Local Government Ombudsman

Written evidence submitted by Care for Community Living Ltd

Introduction and Executive Summary:

This submission details some of the key issues for Complainants who use the LGO System in respect of the function, purpose and Legal Status of the LGO, including its arrangements for handling complaints and the adequacy of redress when maladministration is found.

1. The Purpose and Legal Status of the LGO.

2. Current Issues for Complainants.

3. Commercial and ‘Whistleblower’ Considerations for the LGO System.

4. Recommendations.

5. Notice of the Potential for Future Judicial Proceedings.

About the Author:

The author of this submission is a Charity Director with 20 years experience of dealing with front Line Mental Health accommodation and services and has extensive experience of Councils’ and the LGO’s Complaints systems.

1 The Purpose and Legal Status of LGO Investigations

 

1.1 The positioning of the LGO investigations between the internal processes of Local Authority investigations and the fully independent processes of a court gives rise to two primary issues concerning its purpose and legal status.

1.2 The first issue is the lack of a clear and contiguous statutory framework governing the entire complaints system for Local Council s / Authorities and the LGO .

1.3 The LGO is part of a contiguous and sequential system for the public and for organisations to report and submit complaints about Councils.

1.4 The LGO system therefore sits atop the systems used by Local Councils to investigate, rule on and record complaints. Consequently, the arrangements and statutes governing the way in which each Council deals with a complaint and how it compiles evidence in the first instance, are relevant to the LGO’s work.

1.5 To be clear, complainants must normally submit their complaints to Councils before they can access the LGO.

1.6 Crucially however, there is no clear statutory requirement for local authorities to respond to, address or even record formal complaints, at all . (Please refer to the DCLG List of Statutory Duties Placed on Local Government - Revised June 2011, 18927821.xls). Obviously, this is deeply problematic.

1.7 For example a council can rely on the lack of statutory compulsion to simply refuse to acknowledge a complaint or can delay it by saying they will investigate it and then not doing so. Even when it is passed to the LGO it can often be passed back to the Council at a later date under the pretext of a jurisdiction issue or as a local settlement.

1.8 If these arrangements are not honoured and the complaint needs to be followed up the whole long winded and meaningless process starts afresh. This can go on for years - we have been tied up in process since 2006 - and represents a clear systemic bias which can only serve to disadvantage the complainant.

1.9 This tactic, gives the respondent (the Council) the unfettered ability to ensure that items will be ruled ‘out of time’ for Judicial Purposes and can also delay the securing of evidence and rulings, which in turn, are then subject to the legal limitations affecting evidence. Again, this is entirely to the disadvantage of the complainant and does negate their normal rights to redress in common law, by process, (nb a process which would not qualify as Due Process).

1.10 Our experience has been that complaints - including complaints about a Council’s dangerous mishandling of an adult protection signal (an alleged sexual assault) - were never investigated, addressed or recorded by the Council.

1.11 This is despite passing back and forth between the Council and the LGO over several years and despite a formal undertaking from the Legal Department and the Council’s Chief Executive that the Council would process them.

1.12 That is, a formal whistleblowing complaint – labelled as such – which involved public safety, mental health clients and the way in which a Council’s staff mishandled an allegation of a sexual assault, was - notwithstanding three separate stages of formal submission, up to the level of the Chief Executive and involving the LGO - still not investigated, addressed or recorded.

1.13 The Council and the LGO responsible, have to date offered no more than a few lines acknowledging this and one sentence of apology. Crucially, no-one has to-date has offered to correct the public records.

1.14 The absence of statutory requirements and provisions for Councils to investigate, process and record complaints, to a standard that would satisfy a High Court, is then crucial in understanding the limitations of the entire system that the LGO is part of, at present.

1.15 This is because the legal status of evidence submitted to the LGO is considered the same as that of evidence gathered for a High Court.

1.16 This then is the one statutory provision that the LGO has to exercise. That is, an attempt to obstruct the LGO or to provide false or misleading evidence to the LGO is to be treated as a contempt of court or perjury, would be. The LGO is under a statutory duty to report any such offence.

1.17 Regrettably however, there is no evidence in our experience of the LGO even acknowledging an attempt to mislead her or to provide false evidence, let alone of any sense that evidence is being treated in line with the standards of a High Court.

1.18 The combination of the absence of clear cut statutory provisions or requirements for Councils to investigate, address and record complaints and the lack of rigour in the LGO’s approach to the treatment of evidence conspire to give the impression of a system designed to derail complainants into a legal cul-de-sac, which serves the purpose of protecting Councils from any legal or financial consequences of Maladministration Misconduct or Misfeasance, on their part.

