. When deciding whether a complaint about passenger transport is in jurisdiction we therefore need to consider firstly, whether the matter complained about concerns a “commercial transaction” and if so, whether it concerns the “operation” of passenger transport or the “provision” of passenger transport.

To explain further, a transport operator may make decisions, for example, about subsidised route changes, and may inform the council about them. That, in itself, does not mean complaints about those decisions are in our jurisdiction. But the council, in accepting those changes, should be expected to have regard to relevant policies, for example around equality impact and consultation. A complaint about a council’s decision not to consult local residents about a route change, where the complaint is concerned about how the council had regard to policies is therefore likely to be in jurisdiction. It is the council’s actions that are being called into question. Those actions are not a commercial transaction, though they likely relate to, and have been triggered by a commercial transaction between the council and operator.

Similarly a complaint about the way the council dealt with a planning application for a new bus garage is a complaint about the exercise of planning powers and is within jurisdiction. So too, is a complaint about the placing of bus stops and bus shelters where these decisions have been taken by the council.

Action taken by or on behalf of the London Transport Users Committee in operating a procedure for examining complaints or reviewing decisions is explicitly brought into jurisdiction by sch 5 paragraph 3(3).

Examples

• Ms D filled in the application forms for an Oyster Card for her child and sent them to Transport for London (TfL) who acknowledged receipt but then lost the forms. IN because this is not a transaction relating to the “operation” of public passenger transport” but one for the provision of concessionary fares.
• Mr E complained the Council’s contractors have repeatedly failed to follow the night time working restriction in the construction of the tram link that will adjoin his property. IN because this is not the “operation” of public passenger transport but construction of the tramlink.
• Company H takes over the operation of a council’s school transport services. As part of the contract, Company H is required to use existing council-owned coaches but says that some are unsafe. OUT because this is a contract relating to the operation of public passenger transport.
• Ms X complains the Council failed to follow its policy to consult local residents when a bus company providing a subsidised service told the council it was going to change its route. Mr X says as a result he did not know about the change and was not able to raise his concerns the loss of service would impact on him. This would be IN jurisdiction as the matter complained about is not a commercial transaction relating to the operation of passenger transport. The council’s acceptance of the route change proposal is likely to be a commercial transaction relating to the operation of passenger transport. But the council’s decision about whether to consult is a normal administrative function and therefore within our jurisdiction.

Docks and harbour undertakings

Some councils are harbour authorities and have responsibility for the operation of ports and piers located within their area. Contract and commercial transactions relating to the carrying on of these responsibilities are OUT. But transactions for moorings which are not part of such undertakings are IN under para 3(2).

Examples

• Company F contracts to take over the running of a local dock and harbour and objects to the way the council has interpreted and enforced a term in the contract. OUT - this is the carrying on of a dock or harbour undertaking.
• Mr A negotiated with the authority for a mooring for his boat having been assured that he would be allocated one with a water supply alongside, as he is disabled. Shortly after he took possession the authority moved the water supply to some distance away.(IN because this is specifically included by para 3(2).

Provision of entertainment relates to theatres, concert halls etc where the provision is made by the council. It does not apply to sports activities or to the council’s action in respect of the hiring of halls, meeting rooms etc.

Example

• A charity has booked a local authority venue to hold a series of concerts which are open to the public and for which they have produced a large number of wristbands for sale. Having finalised the contract the council now says the music must be turned off by 21:30. OUT because this is a contractual transaction relating to the provision of entertainment).

Markets and fairs

According to case law, a market is a gathering of buyers and sellers at regular intervals in a fixed place. Markets are sometimes authorised by local Acts or a Royal Charter to be held in a specific place. It may be necessary to find out the status of the market from the authority before coming to a decision whether the complaint is within or out of jurisdiction.

A car boot sale is a market (Newcastle v Noble (1990) 89 LGR 618).

Street trading licences are IN. They are issued under the Local Government (Miscellaneous Provisions) Act 1982. The licence may be subject to specific conditions relating to the particular trade in question and general conditions which flow from a council’s general policy on street trading.

