Examination of Witnesses (Questions 80-99)
15 MARCH 2005
MR JERRY
WHITE, MRS
PATRICIA THOMAS
AND MR
TONY REDMOND
Q80 Mr Cummings: The Committee has received
correspondence from several people who are suggesting that the
levels of compensation that you award to complainants are too
low. Do you have guidelines on appropriate levels of compensation
to be awarded by your officers?
Mr Redmond: We have just reissued
guidance on remedies and that indicates a rule of thumb measure
for determining what a particular remedy might be for certain
types of complaint. It is ultimately not a precise science. We
make a judgment as to what we think an appropriate compensation
is. The guidance on remedies gives a good steer and a good understanding
of our thinking.
Q81 Mr Cummings: And that is guidance
accepted by the other two Ombudsmen, is it?
Mrs Thomas: Yes.
Q82 Mr Cummings: You also have recommended
to the ODPM, which obviously has not yet responded to the review
of 2003, that the Ombudsmen be empowered to investigate complaints
initiated by councils. In what circumstances do you consider this
to be helpful?
Mr Redmond: There are a number
of issues within the public services where we see that there may
be a shortcoming in the way a particular service is administered
which is not directly related to the complaint that we may be
investigating. Sometimes an "own initiative" investigation
is helpful in that respect in that we could look at it hopefully
from a detached and impartial perspective which can actually assist
the administration of the service within the council.
Q83 Mr Cummings: Could you give an example?
Mr White: I could give an example
which may be of interest. There was a particularly contentious
planning decision by a Devon authority, where the authority itself
felt that something might have gone wrong and wanted the Ombudsman
to carry out an independent investigation and they raised it with
my staff and my staff said they needed a complainant. They then
went and did an internal investigation which revealed some criticisms
and eventually a complainant brought the matter to me and then
I carried out an investigation and issued a report and made a
recommendation in respect of it. That was a complaint which could
have been short circuited if the local authority had been able
to say, "Well, this particular planning decision has raised
a great deal of anger locally. Let the Ombudsman look at it."
Eventually it came back to me, but that was about nine months
after the local authority could have brought it to me.
Q84 Mr Cummings: Are you not making rods
for your own backs?
Mr White: It could be difficult.
I think we are aware that if local authorities were bringing matters
to us to investigate there could be a variety of reasons why they
would be doing so. We would have to have the discretion to say,
"No, we are not going to investigate this. We accept that
something may have gone wrong, but we're not going to investigate
it for a variety of reasons." We feel that in the interests
of justice it might be of use to local authorities and to citizens
if a local authority could bring a matter for us to investigate
without a complainant.
Q85 Mr Cummings: It could be used to
underpin a decision that has been made by the council which is
very unpopular.
Mr White: It could be.
Q86 Mr Cummings: If you could indicate
that you have the total support of the Ombudsman—
Mrs Thomas: I think we must make
the point that we do not validate councils' decisions. All we
say is whether the process has been faulty or not. We cannot look
at the merits of the decision. We are only looking at the way
in which they have reached a decision. The fact that we might
not pick it up does not necessarily say we have got the decision
right.
Q87 Mr Cummings: Is that not essentially
the problem?
Mrs Thomas: I understand that,
but unfortunately that is what the jurisdiction says. I think
this is why there is more dissatisfaction among the public, because
they do not understand that we cannot look at the decisions, we
can only look at the processes leading to them.
Mr White: Chairman, we are not
a Court of Appeal against council decisions; and sometimes we
can see a council decision which, on the face of it, looks very
strange indeed but where we have looked at the administrative
processes underlying it and we can find no fault. When Members
took a particular planning decision they did so with all relevant
information in front of them and with no irrelevant information
in front of them. It was a perfectly proper process but they made
a decision, perhaps against officer advice, that on the face of
it looks odd. We cannot question it unless there has been administrative
fault in the process. That is why I think in many cases members
of the public are dissatisfied because there is not, as it were,
an Appeal Court against which you can challenge a properly-made
decision by the local authority. In this particular case, there
is no third party appeal to the Secretary of State on a planning
decision, for instance; that is a matter of public policy; there
clearly could be but there are lots of things to be said for and
against; but we are not that alternative.
Mr Redmond: Also we recognise
that is a responsibility for us to try and communicate better
to jurisdictions we hold. That is a frustration, we understand,
for a lot of complainants.
Q88 Mr Cummings: Twice this morning you
have made reference to the lack of response to the 2003 Review.
Will you be making a further robust approach following on from
this short inquiry?
Mr Redmond: It will certainly
still be on the agenda when I next meet the ODPM, yes.
Q89 Mr Cummings: The question I asked
was: will you be making a robust approach?
Mr Redmond: I think I will make—
Q90 Mr Cummings: Why such a faint heart?
Mr Redmond: It is not a faint
heart. I am trying to balance this against the fact that some
of the work we would like to see advanced is actually being progressed
in a regulatory form, which is bringing together the working of
individual ombudsmen. To that extent, we are getting some progress.
Whether we can expect progress on everything is another matter.
Certainly I will be raising it again, yes.
Q91 Chairman: On the question of planning,
can I refer to page 8 of your document, because you say you cannot
make a decision on planning matters, it can only be a reference.
In this report, looking at the second paragraph it says: "We
will often recommend compensation for lost opportunity, for damaged
amenity and nuisance for property devalued by development that
should never have been permitted". How can you say that a
development should never have been permitted?
