Examination of Witnesses (Questions 40-59)
15 MARCH 2005
MR JERRY
WHITE, MRS
PATRICIA THOMAS
AND MR
TONY REDMOND
Q40 Chairman: How can a member of the
public expect that the Deputy Ombudsman would judge against his/her
boss?
Mr White: The Deputy Ombudsman's
role is to look at a complaint about a member of staff. A complaint
about me, in terms of the way I have made my decision, can only
be made to the High Court.
Q41 Chairman: But that is not what the
Deputy Prime Minister says.
Mr Redmond: First of all, most
of the investigations of complaints are undertaken by investigators,
not by the Ombudsman, the Assistant Ombudsman or the Deputy Ombudsman.
The internal complaints procedure we operate is that we will then
have a senior member of staff review that and if that, in turn,
does not satisfy, it could be reviewed by the Ombudsman him or
herself. If there is a complaint against the Ombudsman, the Ombudsman's
decision can only be challenged through the High Court. The vast
majority of our decisions are, in the first instance, made by
our investigators.
Q42 Chairman: When a report is finalised
and published it is usually the Ombudsman that signs it off, is
it not?
Mr Redmond: Yes.
Q43 Chairman: So if the person who has
made a complaint is not satisfied that that report has been carried
out fully and in the best interests of the complainant and makes
an allegation that the Ombudsman who signed it off is in their
opinion guilty of maladministration, what happens then?
Mr Redmond: It is a matter for
the High Court.
Q44 Chairman: That is not what the Minister
for Local Government says. The Minister for Local Government says
that anyone who has a concern about the outcome of their complaint
to the Ombudsman or the manner in which the complaint has been
dealt with by the Ombudsman's staff can contact the Ombudsman's
office and the matter will then be considered by senior members
of staff, usually the Deputy Ombudsman. If the concern is about
the action of the Ombudsman himself, the matter would be considered
by the Ombudsman and if there is a failure to satisfy it it then
goes to court.
Mr Redmond: Yes.
Q45 Chairman: How can anyone think fairness
is being applied when the Deputy Ombudsman is going to judge it?
Mrs Thomas: That is not right.
Mr Redmond: That is misleading.
The Deputy Ombudsman will be involved if there has been a complaint
against an investigator who has investigated the complaint, because
the Ombudsman does not deal with the vast majority of complaints
himself.
Q46 Chairman: The question to the Deputy
Prime Minister was fair, ". . . to ask the Deputy Prime Minister
which body is responsible for dealing with complaints against
the Local Government Ombudsman", and he said, "Well,
in the first instance it should be investigated by the Deputy
Ombudsman."
Mr Redmond: I think it is the
Local Government Ombudsman as an institution because the decisions
are taken at different levels within the office.
Mr White: What it means is the
Local Government Ombudsman's service and then, if you have got
complaints about it, they can go up to the Deputy Ombudsman. You
are quite right, the Deputy Ombudsman cannot investigate me.
Q47 Chairman: And the Ombudsman cannot
investigate himself.
Mr White: No.
Q48 Chairman: That is what it suggested
in the reply. The point I am making is that if we want to convince
people that what the Ombudsman has done is fair then this kind
of thing has got to be above any suspicion that there is an internal
issue and the only way is to take the matter to court. People
feel aggrieved that the system is not applying what it was intended
to do in the first instance, which is to obtain a fair and honest
judgment on a complaint that has been made. That is one of the
reasons why we wanted to have this meeting, because there appears
to be some areas that the Commission should look at because it
is not expressing full confidence in the work of the Ombudsman.
Do you agree with that?
Mr Redmond: We believe that we
have in place a process which tries to ensure fairness and consistency
and integrity in the way we investigate complaints, and we have
an internal complaints procedure which actually follows through
any actions that should be considered against individual investigators
and the way they have carried out that investigation of the complaint.
I think we believe that we have a rigour and robustness in the
way we carry out those internal complaints. Ultimately there is
that recourse to law if it is considered we have made a decision
which should be challenged, but we do operate within the legislation
that we have and we think the way we operate within that means
we make proportionate and reasonable decisions.