Temporary markets are OUT. They may be authorised by the Local Government (Miscellaneous Provisions) Act 1982 s 37. The Act relates to district and London borough councils. The person intending to hold a temporary market and the owner of the land have to give one month’s notice to the council for it to be authorised. This provision only applies where the council has resolved that this section of the Act will apply and given notice of it in the local newspaper.

A complaint by a market trader about the way a council decided to increase the number of stalls or the trades allowed is not a complaint about a market, but it is a complaint “relating to the grant ... of a licence” and is, therefore IN.

Street trading not in a market is IN. The public may refer to street trading as a market but this is not necessarily the case and the status of the ‘market’ should be checked.

Pleasure fairs (circuses, merry-go-rounds, coconut shies and hooplas) are IN. They may be authorised by local authority bye-laws made under the Public Health Act 1961 s 75.

Examples

Security Company G enters into a contract with the council to provide 24-hour security and surveillance over its market facilities. After 6 months, the council exercises its break clause which Company G says is in breach of the contract. OUT - this is a contract for the operation of markets and specifically excluded.

Mrs B has been served with notice to end her licence to occupy a market stall because the authority says she has failed to pay the monthly fee. Mrs B says she has paid regularly by standing order but the authority has credited this to the wrong account. IN - market stall licences are specifically ruled IN by para 3(4).

Transactions for or relating to the acquisition or disposal of land are specifically ruled IN.

Land includes buildings used for entertainment, markets etc.

Disposal of land is governed by s123 of the Local Government Act 1972. This permits local authorities to dispose of land “in any manner they wish”. Therefore transactions relating to disposal of land should be interpreted widely and as well as an option and a sale of land, leases/tenancies, easements, mortgages and licences would be IN. So, too is a licence to assign a lease on the basis that it is a transaction relating to a lease. Acquisition of land should also be interpreted widely.

A Department for the Environment Transport and the Regions (DETR) Circular and Guidance (06/93: Disposal of land for less than the best consideration that can reasonably be obtained - Guidance for Authorities; WO 19/93) give guidance to councils on when, exceptionally, they propose to dispose of land for less than the best consideration that can be reasonably obtained and must apply to the Secretary of State to do so. Reference should be made to this when considering complaints about disposals of land for less than the market value. Some of the guidance has been cancelled by “The Local Government Act 1972 General Disposal Consents 1998 by means of an unnumbered DETR Circular letter of 11 December 1998. See Planning Portal and circular for further information.

Example

• Company X, a local amateur dramatic society, booked the authority’s theatre for a public performance but the authority then advised it had double booked the date causing the company to have to cancel the performance at the last minute. IN because a transaction for the provision of a building is a transaction relating to the disposal of land

10.8 Sch 5 para 4  Action taken in respect of appointments, removals, pay, discipline, superannuation or other personnel matters

This exclusion reflects the principle that the Ombudsman is intended to deal only with relationships between government and the governed, and not with the action of bodies in jurisdiction as employers. We interpret this part of Schedule 5 to be about the employee/employer relationship.

To be excluded by this provision, the action complained about must be in respect of the specific type of personnel matter mentioned in paragraph 4 of schedule 5, ie appointments, removals, pay, discipline and superannuation or some similar personnel matter.

The personnel connection must be with the authority, eg the actions of a social worker who helps a complainant at an employment tribunal in a case against the complainant’s employer is not excluded from jurisdiction.

 A complaint about the behaviour of a council officer is NOT a complaint about a personnel issue and is therefore IN. This applies even if the complainant may say they wish the council to sack the officer or take other disciplinary proceedings. There may be grounds in some cases to suspend consideration of the complaint to allow another procedure (police investigation, disciplinary action etc) to happen.

