Communities and Local Government CommitteeWritten evidence submitted by Joseph David Abrams

(I) Introduction

1. All the members of this Committee of Inquiry are former members of a Local Authority, as have been many past Local Commissioners, the Local Government Ombudsmen.

2. Former Local Authority members have without doubt therefore been party, directly or indirectly to the arrangement known as “Decision by letter”, recognised as without Statutory basis until the Local Government and Public Involvement in Health Act, 2007.

3. The “Decision by letter” is more commonly known as a Local Settlement. In this, the Ombudsman’s Investigation of a complaint by a member of the public to have “sustained injustice in consequence of maladministration” by a Local Authority, is terminated if that authority promises to mend its ways, and pay compensation to the complainant, with the unspoken agreement that no formal, s 31 Report, as was required by the 1974 Act, will be issued.

4. As a consequence, a Local Authority is able to protect itself from adverse publicity, which such a Report might give, when the Local Commissioner, the Ombudsman concerned exercises his legally entitled Discretion as to whether or not to issue a Report. In most cases he does not do so, and future maladministration is not inhibited. It was the clearly expressed intention of Parliament, in the proceedings leading to the Local Government Act 1974 that there should be Reports so as to prevent such future actions.

5. There are about 20,000 complaints of injustice sustained in consequence of maladministration, every year. The number of Reports issued is paltry.

6. The figures have not altered materially since the Ombudsman Jerry White’s evidence to the 2005 ODPM Report on the Local Government Ombudsmen in England—about 30% Local Settlements and 1.5% Statutory Reports.

7. The evidence given by members of the public to the ODPM Committee showed great dissatisfaction with the Local Settlement-Decision by Letter, arrangement, see 2 and 3 above.

8. That ODPM Report was never properly acted upon, because the 2005 General Election changed membership of the Committee afterwards. No members of that Committee are on the present one.

9. This memorandum concerns the deliberate subverting of the democratic process before and during the Parliamentary process relating to statutory approval of Local Settlements.

(II) How due democratic process in relation to the Local Government and Public Involvement in Health Act 2007 was traduced by the Commission for Local Administration in England with the complaisance of Civil Servants

Relevant Law and Documents

Section 23(12) of the Local Government Act 1974 (as amended) requires a Triennial Review by the Commission of that legislation. Although not officially published, the Review has always been generally available to the public for comment. In this submission, reference is made to the following documents, which are not included but, except for (viii), are publicly available, and from the writer if required, to substantiate assertions and comment made:

(i)Extract from 2003 Triennial Review.

(ii)The 2005 ODPM Report on the Local Government Ombudsmen in England.

(iii)Proceedings of meetings of the Commission for Local Administration in England (CLAE), 2005 and 2006.

(iv)“Review of Local Government Act 1974”. A 4 page document, dated 11 November 2005, sent by the Commission to the ODPM which devolved the DCLG in May 2006.This was to be considered for the Local Government White Paper.( I refer to this below as the wish list) See next.

(v)An extract from “Strong and Prosperous Communities”. The Local Government White Paper of October 2006.

(vi)Preamble to the “Local Government and Public Involvement in Health Bill 2007”.

(vii)Hansard for 17 May 2007 with reference to Columns 848 to 864.

(viii)A letter from Tony Redmond to Paul Rowsell Head of Democracy and Local Government Division, at the ODPM, dated 24 April 2006.

(ix)Article by present writer concerning s31 of Local Government Act 1974.

Items (viii) and(ix) are attached or posted

(III) Dealing with the Complaints Burden

To obey the letter of the law, to investigate all complaints of maladministration causing injustice, and to then issue a Statutory Report of the case would be an enormous , if not impossible, task. This is the situation which the practice known as Local Settlement, described in the preamble, 3 above, was intended to deal with. It now covers about a third or of complaints.

(IV) The Legal Situation of Local Settlements

Apart from the absence, until the 2007 Act of any Statutory basis for such settlements, there are other inadequacies in the legal situation:

First, there is no statutory definition of “maladministration” and the Commission has resisted there being one. See evidence to the ODPM 2005 committee: Question 78 to Mrs Thomas the then York Ombudsman. (see paragraph 6)

I offer the following: “Interference, incidental or intentional with the administrative process appropriate to reaching or implementing a decision or action of a public authority”.

This would cover the suggestions of the Crossman list of 1967 and that of the Parliamentary Ombudsman of 1993.

Secondly, the Decision that an investigation that does not come to a Result ie it is not complete, and so does not require a Statutory Report was based on an Appeal Court judgment, totally unrelated to the circumstances of Local Settlements. See my Article.