Mr White: Through investigation
we can sometimes identify that the fault has been so serious in
the process leading to the decision that, if the right information
had been taken into account, Members would not have permitted
the development that was permitted. Sometimes we can say, "This
house should never have been built there at all". With a
case, for instance, of a telecommunications mast—one of
my cases—we were able to show that had the council done
what it wanted to do (which was to resist development) the developer
of the mast would have moved away and would have found a different
site; but because the council failed to meet the deadline and
object to the telecommunications mast the mast was built in what
I consider to be the wrong place. The valuations there of the
complainants' houses and of other houses affected cost the council
£115,000, because we were able to show that if proper administrative
procedures had been followed that telecommunications mast would
never have been there. We can do that in a number of other developments,
and each year we find out a number of cases where we can say,
"This planning development would not have happened had it
not been for maladministration".
Q92 Chairman: On the telecommunications
mast, would that apply on permitted development?
Mr White: Not generally, because
that is development which is permitted generally and which developers
or householders can develop without planning permission at all.
Q93 Chairman: If it is devalued property,
as is suggested in here, is that good planning practice?
Mr White: No, it is a result of
bad practice. It is the result of a mistake.
Q94 Chairman: If it is bad practice then
should it be allowed to go by?
Mr White: In some cases we have
recommended that planning permission be rescinded. The difficulty
there is that there is then potential injustice to a developer.
Indeed, rescission of a planning permission is a difficult thing
and has to go through the Secretary of State and all the rest
of it. In general we recommend that compensation be paid, and
we ask the council to instruct, usually, the district valuer to
value the complainant's property before the development was built
and then after and to pay the difference. That can be very substantial.
I have had one that was £50,000 on one property.
Q95 Chairman: In all cases where judgment
is being considered and a development is considered not to be
in the best interests of the community or the area, then that
principle of the developer being disappointed always applies.
How can you say, in the case of a telecommunications mast, that
the situation should be different—that the developer would
lose if the planning permission was refused for a telecommunications
mast?
Mr White: At the end of the day,
rescinding a planning permission is a difficult matter that involves
the council reaching a decision on how much that will cost it;
how much it will cost the public purse to rescind it; and then,
indeed, go through a process over which the council is not in
control. It is a very difficult process and it is one which does
not necessarily bring about the thing that you want.
Q96 Chairman: I am looking at the question
of evidence that has been submitted, and this is where I come
back to the question of maladministration by the ombudsman. It
is a hypothetical case at this moment in time, but if the evidence
is there but not judged as being appropriate by the ombudsman,
and the case is then upheld by the developer and the council,
that is where the maladministration of the ombudsman comes into
play because there is evidence there that is not being taken into
consideration. That is the background, and I am not making one
case; every constituency and every local authority has similar
cases and it does create problems. It is reported in here that
the chairman says that the biggest increases in cases is on planning.
I would imagine that the largest number on planning is telecommunication
masts?
Mr White: No, it is not the largest
number on planning. It is an issue, but most of the planning complaints
we get will be about neighbouring development of one sort or another
and quite commonly they are about, "My neighbour has put
up an extension which has impacted on my amenity". That is
the general sort of complaint we get.
Q97 Chairman: On the question of the
permitted development, do you have any jurisdiction over that
at all—telecommunication masts; can you judge on that at
all? Where the residents consider that the cost of this permitted
development devalues their property, it is a nuisance and it brings
discredit to the community, have you any jurisdiction over that
at all?
Mr White: No, we can only question
the decision to put a mast somewhere where we find a fault in
the process.
Q98 Chris Mole: You told us at the start
of this hearing that part of your geographical distribution is
as quirky as it is because you avoid areas where you might individually
or personally be seen to be connected. How do you respond to the
more general accusation sometimes made that you tend to side with
the councils?
Mr Redmond: I start by saying
that the complaint is our focus. We receive a complaint and we
investigate the complaint. We are required to carry out a thorough
investigation drawing together information, interviewing people
and so on, which involves the council. We have a procedure which
ensures we stick to that process rigidly in terms of making sure
we are impartial and independent. Of course we have to have a
healthy working relationship with councils—it is important
in the context of making sure we carry out a rigorous investigation;
but I do not accept that we are in any way close to the councils.
We carry out an investigation which is basically to try and determine
whether or not there is injustice caused by maladministration
in that particular complaint. I do know some people's perception
is that we work more closely with the council when they do not
like a decision; that is understandable, I suppose, but that is
not the way we operate. The relationship is about trying to make
sure we draw together all the information, all the evidence that
is necessary in order to make that decision.
Q99 Chris Mole: You are equally sometimes
criticised for the number of ex-local authority staff either working
for the organisation or amongst your number themselves. Do think
that it is important to have people with ex-local authority experience
in order to understand the area of work, or do you think there
is a genuine concern that ex-local authority staff might side
with the councils?
Mr Redmond: I suppose the first
thing to say is that we recruit individuals from all sectors.
We have people working for us from voluntary organisations, the
advice sector, from other public services; we have people from
central government, education, health; and we have people from
the private sector; and, of course, we have people from local
government as well. There is some benefit I think, in terms of
a balanced workforce, and in having people with some understanding
and knowledge of local government services. We do have some people
with certain specialisms within the Commission who are of considerable
assistance investigating certain types of complaints; but I do
not think we set out to recruit a lot more ex-local government
employees than from any other area. It is about recruiting the
best person for the job and certainly this would not exclude people
with ex-local government service.
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