If a complaint is specifically about the organisation’s decision not to take disciplinary (or other personnel) action, although this may be caught by Schedule 5, we should be careful to ensure we properly consider whether an underlying complaint is about administrative actions that fall under part III of the Act. Where the only matter complained about is alleged failure to take disciplinary action this would often stem from an underlying complaint from a member of the public about administrative action which would therefore be in jurisdiction. We should therefore generally use our discretion under s24(6) because we cannot achieve the desired outcome.

For example: Mr X complains the council has refused to sack a social worker involved in the care of his son. He says the officer was constantly late, wrote poor records and failed to keep in touch with them about the case.

In that case, although the complaint appears to be about the council’s refusal to take personnel action, the underlying complaint is about administrative actions of the council and therefore squarely in jurisdiction. We would need to manage expectations around what we could achieve. If Mr X is adamant the only point in him pursuing the complaint is to make the council take disciplinary action we might decide to close on general discretion as we cannot achieve this outcome. There is a more suitable organisation - Social Work England – to achieve the outcome Mr X wants.

In rare cases, a complaint may only be about alleged action/inaction taken by the organisation in respect of personnel matters. The underlying fault leading to the desire for disciplinary action may be accepted by the body and that matter be closed. The remaining complaint is just about the council’s actions to put things right. Here, even where the complainant is not an employee subject to such action, Schedule 5 is likely to be engaged: 

Example 2: Ms Y complains the council has not disciplined staff it accepts failed to keep them updated on their case. She wants it to discipline the staff so they understand how seriously their faults affected her.

Here the only matter complained about is alleged failure to take disciplinary action. The underlying matter – whatever the officers did or did not do to warrant disciplinary action is not the subject of the complaint. That matter is resolved. This is a complaint about action taken in respect of discipline and therefore out on Schedule 5. This is likely however to be an unusual occurrence.

NOTE: Complaints by foster carers are not excluded by this section: they are not employees.

Are complaints by volunteers 'personnel matters'?

It is arguable that an authority’s 'personnel' includes its volunteers. Volunteers are increasingly being used, directly or indirectly, to carry out council services.  We need to look carefully at the circumstances from complaints brought by volunteers to decide whether or not we can and should investigate them.

We are primarily concerned with the relationship between providers and recipients of local public services. The relationship between a BinJ and a volunteer is slightly different. Where people have given their time freely and feel they have been treated badly or a council has taken a different approach to their preference, they have the option to walk away from the role.

We should therefore generally not get involved in disputes between volunteers and the BinJ where the issues in contention have all the characteristics of a personnel matter. In such cases we should not investigate, using our general discretion under s24A(6), as such cases are so similar to something we do not have power to investigate (having regard to Schedule 5.4 and 5A.4).

In such cases we should normally follow the same approach as we would for Schedule 5.4 and 5A.4 closures, as set out in the Assessment Manual. This means we should not send the decision, details of the complaint or complainant’s personal details to the BinJ. We should instead send a decision letter to the BinJ telling it 1) we received a complaint that is about a matter so similar to a personnel matter that we have decided not to investigate it, 2) we are not investigating it, 3) we will not disclose details of this complaint and 4) we are telling them so their complaint numbers tally with ours. Remember to remove the PA details from the email to the BinJ covering the decision letter. Investigators should seek further advice from their manager if unsure about an individual case.  

Sometimes, however, complaints from a volunteer may have more of a public interest flavour, albeit played out through personnel type issues. For example, if a council tells several library volunteers they are no longer required because it has leased the space to a coffee company, and one or more of the volunteers complains to us about the council decision, saying there was no consultation. In such a case we might decide to investigate. This is because although the complaint is made by volunteers and their immediate injustice relates to loss of employment, the scenario goes beyond immediate personnel matters. It involves potential non direct injustice and public interest issues about how the council treats the voluntary sector and those who volunteer, the way it consults them and informs about policy changes, and the way it uses and manages community assets. More information can be found in section 11.4 - The injustice test. We might, in such cases, need to consider the existence of any ‘compact’ or similar policy governing the council’s relationship with the voluntary sector.