1.19 This point is important. The public is rightly concerned when Councils appear to have mishandled or ignored first contacts or complaints (including whistleblowing), particularly when it appears that the deaths’ of children or vulnerable adults might have been prevented, by better responses to first contacts or complaints by the Councils. Please refer to the Baby Peter Case and the Victoria Climbie case.

1.20 Surely, it is unreasonable to expect the public to have any further faith in an LGO system whose entire purpose – dealing with complaints about how Local Authorities have dealt with complaints – is completely undermined by the fact that there is no statutory requirement for Councils to answer complaints in the first place.

2 Current Issues for Complainants.

 

2.1 Organisational Credibility . It is a simple fact that most people who have grown up with the Common Law cannot accept that a body consisting almost entirely of ex council staff, is appropriately configured for investigating Council maladministration or Misconduct.

Unfortunately, experience of the LGO only serves to reinforce the perception of institutional bias.

2.2 Again , there are no statutes in operation governing local authority complaints which require any special knowledge – a member of the public could easily exercise the discretion needed to investigate and rule on maladministration. The number and proportion of LGO rulings against Councils compared with those of the Parliamentary Ombudsman against Parliament, might perhaps be worth checking, for consideration.

2.3 At any rate, the fact that Councils have already usually had a three stage chance to deal with complaints internally, before they go through to the LGO, should mean that the LGO stage of investigation needs to be truly independent and should never consist of any individual who has ever worked for a Council, in any capacity.

2.4 The current situation with LGO’s (ex council staff ) who work alongside Councils to draw up general annual complaints reports, is far too cosy and gives further impression of systemic and institutionalised collusion and bias, in favour of Councils.

2.5 Lack of Accountability. The LGO does not appear to be accountable to anyone. Certainly, the LGO has refused to detail whom if anyone she might be accountable to, when we have asked her to do so.

2.6 Clearly, it is not the fault of the DCLG, that it has very little control over the LGO. Councils are autonomous bodies and the LGO is commissioned by the Crown, meaning that outside the realms of an Inquiry there simply aren’t the statutes that would enable Parliament to hold the LGO or Councils to account for any malpractice or serious miscarriages / denials of justice. That being the case, the position of the public or whistleblowers when they deal with the LGO is particularly weak and is in practice unacceptable.

2.7 Lack of Transparency . The LGO work s in private and y ou can't properly appeal their findings of fact . The LGO doesn't have to show all the evidence they rely on to the complainant and in our experience they have repeatedly refused, citing that they don’t have to show their workings if the case might go to court, where of course they definitely won’t share their evidence, since they don’t have to.

2.8 The FOIA does not extend to the LGO for all practical purposes then, since any case might go to court. However, the first major impediment for complainants wanting to challenge the LGO in a Judicial Review is the LGO’s protected status and the consequent ability to deprive the complainant of the quality of evidence that is needed for such a challenge in the first place.

2.9 The Effective and Seemingly Unintentional Exemption of Council Staff from the Statutory Charge of Misconduct / Misfeasance. The danger here is that both Councils and the LGO are protected – under the current LGO system - from the misfeasance in public office charge – and specifically the charge of targeted malice.

2.10 This latter charge, requires evidence which is systematically, that is by process or any other legal means, impossible for the public to acquire in the event that such was needed.

2.11 In this respect, I do not believe it is necessary to prove that there has ever been targeted malice by the LGO or targeted malice covered up by the LGO. It should only be necessary to note that there is no protection by statute or by process which could guarantee to complainants that these things couldn’t happen or that they could be brought to justice, if they did.

2.12 Given that these Misfeasance in Public Office charges are the only legal protection that the public has to guard it from serious misconduct by public officials – working for Councils or the LGO and possessing considerable powers, financial and otherwise – the current LGO system is not fit for purpose.

2.13 Crucially, it is our experience that although Courts and the Judicial Review process require that all reasonable avenues for redress have been taken prior to applying for a JR, the very act of engaging with the LGO, is detrimental to any such intention, to the point of a denial of Justice. The systemic flaws here are clear.

2.14 The Lack of a Statutory Framework for LGO and Council Complaints and the Lack of the Demonstration of Adequate Rigour in LGO Investigations. In our experience the LGO has not demonstrated an adequate understanding or exercise of investigative good practice, to anything like a standard as would satisfy either the police or a High Court. This deficiency is matched and to an extent stems from, the lack of an adequate, accountable or enforceable statutory framework, for evolving and ensuring such good practice.

2.15 There is then a mismatch here between the statutory consideration of evidence submitted to the LGO, which treats any such as evidence submitted to a High Court and the distinctly un - forensic practices and approaches allowed by the LGO system, in gathering and validating evidence, in the first place.

2.16 Obstruction, Contempt and Perjury are items which require the cross referencing of evidence to a fairly high standard and the LGO has simply not, in our experience, demonstrated a rigorous enough approach to investigative work in general and this item in particular , to be entrusted further with the task of enforcing this statute – ie the treatment of evidence as if it were being submitted to a High Court and the reporting of potential breaches of the statute by Council staff, submitting evidence to the LGO.

2.17 A straight calculation can be made by the Inquiry here to show the rate of contempt / perjury or obstruction per case in the High Court and the reported rate of incidents of the same offences , as recorded and reported by the LGO. These should both be available to the Inquiry from the relevant Public Records.

2.18 Neither Local Councils nor the LGO appear to demonstrate anything like the basic standards required to work with front line contacts and investigations that may subsequently have to involve the police or courts.

2.19 Due to the nature of our sector – Supported Housing for Mental Health clients – even the most junior staff members, if they are working in a front line capacity, have to constrain their first contact investigations, so as not to affect a police investigation and so as to ensure that nothing that might pervert the course of justice, is entered as evidence.

2.20 To that end most front line community service providers will have some binding procedural guidance for their staff to ensure , for example, that:

a) Any signal of a criminal act must be reported to the police on discovery of the signal (i.e. within 24hrs); crimes are tried by courts alone.

b) Any evidence that needs to be presented to the police should be formalised and counter signed by the relevant part ies where necessary as quickly as is possible. (i.e. recorded on the same day as signal is received and reported).

c) An alleged victim and an alleged perpetrator of an act are treated equally. Both must have the same opportunities to provide evidence which must in turn be treated equally.

d) The statements of both parties are accorded equal weight. Both parties should have the right to respond to the other’s statements.

e) Every e ffort should be made to ensure that neither party has an opportunity to collude with any witnesses they have named, before the witnesses’ initial statement s are all taken.

2.21 Councils and thus the LGO , are responsible for using their complaints system to protect the pu blic (e.g. Baby Peter) - not just themselves - and therefore , in the absence of proper statutory standards that can be enforced ( in respect of complaints and evidence gathering ) , the public cannot be not properly protected as it expects to be , given the monies available to Councils and in light of, their significant powers and responsibilities.

2.22 The Lack of Impartiality. The LGO is demonstrably not even handed in the handling and consideration of the evidence she compiles and enters into her findings. The LGO will meet and discuss evidence - both circumstantial and substantive - with the Council but will not meet with the complainant or have any kind of oral discussion.

2.23 There is no reliable way of knowing what Councils say in these meetings or even if such meetings have taken place and there is no opportunity to check the veracity of what is said to the LGO, which may be highly prejudicial and inaccurate. (see LGO ’s web site guid ance to its investigators - 2011 ) .

2.24 There is no sense that any consideration is given to the idea that the subjects of complaints might have a prejudicial interest which affects any evidence they give in these and other exchanges.

2.25 Our experience is that the LGO will continue to rely on the credibility of evidence given by the subjects of complaints even where there is clear evidence that the individual has deliberately given unreliable or false information in other parts of their submissions (oral and documentary).

2.26 In our experience if the Council’s relevant staff member, in discussions with the LGO, denies an allegation, the LGO will accept that as substantive evidence that there is no case to answer.

2.27 If the staff member gives a retrospective account of an incident or action which is not in accordance with the documented evidence recorded at the time of the incident, the standard of the LGO investigation is not consistently rigorous enough , to cross reference and address the anomaly or even to identify and acknowledge it.

2.28 Crucially however, the complainant’s documented statements are not accorded the same weight nor, in our experience over the last 6 years, is an oral submission of a complainant’s evidence or case sought or agreed to , when requested.

2.29 This type of practice presents an impression of systemic bias which is completely at odds with the spirit and principles of English common law and of the standard treatment of High Court Evidence.

2.30 The LGO will not, in her consideration of the Council’s defence to complaints, take account of or acknowledge the repeated changing of the line of defence by a Council, to an allegation of maladministration . Councils are allowed an unfettered ability to change their stories beyond all recognition, at any stage, with apparent impunity.

2.31 Again, this does not seem to be in line with the workings and standards of a High Court, in respect of evidence and does give an impression of institutional and systemic bias.

2.32 The Lack of and Failure to Enforce Reasonable Time Limits. There are no time limits at all for the LGO to produce a ruling; thus, it is feasible to keep case away from courts and public scrutiny for many years.

2.33 Similarly, the LGO does not hold Councils to any time limits when supplying their responses to her.

2.34 The Council and the LGO, unfettered by time limits, are then free to proffer ever changing explanations to any allegation ad-infinitum, until regardless of its credibility, a defence that fits or can’t be disproved by the evidence submitted originally by the complaint, is found.

2.35 Conversely, the complainant is constrained to keep to the limits of the case and evidence that were submitted by them to the Council, in the first instance. That is, notwithstanding any failure by the Council to release key FOIA requested evidence that would be relevant to such a complaint, in the designated FOIA time frame for responding to such requests and at the time the complaint needed to be raised.

2.36 Regrettably, despite the Information |Commissioner’s existence , exceeding the time limits for providing information under FOIA is still the norm for our Council when responding to FOIA requests, a s it is for our Council, on almost every occasion, when responding to the LGO.

2.37 The LGO does not regard this as obstructive nor does she enforce any time limits that apply to councils responding to her.

3 Commercial Consi derations for Using the LGO in Contractual Disputes or Whistleblowing R eports.

 

3.1 The LGO doesn’t appear to be willing to report any potentially criminal act they identify during their investigations to the Police. For example, the LGO doesn't appear willing to take action against any council officer who has lied to them, despite the statutory obligation to do so.

3.2 Similarly the LGO won’t report whistleblowing signals to the DCLG, even where the signals are backed up by clear cut documentary evidence, where the DCLG should be aware of them and where the complainant has requested that the LGO pass on the evidence and signal.

3.3 The LGO can ignore requests for updates for months.

3.4 The LGO is free to determine the level of injustice you must suffer before investigating your complaint and in assigning damages.

3.5 The LGO is free to define maladministration as they see fit,

3.6 Legal costs incurred in bringing a complaint that is upheld, even a whistleblowing complaint, will not usually be compensated.

3.7 The LGO has an institutional prejudice that most complaints can be redressed by talking things over or at most securing an apology. This is a clearly prejudiced constraint placed on the LGO by itself, and cannot be viewed as a credible or impartial approach to commercial concerns , which of course will require commercial remedies or in other words , proportionate financial redress for any financial damage caused by a Council’s maladministration or wrong doing.

3.8 The LGO does not offer the level of remedy or redress for maladministration that is needed for commercial enterprises working with Councils. Charities in particular are forced to rely on the current Council Complaints system and the LGO, neither of which have reliable enough processes or working timescales, for what may be at stake.

3.9 The LGO does not have adequate institutional experience to understand the financial and reputational damage that maladministration can do to businesses that work with Councils – or to the individuals who run those businesses; these businesses, charitable or otherwise, are for all that, still working in the private sector and are bound by a plethora of relevant (in a functional sense) statutory requirements with legal penalties, for failures to comply.

3.10 There is not an interoperable match between the statutes, requiremen ts for contractual adherence or penalties for wrong doing , in terms of the regulation of C ouncil s and private sector companies .

3.11 Moreover , the LGO’s working practices are simply not adequate for the settlement of what may be contractual disputes or maladministration claims, involving substantial financial liabilities or serious organisational consequences for a private company.

4 Recommendations.

 

a) The urgent creation of binding statutory governance , requiring Councils to investigate, process and record complaints. The current unjustifiable ability to legally avoid doing this, enables Councils to legally withhold a full and honest account of their performance from the voting public. Our Council has done so. The current system is then self evidently, unacceptable.

 

b) The abolition of the c urrent LGO System. Complainants and the public already pay through their hard pressed taxes for the already overly long-winded three stage 16 week process , of Councils’ complaints system s . If these were effective, fair, functioning and subject to statutory controls (i.e. they were fit for purpose), there should be no justifiable reason for a Council to have any more taxpayers money or time, given over to distancing itself from Judicial c hallenge s . Any liability for the crown would be outweighed by the efficiencies this change would surely engender.

 

c) Alternatively, t he urgent creation of a truly independent, transparent, effective and time limited local government watchdog , whose rulings are binding. This body must be seen to be free from any potential for bias or institutional proximity to Councils, Council staff or consultants providing advisory or legal services to Councils.

 

d) If an alternative to court proceedings must be made available, using such a system should not rule out, diminish or deprive the right to a Judicial hearing of the original complaint. Complainants should not be denied, as they are by the design of the current system, the opportunity of judicial redress, by the fact of engagement with the system.

 

e) The overall standard of the investigative rigour of the entire complaints system requires immediate attention .

 

5 Notice of the Potential for Future Judicial Proceedings . We have been advised by the DCLG to provide notice to the Inquiry that whilst there are no Legal proceeding imminent at the time of submission, there may be the potential for some of the above information to be required in Judicial Proceedin gs, at a future date.

 

We have therefore, tried not to include too many particulars of our case currently with the LGO. Where we do note any item, it is because we have experienced or have substantive evidence of, a particular practice or issue in our dealings with the LGO.

All the statements given in this memorandum are then, accurate to the best of our knowledge and are supported by documentary evidence, which can be requested if needed.

As advised, we will notify the Inquiry in writing if we issue any notice for a Judicial Review or any other form of judicial proceedings. However, the information above is not at present the subject of pending or imminent judicial proceedings.

Care for Community Living Ltd
March 2012