26. Jurisdiction and decision making

Assessment will normally already have determined whether there is jurisdiction to investigate the complaint and will have made an initial assessment of fault and injustice. 

Investigators may come to their own fresh decision on jurisdiction in the light of new or clarified information. The latest Guidance on Jurisdiction will help with those decisions. The Assessment Code is a useful guide to fault and injustice. Please also see the Casework Guidance Statements and Remedies Guidance.

We use the plain English term ‘fault’ to describe our formal findings of maladministration and/or service failure. Fault is not a lesser failing than maladministration, simply a more accessible way of describing it for the public. Service failure and maladministration are distinct legal concepts in our legislation, but they are closely related and overlapping. The courts have made clear that we do not need to investigate them separately, and provided we present our findings clearly, we should not need to go into detailed explanations of the differences. 

We must explain any exercise of discretion and rationale for doing so. The courts have stressed the importance of properly considering and documenting our reasoning for discretionary (and therefore challengeable) decisions of all kinds. This can be done either in the decision statement itself or in Notes & Analysis. Often our standard paragraphs will provide enough clarity about the basis for a decision but we need to ensure we then explain how we have applied it to the facts at hand. It is up to the Investigator in the case to decide whether it is necessary to set out our thinking in the decision statement itself or in Notes & Analysis. For example, a decision whether or not to issue a report is almost always more appropriately left for Notes & Analysis, whereas a decision not to investigate part of a complaint because it is late should be set out in the decision statement. More on this case be found in the Decision Statement Manual.

Our decisions are made on the balance of probability (‘more likely than not’). Neither party has to prove what happened using the criminal standard of ‘beyond reasonable doubt’. Nor do we have to be ‘certain’ to reach a conclusion. We should not apply tests of wholly or utterly or Wednesbury unreasonableness and should not describe our final conclusion on the BinJ’s actions in terms of reasonableness, but in terms of fault (or otherwise). The Guidance on Jurisdiction contains explains more about making balance of probabilities decisions. 

Maladministration may also be a breach of the complainant’s human rights. It is for the courts to determine whether human rights have been breached, but the Ombudsman may conclude they have been engaged. There is general guidance explaining our approach to human rights in casework available on the intranet.

Detailed guidance on applying our powers under section 26D of the Local Government Act is set out in this casework guidance policy note.