In deciding whether or not we can and should investigate a complaint from a volunteer we also need to consider the nature of volunteering involved. Where someone registers as a park warden, gardener or librarian, we should ask do they do so in anticipation of a quasi-employment relationship with the council, or as a good citizen, wanting to contribute to their community and own wellbeing? Is the complaint really about how they were treated as a quasi-employee, or as a member of the public who happens to do some good works. In the former case then the connection with the council is close to a personnel one, and should operate on those grounds, meaning we should probably not investigate it on general discretion. In the latter, the resident’s choice to become involved in an issue potentially increases their sense of injustice from any fault and we should probably investigate the complaint, having regard to all other normal tests.

The following examples illustrate how we should approach such complaints. If you are unclear about a particular case, please speak to your manager:

Example 1:

Miss X who was a volunteer for the Council at a largely volunteer run library complains it suddenly stopped her volunteering there for no good reason.  She says volunteering was really important for her mental health and so the council’s decision has upset her and made her unwell.  

It is likely we would decide not to investigate this complaint under our general discretion – 24(6) - as being about a matter so similar to something we cannot investigate under Schedule 5.

Example 2:

Mr Y who was a volunteer park warden for the Council complains it has removed facilities for disabled park users without the proper consultation with local disabled user groups causing them to lose out on valuable amenity. He also complains when he raised these concerns the council stopped him volunteering at the park causing him distress.

The decision to remove facilities without consultation is an administrative function we could investigate. Even if Mr Y did not suffer direct injustice (he didn’t lose the service) he could be said to have suffered non direct injustice. The Council’s decision to stop him volunteering is likely to be a matter so similar to one we cannot investigate under Schedule 5 that we would decide not to investigate that part of the complaint using our general discretion – s24(6)

Example 3:

Ms Z who volunteers as a parent at a council run children’s centre complains the Council has stopped her child from accessing the centre because of concerns about their disabilities. She says the Council has not considered making reasonable adjustments and if it had, her child could easily continue to access the valuable services they are now missing out on.

Although Ms Z is a volunteer, this does not appear relevant to the matter complained about. There is nothing to suggest the complaint is similar to a personnel matter and we should use our normal approach to discretion and therefore likely investigate it.

Are complaints by councillors about the conduct and outcome of member standards investigations ‘personnel matters’?

Councillors (and lay / co-opted members of council bodies) affected by a sanction following a council standards investigation are different from other types of employment relationships. The law doesn’t provide councillors with the same safeguards or other routes for redress as employees. This applies equally to councillors who are the subject of sanctions and those who have bought standards complaints. 

Councillors bringing such complaints to us therefore seem to do so as ‘members of the public’ as far as section 26A of the 1974 Act is concerned. They are not doing so as a ‘local authority or other authority or body’

We should therefore not use Schedule 5 to rule such complaints out of jurisdiction as ‘personnel matters’, or use s26A to say they are not members of the public.

We should, instead, consider whether to use our general discretion under section 24(6) not to investigate - where the claimed injustice is not significant, there is insufficient evidence of fault or where we are unlikely to add to previous investigations. Where we decide to investigate, whilst not an appeal body, we can look at the decision making process the council used.

Examples

• A council care home worker was dismissed when he blew the whistle about poor practices at the home – OUT
• A council officer was wrongly issued with a parking ticket and appealed. She complained about the parking enforcement officer’s insulting behaviour towards her. Her appeal was eventually allowed, but in the meantime she was put under pressure by her manager to pay the ticket to avoid embarrassment. The actions of the line manager were OUT. The conduct of the enforcement officer was IN
• A council care worker was assaulted by a service user and complained she received inadequate support from her employer – OUT
• The PA was homeless following domestic violence. She complained the housing officer was rude and abusive and did not deal properly with her application. The council investigated but she believes did not impose a harsh enough disciplinary sanction. The complaint about the treatment from the officer would be IN but the disciplinary action and sanction is OUT
• Ms P who is a district councillor complains the council has treated her unfairly in its investigation of a standards complaint made against her by another councillor. She says she has suffered serious distress and upset because of its unfair consideration of the matter – IN
  Ms P is not complaining as public body. She is (for s26A purposes) a member of the public who claims injustice in respect of the matter. This is also not (in a clearly cut way) out under Schedule 5 as a personnel matter (or so similar to one we should decide not to investigate using our general discretion).
• Mr J who is a district councillor complains the council has unfairly prevented him from accessing its premises as a result of sanctions it placed on him after investigating a standards complaint brought by another councillor. He says this has denied him access to carry out the duties he was elected to perform, affecting his constituents – IN
  Mr J is not complaining as a public body, nor is this a Schedule 5 personnel matter. He is a member of the public who claims injustice (albeit some of which is claimed of 3rd parties) in respect of the matter. We could investigate the council's decision-making process, including whether decisions about sanctions, were in accordance with it. We would consider our use of s24 general discretion about whether we should do so.

