10. Written evidence from the Commission
for Local Administration in England
GENERAL
I welcome the several aspects of the Bill which
are clearly designed to modernise in a number of ways provisions
that were previously contained in the Local Government Act 1974—the
legislation which still governs our procedures and jurisdiction.
For example, the Bill opens the door to alternative ways of resolving
complaints other than by way of investigation, provides alternative
processes for reporting on investigations and widens the Ombudsman's
powers of delegation.
All of these—and others—are useful
measures. We are also seeking to modernise some aspects of the
1974 legislation in conjunction with the Parliamentary and Health
Services Ombudsman, with the main object of permitting closer
working between us. The current intention is that this will be
achieved through a Regulatory Reform Order, the terms of which
are still in preparation.
But given the need for brevity, and the advanced
progress of this Bill, the comments which we set out below concentrate
on two areas where I consider there is a case for further improvement
of the Bill's provisions.
1. TRANSFER OF
CASES BETWEEN
THE LOCAL
COMMISSIONERS IN
ENGLAND AND
THE PUBLIC
SERVICES OMBUDSMAN
FOR WALES
Section 23(10) of the Local Government Act 1974
currently provides:
"Each of the Commissions—
(a) shall make arrangements for Local Commissioners
to accept cases for which they are not responsible including,
where the other Commission so request, a case arising in the country
of that other Commission, and
(b) shall publish information about the procedures
for making complaints under this Part of this Act."
Under these provisions, there have been well-established
arrangements for the English Local Government Ombudsmen to transfer
individual cases for investigation to the Welsh Local Government
Ombudsman (and vice versa) without restriction as to the country
in which the complaint arose. These provisions have been used
principally where an ombudsman (in England or Wales) was presented
with a conflict of interest in conducting an investigation. The
ability of the ombudsman in the other country to investigate in
such cases enhanced the public perception of the independence
of the ombudsman institutions in both countries.
In 2004 both the English and Welsh Commissions
were given jurisdiction over internal drainage boards. In a small
number of cases the area of the board is partly in Wales and partly
in England. In these cases, it was agreed between the English
and Welsh ombudsmen that complaints would be dealt with on the
basis of the geographical location of the particular problem.
Section 23(10) confers the legal power for the English Local Government
Ombudsmen to transfer such complaints received by them to the
Welsh Ombudsman.
My understanding is that it has been the intention
of the Welsh Ombudsman and ourselves that these arrangements for
the transfer of cases between the institutions should continue.
In January 2004, I wrote to the relevant official in the Welsh
Assembly Government in response to the consultation on the proposal
for the Welsh Administration Ombudsman to undertake investigations
as Commissioner for Local Administration in Wales. In doing so,
I expressed my support for the continuation of the reciprocal
arrangements for transferring cases.
But my understanding of Schedule 6 to the Bill
paragraph 8(8) is that the words appearing in italics in my above
citation of section 23(10) will be repealed. This will have the
effect of removing the powers of the English Local Government
Ombudsmen to transfer cases received by them, even if the Welsh
Public Services Ombudsman may be able to use his new powers in
the Bill eg on delegation to any other person. (The powers of
delegation by Ombudsmen under the 1974 Act are limited to "officers"
of the English Commission.)
In addition paragraph 11(3) of Schedule 6 to
the Bill inserts a completely new provision in the 1974 Act to
the effect that an English Local Government Ombudsman:
". . . shall not conduct an investigation
under this Part of this Act in respect of any action taken in
connection with the discharge by an authority of any of the authority's
functions otherwise than in relation to England."
This provision would also prevent the transfer
of individual investigations between England and Wales as currently
permitted by the 1974 Act.
I would request the powers of the English Local
Government Ombudsmen to make arrangements to transfer cases to
the Public Service Ombudsman for Wales be restored.
2. CONSULTATION
AND CO
-OPERATION BETWEEN
OMBUDSMEN—CLAUSE
24 OF THE
BILL
I welcome the provisions of this Clause, as
far as they go. The Clause places the Public Services Ombudsman
for Wales under a duty to consult with the Local Government Ombudsmen
(or certain other specified statutory ombudsmen or commissioners)
where he considers that the subject of the complaint or investigation
could be the subject of an investigation by us (or one of the
other specified ombudsmen). The extent of the duty to consult
and cooperate imposed on the Public Services Ombudsman for Wales
is comprehensive and powers are conferred on him and the appropriate
"other" ombudsman to conduct a joint investigation and
prepare and publish a joint report.
However, Clause 24 will only be triggered where
the Public Services Ombudsman for Wales identifies a cross-boundary
issue following a complaint to him. Similar powers are not conferred
on the Local Government Ombudsmen in connection with complaints
received by them (or the other specified ombudsmen). This would
seem to be a missed opportunity to ensure that these powers are
two-way. If they are appropriate for complaints received in Wales,
the question must be asked why not for complaints received by
comparable institutions outside Wales?
We are seeking to address these issues in conjunction
with the Parliamentary and Health Services Ombudsman through the
proposed Regulatory Reform Order which I have previously mentioned.
But it is a wider issue and I can see no objection to amending
this Clause so that the duty to consult and cooperate, including
powers of sharing information and joint investigation, are made
truly reciprocal across a broad spectrum of ombudsman institutions.
CONCLUSION
In summary, I ask that the provisions of the
Bill be amended as appropriate so that:
(a) the English Local Government Ombudsmen
and the Public Services Ombudsman for Wales retain explicit powers
to transfer cases between them comparable to those enjoyed for
many years under current legislation; and
(b) the powers of consultation and cooperation
be made reciprocal so that they do not only apply where the Public
Services Ombudsman for Wales receives a complaint which he considers
to contain a cross-boundary issue.
I hope these comments are helpful. If you require
any further clarification please do not hesitate to contact me.
I am sending a copy of this letter to Adam Peat,
Welsh Administration Ombudsman, Jerry White and Patricia Thomas,
Local Government Ombudsmen, Ann Abraham, Parliamentary and Health
Services Ombudsman and also to Virginia Hawkins (National Assembly
for Wales).
Tony Redmond
Chairman
7 January 2005
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