Q49 Chairman: The role of the Commission,
as it says in your document, is to offer guidance intended for
fair and effective administration in local government. How do
you judge what is fair?
Mr Redmond: By making sure that
the operating drill we have covers every possible aspect of an
investigation of a complaint and we have a series of steps to
be taken in order to ensure that the investigator who is carrying
out that investigation follows those. There is a monitoring process
within the Commission to ensure those are adhered to right through
to the Ombudsman him/herself. That consistency is fundamental
to the way in which the Ombudsman considers the job should be
done. We think we fulfill that role as best we can.
Q50 Chairman: I accept that. My question
was how do you judge what is fair?
Mr Redmond: We judge what is fair
by actually taking the complaint that is put before us, we examine
the complaint and we look at the key concerns of the complainant.
We then take the information, we look at the council's response,
we look at the council's records, we may interview a series of
people, we form a judgment and that judgment is based on all the
information and evidence that we need in order to make that judgment
and that is an equitable way of carrying out the investigation
which leads to a fair judgment.
Q51 Chairman: Do you include third or
fourth parties in that investigation?
Mr Redmond: We will include whoever
we need to include in that investigation.
Q52 Chairman: What about the complainant
and what they think should be investigated?
Mr White: We have the power of
the High Court to require people to provide us with information,
not only councils but third parties as well. We obviously take
into account what complainants say. When they say, "Well,
you should interview so and so," we make a decision as to
whether we do interview so and so.
Q53 Chairman: On what basis is that decision
made?
Mr White: A judgment is made as
to whether or not that interview is going to be crucial for reaching
the right decision in a particular case and it depends on the
facts and circumstance of each case. We only investigate so far
as we consider it necessary to be able to produce a reasoned and
just decision.
Q54 Chairman: What you consider to be
reasonable cannot be challenged unless they go to court, can it?
Mr White: That is right. That
is the statutory framework. We are here to be the final decision-maker
on complaints against local authorities. If there was a different
statutory framework there would be a different procedure. The
only way in which someone can say my decision on a complaint is
wrong is to challenge that decision in the courts.
Q55 Chairman: It was seven cases that
went to court last year out of 19,000 and some of those cases
were brought by local authorities. There were 19,000 people who
had a reasonable objection to the result, but because they do
not have the resources that the Ombudsmen have to take it to court
a lot of cases that people would wish to be challenged are not
challenged. Have you had that complaint made to you?
Mr Redmond: I cannot judge whether
seven is a reasonable number or not.
Q56 Chairman: Do you think it is reasonable?
Mr Redmond: I cannot make a comment
on that. I think it is down to the individual whether they feel
aggrieved about the outcome of the decision. There is a pre-action
protocol that deals with some of the people that would wish to
consider Judicial Review.
Q57 Chairman: What is that protocol?
Mr Redmond: To go through the
process to ensure that Judicial Review is appropriate. It is about
whether that is an appropriate process and whether or not the
complainant wishes to pursue that course of action. There is also
the question of how many of the 19,000 complaints received lead
to a decision, which is significantly less than the 19,000 itself.
In a large number of cases the decisions that the Ombudsman takes
will be to recognise that it is a merits matter, it is something
that the council has a policy on and it has implemented its policy
properly. As long as the administrative process is not unsound
the Ombudsman will not find against the council. In those circumstances
the complainant may well be dissatisfied, but it is not something
we would deal with anyway. I do not know what proportion of those,
for instance, would fall within the so-called dissatisfied complainants
that might come forward in this situation, so it is very difficult
for us to judge this.
Q58 Chairman: Is there a vehicle available
to people who consider that the case has not been considered by
the Ombudsman in a proper manner to register that? Is that vehicle
available to them? Are those figures registered?
Mr Redmond: Yes.
Q59 Chairman: The "comeback"
is where the case is reviewed, but there is nothing in here that
tells me that in a number of those people would have liked to
have taken them to court and because of a lack of resources they
have not been able to, is there?
Mr Redmond: No.
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