10.9 Sch 5 para 5 - Certain educational matters

Any action concerning:

• The giving of instruction, whether secular or religious; or
• Conduct, curriculum, internal organisation, management or discipline, in any school or other educational establishment maintained by the authority except so far as relating to special educational needs, whether in any school or other educational establishment maintained by the authority.
• Action by the local authority in matters other than those above, or action which relates to the exercise of a separate statutory function may be within jurisdiction. Examples of matters in jurisdiction are school admissions and school transport.

This paragraph rules out investigation of complaints about how and what pupils and students are taught and about the rules and conduct of the institution including the imposition of sanctions such as exclusion. The wording of schedule 5, paragraph 5 is wide. Legal advice has confirmed that anything described in paragraph 5 also applies to adult education classes run by a local authority, therefore a complaint about these actions in relation to adult education classes would also be outside jurisdiction.

The actions of a council dealing with a complaint about these matters is also OUT following the judgment of the High Court in R (on the application of ER) v CLAE and London Borough of Hillingdon [2014] EWCA Civ 1407 and R (M) –v- CLAE [2006] EWHC 2847. The Court in each of those cases rejected the submission that the LGSCO had jurisdiction to investigate the consequences of a decision if investigation of the decision itself was excluded by sch 5 or s26(6).

Complaints about Education Health and Care (EHC) Plans may be within jurisdiction, depending upon the nature of the complaint and the factual background. There are three vital tests which need to be applied to any action or lack of action in order to determine whether it is within jurisdiction. Failing any one test puts the action outside jurisdiction. The tests are:

• That the action relates to an administrative function of the council.
• That the action is taken on behalf of the council. We have no jurisdiction to consider a complaint against a school and/or about the exercise of a school’s own functions. However, we may be able to investigate matters within a school relating to special educational needs where the complaint is that the council (or person acting on behalf of the council) is at fault.
• That the action is not excluded by this schedule or any other exclusion, for example because it is a decision which has already been or which LGSCO considers could be appealed to the Special Educational Needs Tribunal.

Note: The jurisdiction of the First Tier Tribunal (Special Educational Needs and Disability) is explained in the chapter on alternative remedies.

Education admissions do not fall within the exclusion, because they are not about the internal management of a school or educational establishment. But we expect the person affected to appeal to the education admissions appeal panel first. Once they have done so, we can consider the actions of both the panel and the admissions authority.

We can consider complaints about admissions to nursery schools. But admissions to state run nursery schools are not subject to a statutory right of appeal (the School Standards and Framework Act 1998, Section 98(3)) and so independent appeal panels have no involvement.

Education exclusions: the LGSCO cannot consider the actions of the Head teacher or governors who made the decision to exclude but CAN consider whether there was fault by the review panel convened by the Local Authority. Exclusions from academies and free schools are OUT.

The actions of maintained schools are usually outside jurisdiction. But there may be some circumstances when the school’s actions fall within jurisdiction because they perform some administrative function of the council, which is not excluded by the schedule. Specifically, they are in jurisdiction when dealing with admissions or the admission appeal process or performing an administrative function of the council in SEN cases.  This includes when they are acting on behalf of the council to secure provision of SEN as set out in Section F of the young person’s EHCP. The position is the same for foundation or voluntary aided schools.