Thirdly, the widespread discretion given to the Commissioners by the 1974 and 2007 Acts is incompatible, or at least sits uncomfortably, with their former relationship with Local authorities. This, I submit, should be a consideration in future appointment of Commissioners.

(IV) The 2005 ODPM Report and the Public

The answer by Jerry White, a now retired Ombudsman to Q 76 by Chris Mole MP, a member of the 2005 Committee, gives the game away. See paragraphs 5 and 6 in the first section above. Other evidence by members of the public without doubt alerted readers to the way Local Settlements were being employed.

I submit that the members of the Commission became aware that seeking statutory approval of the Local Settlement arrangement (an intention noted in (i) above) might not be straightforward.

(V) Events preceding the passing of the 2007 Act (vi) above

The Bill was enormous and it is the writer’s contention that the desired statutory changes were to be introduced by subterfuge and away from public awareness.

(1)First Reading

The Bill was presented to the House at First Reading, on 12 December 2006 by Ruth Kelly, Secretary of State for Communities and Local Government.

The Preamble to the Bill stated that it followed the Government White Paper “Strong and Prosperous Communities” where a single paragraph, 2.35, of 15 lines, relating to the Ombudsmen refers, in vague and general terms “.... to modernise....working practices....” (See (v) above) However there was no actual mention of the Commission and Ombudsmen in the Preamble to the Bill.

This is where concealment from public scrutiny commenced. As will be seen, that single paragraph was all that the ODPM considered adequate to be presented to the public in the White Paper representing the wishes of the Commission. But in fact the ODPM had received from the Commission a detailed wish list of Statutory changes (item (iv) above). Nevertheless the Bill in its originally presented form, had no Part which referred to the Commission or the Ombudsmen.

At that point, the public was unaware of possible implementation of the Commission’s desired Statutory changes, or what they were.

(2)The Committee Stage

The Bill appeared in Amended form on 8 March 2007 after the Committee Stage, and now included 4 items in a new Part 9:

The Commission for Local Administration in England

Part 9 was 4 items again bear little relationship to the wish list sent to the ODPM in November 2005, item (iv) above. These concerned appointment of Commissioners, Expenses. Electronic Complaints and annual reports.

(3)Report Stage and Third Reading. Events of 17 May 2007

I submit that the events of that day were a constitutional disgrace.

I was some days later informed that at approximately 7.30 a.m. on 17 May 2007, the Parliamentary Website had announced Amendments to the Bill.

At midday Mr. Phil Woolas the Minister for Local Government and Communities moved the adoption of a programme for the Bill, departing from the original one of 22 January 2007: this included amendments to Part 9.

The House was occupied with other important parts of the Bill. There were two divisions and consideration of the Part 9 amendments, presented by Ruth Kelly as Amendment papers in the morning of that day, never reached consideration until 6 pm. (One of your Committee members David Heyes MP was in the House on 17 May 2007.)

Hansard. (vii above) records 10 New Clauses, each one:

Brought up read the First and Second time, and added to the Bill

These gave the long practised Local Settlements the statutory status sought by the Commission and restated the discretion which became related in particular to completion of investigations, as a prerequisite to the issuing of a Report.

According to the Record, all the 10 New Clauses occupied precisely 5 minutes.

There was no way that these amendments were properly debated; certainly no consideration of the way that the facilitation of Local Settlements and with it, concealment of local authority maladministration, from the public was being statutorily authorised.

Erskine May must have been turning in his grave.

For constituents who were aggrieved, myself included, many years ago, at the treatment of their complaints and had been brushed off by the offer of a Local Settlement, any opportunity for them to complain to their MP before the matter was raised in the Bill, was circumvented. And I submit deliberately.

Please look at Redmond’s letter of 24 April 2006 to Paul Rowsell (viii), where he asks for the wish list of statutory changes to count as the Triennial Review. A second official, Cathryn Evans agreed Redmond’s request that a formal Triennial Review 2006, was not necessary, confounding the concealment.

That list was never published. Yet in the proceedings of the Commission, (iii) above, for December 2005, a consultation draft for a statutory 2006 Triennial review was to be considered at a later meeting “whereupon it will be published”. It never was, nor was the wish list, (iii) above. This was more concealment.

Conclusion

It is humbly submitted that Parliament must look again at Part 9 of the Local Government and Public Involvement in Health Act 2007, in particular to:

(1)Its genesis, as detailed in the above Memorandum.

(2)Its anti democratic facilitation of the concealment, from the public of maladministration, a term which Parliament itself must define. See my suggestion, in (iv) above.

(3)The unconstricted use and abuse of Discretion by Commissioners facilitating bias against complainants and against the public interest.

22 March 2012

Prepared 16th July 2012