Communities and Local Government CommitteeWritten evidence submitted by Mr Gary Powell

1. Summary

Overwhelming evidence indicates that the CLAE is institutionally biased against complainants, and very heavily so.

The CLAE’s own customer satisfaction polls reveal widespread dissatisfaction with the LGO’s service among (even successful) complainants.

The previous Government was impervious and indeed resistant to evidence of the CLAE’s systemic injustice against the public.

The real level of maladministration committed by local authorities is being massively underreported by the CLAE.

Most employees at the CLAE previously worked in local government, and lack a proper degree of professional and emotional distance from the councils they are investigating.

There is no adequate appeals system to challenge a decision of the LGO, who is able to act with absolute discretion and impunity.

2. Introduction

2.1 In 2003 I founded Local Government Ombudsman Watch (LGOWatch), established a campaign website and co-ordinated efforts to expose the pro-council bias of the Commission for Local Administration in England. I retired as Director in 2008.

2.2 My serious concerns regarding the claimed impartiality of the Local Government Ombudsman (LGO) resulted from my experience of submitting a complaint to the LGO on behalf of a family in distress on account of maladministration by their local authority. The concerns increased as a result of my subsequent investigation and analysis of data in the LGO’s Annual Reports.

2.3 I submitted evidence to the 2005 ODPM Committee Evidence Session on “The Role and Effectiveness of the Local Government Ombudsman for England”, which was published in its Report. Unfortunately, the ODPM Committee aborted its investigation of the LGO because of the announcement of the General Election. It is very disappointing indeed that our subsequent efforts to encourage the Committee to resume its investigation, consider the evidence, and publish its findings, were unsuccessful.

2.4 Given the evidence that was submitted to the Committee for the 2005 Evidence Session, and clear matters of concern arising from the Ombudsmen’s own oral evidence, the reluctance of the Committee to complete its investigation and publish its recommendations does not in my view reflect well on the willingness of the previous Government to respond to clear evidence of systemic and deliberate maladministration at the heart of the Commission for Local Administration in England. In fact, my colleagues in Local Government Ombudsman Watch and I had the clear impression that the previous Government played an actively obstructive role to our attempts to expose how the CLAE was letting our citizens down.

2.5 Colleagues in LGOWatch identified that the LGO did not have the legal authority to “locally settle” complaints, to refer to maladministration only as “administrative fault” if the local authority agreed to the remedy proposed, or only to report the bad practice as “maladministration” if the local authority rejected the remedy. The LGO was in fact obliged by statute formally to report maladministration, but under the guise of their statutory discretion to terminate an investigation at any time, they did so if the council agreed to the proposed remedy, and then instead reported the outcome as “Locally Settled”.

2.6 As a result, it seems, of Freedom of Information requests by and pressure from LGOWatch colleagues, the LGO requested from the previous Government that they be given the statutory authority to locally settle complaints, and the Government responded by meeting this request. This raises the concern that, for the period until the new legislation was passed, the LGO’s reporting of maladministration as “local settlements” was illegal, as the maladministration should have been reported as maladministration, regardless of whether the council agreed to the proposed remedy. It is also a matter of dismay that the previous Government actively facilitated the LGO’s underreporting of maladministration by giving legal validity to their use of the term “local settlement” that represented a clear case of using a euphemism and a contorted technicality to keep the reported statistics for local authority maladministration artificially low.

2.7 The role of the previous Government is also a matter of concern in respect of developments following the significant decline in the number of people taking their complaints to the LGO, following the work of LGOWatch over several years in highlighting via its website, which has been very high on Google rankings for some time, the low probability of a complaint being dealt with fairly. The fall in the number of complaints to the LGO is evident from study of the LGO’s Annual Reports. However, instead of demonstrating concern and investigating why people were increasingly unwilling to take their complaints to the LGO, the previous Government repeatedly extended the remit of the LGO, resulting in the impression that the number of complainants using the LGO’s service was actually increasing.

2.8 Although I have now retired from the campaign, I still feel strongly about the ongoing harm caused by the CLAE to people who turn to it in the hope of receiving justice after being seriously let down by their local authorities. The founding of Local Government Ombudsman Watch, and the hard work we did as a community to support people who had experienced injustice from their local authorities, seems to me to be a paradigm example of what is envisaged by the current Government’s concept of “The Big Society”. I have been motivated to submit this memorandum by the hope that the current Government might genuinely be committed to a new concept of active citizenship and social justice, as well as to the defragmentation and depolarisation of society, where concerned citizens are no longer treated as enemies of vested political interests and find their rock-solid evidence of wrongdoing disregarded.

2.9 There will always be a significant number of complaints about local authorities submitted to the LGO that are trivial, misguided or vexatious. Despite the systemic injustice and pro-council bias at the CLAE, it was ironically the case that I developed some sympathy for CLAE officers who regularly had to deal with the stress caused by some persistent and vexatious complainants without a valid complaint, as such people would often then turn to LGOWatch for advice and assistance, and their vexatious and unreasonable behaviour would continue.

2.10 My concern remains that there are very many people who turn to the LGO with completely valid complaints, who do not receive the justice that they deserve. I came to this conclusion as a result of my own personal experience, the experience of the hundreds of dissatisfied complainants who contacted LGOWatch while I was Director, and statistical evidence in the LGO’s own published documentation. The CLAE is very reluctant indeed to identify or report maladministration by local authorities, and regularly dismisses completely valid complaints where evidence of council bad practice is incontrovertible.

2.11 Although my active involvement in LGOWatch ended in 2008, my understanding from regular communication with the current Director is that the matters about which I expressed concern in my 2005 submission have not been addressed in the interim.

2.12 Many people contacted me as Director of LGOWatch in a state of real anguish as a result of the LGO having unfairly sided with a council despite compelling evidence. The number of good people contacting me who were suffering from stress, depression or even suicidal ideation as a result of being let down by the LGO on a matter of great importance, was truly disheartening.

2.13 The effect of maladministration on the part of the LGO can be devastating to a complainant who has already experienced maladministration from his local authority, and has turned to the LGO in the hope of having a fair hearing and receiving justice. Without having access to LGOWatch evidence before making their complaint, they would have no reason to doubt the LGO’s claims to be fair and impartial.

2.14 It is truly lamentable that taxpayers are funding an institution that is systemically working against their interests and successfully undermining their efforts to gain redress when local authorities have been guilty of bad practice. The behaviour of the CLAE in fact actually increases the incidence of bad practice among local authorities, as the latter will be fully aware that there is in fact no truly independent and fair body to hold them accountable for acts of maladministration.

2.15 Many of those who had contacted LGOWatch after being let down by the LGO were highly articulate, professional people, with a university education, shell-shocked at how they had been let down by an institution that purported to be independent. The category of people who turned to LGOWatch about whom I was most concerned was those in difficult economic and social circumstances, whose basic security of existence was in jeopardy because of maladministration by their local authority and then by the LGO. Such people were rarely in a position to challenge unjust and inaccurate findings of the LGO; and sadly, even if they had been, it would have made no difference.

2.16 It remains to be seen whether the current Government will be willing to grasp this nettle and demonstrate a commitment to ensuring that citizens have access to a truly fair and impartial arbitrator when they have suffered maladministration at the hands of their local authority. The CLAE in its current form uses statistical and semantic spin-doctoring to protect vested interests, and falls far short of the standards we as a Nation have a right to expect. The CLAE should be safeguarding the rights of the good citizen to fair treatment when he complains about maladministration at the hands of his local authority. Many people, and particularly vulnerable people, suffer serious harm as a result of the current cosy alliance between the LGO and local authorities.

3. The Evidence

3.1 When Director of LGOWatch, I soon became aware that the LGO commissioned a MORI Customer Satisfaction Poll in 1999 that revealed a 73% complainant dissatisfaction level with its service. 61% of complainants expressed themselves to be “very dissatisfied” with the final outcome of their complaint.

3.2 The poll revealed that even among those whose complaints had been upheld, roughly 50% reported dissatisfaction with the outcome. The results of this poll are similar to the previous and subsequent ones.

3.3 There would clearly have been complainants interviewed for these polls without a valid or significant complaint, who would have expressed unjustified dissatisfaction. However, it should be borne in mind that the complainants interviewed would have already passed through an initial filter, as the LGO only investigates cases where there is prima facie evidence of maladministration with injustice. Therefore, a dissatisfaction level of this order, including high levels of dissatisfaction among those whose complaints had been upheld, should surely be a cause for concern.

3.4 The dissatisfaction statistics are even worse than the MORI poll revealed, given that, prior to the poll, the LGO was permitted to remove 11% of the random sample selected by MORI for interview. The sample removed included “complainants who might have been emotionally unsettled or abusive if contacted”. The LGO was permitted to exclude this 11% at its own complete discretion. When I attempted to discover from MORI what proportion of this figure was represented by putative potentially “unsettled or abusive” complainants, I was informed they had no breakdown by category available. As the interviews were conducted by telephone, with the interviewers therefore in no personal danger, I was very concerned indeed to hear that such a potentially large sample was removed at the LGO’s compete discretion, and in my view without justification. I suspect that the potentially “emotionally unsettled and abusive” complainants were mostly people who were understandably very angry at how unjustly they had been treated by the LGO, and that the motivation for their removal from the interview sample was highly questionable.

3.5 After the 1999 Customer Satisfaction Survey, there have been two further quantitative-type customer satisfaction surveys. Each time the LGO has removed more and more complainants from the sample selected for interview. For the survey following that in 1999, the LGO removed 14% of the sample. For the subsequent survey, the LGO removed 18% of the sample. There is clear evidence of significant and increasing statistical manipulation, and it is very disheartening that the CLAE has been allowed to continue behaving in this way with impunity.

3.6 The LGO’s own published statistics prove there is an under-reporting of maladministration. The majority of cases of maladministration are reported as “local settlements”. This is a euphemism that is made possible by a technicality: where the LGO finds that a council is guilty of bad practice, and the council agrees to comply with his remedy, or volunteers to put things right during the investigation, regardless of the harm the complainant has been caused or the seriousness of the maladministration in question, the LGO officially terminates the investigation, and reports the maladministration as a “local settlement”. However, the local settlements are beyond any question still cases of maladministration, as the former ombudsman, Mr White, attested in his oral evidence during the 2005 evidence session. This results in under-reporting of local authority maladministration on a grand scale.

3.7 The LGO generally only applies the term “maladministration” to a council’s actions if it refuses to comply with the local settlement requested. When this happens, the LGO publishes a report.

3.8 Maladministration surely does not become “non-maladministration” just because a council agrees to comply with a remedy. The LGO logically cannot request that the council agree to a “local settlement” unless he has determined that maladministration has already taken place. Indeed, a noted above, Mr White admitted that “local settlements” were cases of maladministration.

3.9 The result of this misreporting of the true levels of maladministration is that members of the public are given heavily massaged figures regarding the actual incidence of maladministration committed by their local councils. This in turn encourages councils to commit maladministration with impunity, as they know it is very unlikely it will ever be reported as such in the media. Maladministration does not become non-maladministration just because the offending council agrees to a settlement.

3.10 In the LGO’s report for 2003–04, for instance, for every one case of maladministration reported (ie normally, where the council has refused to accept the LGO’s “local settlement” proposal), there were a further nineteen cases of maladministration hidden in the “local settlements” statistics. (Of the 11,600 complaints submitted that the LGO regarded prima facie as representing “maladministration with injustice” in 2003–04, the LGO reported that only 180 cases (1.6%) represented maladministration. There were however a further 3,368 cases (29%) of maladministration reported merely as “local settlements”.)

3.11 The staff at the CLAE, including the senior staff, are mostly recruited from local government. They are far too emotionally and professionally connected with the bodies they should be investigating impartially. The Ombudsmen themselves are usually former Chief Executive Officers of local authorities. In that former role, they would inevitably have experienced findings of maladministration against their own councils—albeit even if only described as “local settlements”—and it would be hard to believe that they did not have an inappropriate degree of sympathy and identification with the CEOs of councils their Commission is investigating.

3.12 It is interesting to compare this situation with the Independent Police Complaints Commission, where few or no senior staff are former police officers.

3.13 The LGO has been allowed to behave with impunity, and this reinforces bad practice. There is no adequate mechanism for appealing against a finding of the LGO. The measure of judicial review is only available to the wealthy. Even then, only very rarely is it possible to bring a successful challenge against the LGO via this route. The reason why this is the case would be a matter for a very interesting debate.

3.14 Where the LGO requests a “local settlement”, this generally involves very paltry sums of pecuniary compensation that do not properly reflect the harm and suffering caused to the complainant. The irony is that it is local taxpayers who have to foot the bill for these local settlements, and that raising the sums requested in compensation is to the detriment of those taxpayers. I believe that, in many cases, complainants would be happy to forgo these very modest compensation payments if instead they had a proper acknowledgment of the injustice they have been caused in the form of a finding of maladministration that is not disguised by any euphemism, and an order to the council that it put things right for the complainant in practical terms. The council would then be better motivated to good practice by the knowledge that any finding of maladministration will be reported as such by the LGO, and might then be reported as such in the local media.

3.15 Often, what complainants need most is an acknowledgment that they have suffered injustice, and to know that there is an institution that can order the council to put things right in practical terms, if it is possible to do so. At the moment, most complainants to the LGO, even those with rock-solid evidence, have their complaints dismissed. The LGO currently has absolute discretion to discontinue an investigation, and to give any excuse or subterfuge that comes to mind for doing so. The CLAE is a biased and profoundly unjust institution that actively works against the good citizen, and that exists to preserve its own interests, the interests of local authorities, and the interests of its political supporters.

4. Recommendations

4.1 The CLAE should be abolished and replaced by a truly independent Local Government Complaints Commission, or else radically reformed.

4.2 There should be a quota to limit the number of senior and junior staff appointed to work for the CLAE or any new replacement commission who previously worked in local government.

4.3 There should be an independent appeals board to consider complaints against the findings of the CLAE or any new replacement commission.

4.4 Judgments of a reformed CLAE or any new replacement commission should be made legally binding.

4.5 Every case of maladministration should be reported as maladministration, even when a local settlement has been agreed as a remedy to the maladministration.

4.6 There should be a grading of maladministration according to levels of gravity, so that the most serious cases are easily identifiable in published statistics.

4.7 The LGO should be forbidden to remove anywhere near the historical 11%—18% of an interview sample for any future customer satisfaction survey. Unless the LGO can provide evidence to the company carrying out the survey that the complainant has suffered a bereavement or similar trauma, it should be expressly forbidden for him to use his absolute discretion to remove from the telephone interview sample any “complainants who might have been emotionally unsettled or abusive if contacted”. Furthermore, any complainants that are removed from a sample should be reported by category.

4.8 It is clear that both the process and the outcome of the LGO’s future satisfaction surveys need to be monitored and evaluated. I would hope that the CLG Committee will take on that responsibility.

4.9 The concept of “The Big Society” is an excellent paradigm, and represents the spirit that inspired the setting up of Local Government Ombudsman Watch and its long and arduous campaign for fairness and justice in the domain of public administration in England. With one or two noble exceptions, our politicians have been indifferent to the clear evidence of injustice and bad practice at the CLAE that has been brought to their attention. It is a matter of great concern that the CLAE has been permitted to continue acting against our citizens’ interests for so long with complete impunity. If “The Big Society” is to result in meaningful and fruitful outcomes, then our elected politicians must work with their citizens, and not against them. This now requires the principled intervention of the CLG Committee as a matter of urgency.

March 2012

Prepared 16th July 2012