It should, however, be noted that when a school makes SEN provision it does not necessarily do so on behalf of the council.

Where we investigate the actions of the school as part of a complaint against the council, and find fault, we make our findings of fault against the council.

The position may also be the same in the case of appeals relating to exclusions, although schedule 5.5 “any action concerning discipline” is usually likely to rule this out.

Academies and free schools are outside jurisdiction. The only exception is where the action complained of was taken before the school became an academy and continued afterwards. Then, the actions of the academy can also be considered. However we cannot make recommendation to the academy. Any recommendation we might wish to make must go to the Education Funding Agency for consideration and implementation. Appeals against admission decisions and exclusions from an academy are heard by the Academy Trust which are also outside jurisdiction.

The following examples are OUT

• A complainant said that his child had been bullied in school and that the school had not dealt adequately with his complaint – OUT. (He should complain to the school, which should be able to provide him with a copy of its written complaints procedure. If the school fails to do so, he should then contact the LA (if it is a maintained school) which has a role in ensuring that schools’ complaints procedures operate effectively).
• The head teacher gave a parent misleading information. If this is general information about the school, curriculum, discipline etc, it would be OUT, but if it was in connection with an application for admission; an exclusion appeal; availability of school transport; or a statement of special educational needs then it may be in jurisdiction.
• A teacher was rude to a parent/child.
• The child was punished inappropriately (but not excluded).
• The complainant’s daughter has an Individual Education Plan but the provision has not been made. She does not have a statement of special educational needs.
• The complainant’s child has not been included in the school’s provision for gifted and talented children.
• A complainant said that his child had not received suitable provision for his special educational needs. During the first year he was at school, he had not been placed on an EHC Plan and the complainant felt the school had delayed unreasonably in recommending to the council that a statement should be considered. OUT, including the alleged delay in referring the child for statementing. The parents had the right to approach the council themselves and did not need to wait for the school.

But these would be IN:

• The council delayed in issuing a EHC Plan.
• The complainant says the council wrongly refused to fund transport to his school which is unreasonably far from home.
• The complainant says the transport provided to his daughter’s school is unsuitable: children are allowed to misbehave on the bus and she is too frightened to use it.
• The council did not allocate the complainant’s child to her preferred school and her appeal against the decision was mismanaged (we can look at the way the appeal was handled and at whether the council properly allocated school places).
• The school has permanently excluded the complainant’s son and the appeal panel did not consider information which would have been in his favour. The council has not found him an alternative school place.

10.10 Sch 5 para 5A/5B Actions taken by a local authority in connection with its housing activities as they relate to the provision and management of social housing

The majority of complaints about an authority’s registered social housing function will be dealt with by the Housing Ombudsman. We can look at an authority’s actions in relation to:

• Housing allocations under the Housing Act 1996 Part 6
• Homelessness under the Housing Act 1997 Part 7
• General housing advice
• Housing improvement grants
• Antisocial behaviour and noise nuisance
• The sale of disposal of land on housing estates
• Planning and building control at properties owned by a social landlord
• The delivery of adult social care services, including those carried out by a registered social landlord.

Further detail can be found in the Memorandum of Understanding.

10.11 Other exclusions (less likely to feature in complaints) in sch 5

Para 6

Action taken by or on behalf of a development corporation established for the purposes of a new town, but not action relating to their housing functions.

Para 7

Action taken by or on behalf of an urban development corporation but not action relating to their town and country planning functions.

Para 8

Action taken by or on behalf of the Homes and Communities Agency which is not action relating to their town and country planning.

10.12 Part IIIA complaints Schedule 5A

Schedule 5A prohibits the LGSCO from investigating a complaint under part IIIA if

The complaint could be investigated under Part III.

The complaint could be the subject of an investigation by the Health Service Commissioner under the HSCA 1993.

The complaint relates to the commencement or conduct of civil or criminal proceedings before any court of law.

The complaint is about action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters.