The Ombie and Human Rights

[vmayflower]

SHC.From which committee were the MPs out to Lunch?
Was it the Human Rights Comission or was it The Committee stage of the 2007 LGAPIIHBill?
Was the Ombie bit of the Bill ever discussed before the Human Rights Commission? I may be wrong but it appears that the form of the Bill signed off by Ruth Kellyi, as compatible with HRs, in December 2006 may have been the format considered by the Hujman Rights Commission before the Ombie bit was included.

The references by the Commission to which activities might "engage " Article 10 do not seem to me to be the ones I am on about.

Before I get too excited .perhaps the LGO discusion forum might like to consider whether acting "in a way incompatible with Aricle 10 "is unjust to every member of the public and, obversely ,acting in accordance with Article 10 is the JUSTICE to which the Human Rights Act entitles every citizen.

[vmayflower]

I am given to understand that Hazel Blears , the Minister for Comminities and Local GovernmentLoca been comtacted on the question of Ruth Kelly's statement about the 2007 Act's compatibility with the Human Rights Act in a 2006 version of the Act that did not cantain a subsequently inserted section on the Ombies.

In my view this was Constitutionsl Malpractice.

In subsequent Poats I shall be giving the terms of the 2007 Act which altered or amended the Local Government Act, 1974 that SCRUTINY which is so blatantly absent from the Hansard record.

Some of those 400+, petition signatories who have just received a slap in the face from the PM ,may find some of my arguments persuasive. If so you may consider there to be adequte reason to notify your MP of dissatisfaction with this manifest abuse of Parliamentary process.

I will quote extensively from the ODPM Report. Taking this to your MP will ensure that some Members may give that Report the detailed attention which would and should have been paid to it, but for the obstruction of Starkey and co.

The ODPM Report entitled "The Role and Effectiveness of the Local Government Ombusmen for England" is now available from the LGO Discussion Forum Post entitled "Self publishing an LGO Report"

[vmayflower]

SECTION 175 0F THE 2007 LOCAL GOVERNMENT AND PUBLIC INVOLVEMENT IN HEALTH ACT)(REFERRED TO BELOW AS THE 2007 ACT
STARTS:-

Section 30 of the Local Government Act 1974 (c. 7) (reports on investigations[/b]) is amended as follows.
(2) For subsection (1) substitute—
“(1) If a Local Commissioner completes an investigation of a matter, he shall prepare a report of the results of the investigation and send a copy to each of the persons concerned (subject to subsection (1B)).




SECTION 30 OF THE LOCAL GOVERNMENT ACT 1974 reads:-


(1) In any case where a Local Commissioner conducts an investigation, or decides not to conduct an
investigation, he shall send a report of the results of the investigation, or as the case may be a statement of
his reasons for not conducting an investigation-
(a) to the person, if any, who referred the complaint to the Local Commissioner in accordance with section
26(2) above, and
(b) to the complainant, and
(c) to the authority concerned, and to any other authority or person who is alleged in the complaint to have
taken or authorised the action complained of.
(rt,
(4) Subject to the provisions of subsection (7) below, the authority concerned shall for a period of three
weeks make copies of the report available for inspection by the public without charge at all reasonable
hours at one or more of their offices; and any person shall be entitled to take copies of, or extracts from, the
report when so made available.
(5) Not later than one week after the report is received by the authority concerned, the proper officer of the
authority shall give public notice, by advertisement in newspapers and such other ways as appear to him
appropriate, that the report will be available for inspection as provided by subsection (4) above, and shall
specify the date, being a date after the giving of the public notice, from which the period of three weeks
will begin.
(6) If a person having the custody of a report made available for inspection as provided by subsection (4)
above obstructs any person seeking to inspect the report, or to make a copy of, or extract from, the report,
he shall be liable on summary conviction to a fine not exceeding £50.]


COMMENT

The essential word is completes .But from the standpointof information to the public , I submit that what is required in every case is the information that the investigation has shown there to have been Maladministration causing injustice.


I have pointed out before tht the nonsense about completeness arose from the judgment in the Maxhuni case in the Court of Appeal in 2002 after the commencement of the Human Rights Act.It is outrageous for the LGOs to use the argument that as an investigation is discontinued no Report isrequired even when the investigation up to that point has shown maladministartion causing injustice The discontinuation bought by a Local Authotity allows the LGO to introduce the Maxhuni judgment as an excuse not to Report. BUT and it is a big BUT, he Maxhuni judgment also said thaif the result of the investigation at whatver stage was if it was found thatt found Maladministration causing injustic had occurred , THE INVESTIGATION WAS NECESSARILY COMPLETE.

In getting the new s 30 sidled in to the 2007 Act , they have pulled a fact one over the public interest.


We, Joe Public are entitled to know whether a Local Authority has committed maladminstration causing injustice.

The section 30 1B crysatallises the silence which the LGO can throw over maladministaraion causing injustice. It reads :-

(1B) If, after the investigation of a matter is completed, the Local Commissioner decides—
(a) that he is satisfied with action which the authority concerned have taken or propose to take, and
(b) that it is not appropriate to prepare and send a copy of a report under subsection (1),
he may instead prepare a statement of his reasons for the decision and send a copy to each of the persons concerned.

Now look how this cuts away any public knowledge of the conduct of its Local Authority..What for heavens sake does "not appropriate."mean?

What use is a "statement tof reasons" that does not reacch the public?"I'm not going to tell you why I'm not going tom tell you."

This is alll nteneded to give an arbitrary discretion to the Ombudsman to ACT IN A WAY INCOMPATIBLE WITH ARTICLE 10 of the HUMAN RIGHTS Act.It appears that some of the readers of these posts believe that even though Freedom of Expressionn by statutei involves the Right to receive information, the HRA is somehow not really applicable.to the situation.Look at the rules in s 30 subsections (4) and (5) above.No report and the Freedom of the Press to notify the public of local maladministration is interfered with if there is no report of a report,Subsections (4) and (5) continue in the 2007 Act.

At least let this matter come properly before tParliament given full facts and able to judge for themselves that if conformity with Article 10 is JUSTICE, then under both the pre 2007 regime( teh Local Settlement and its new clothes ,the 2007 Rules engineered through the back door by the Ombies, there is (in my opinion )only one conclusion. The machinations that go on in the collusion between the two PublicAuthories amount to a conspiracy to pervert the course of that JUSTICE.


Tyere is more to say on the completeness issue and its effects but this post is too long already.

vm





[/b]

[vmayflower]

Trevor, post of Wednesday 14 th Novemebr 2007 qv refers to a Court Action that failed.

A personal friend of mine attended the hearing because he knew the plaintiff and was interested in the Ombudsman situation. Having had a bad experience himself he was even prompted to write to and have published a letter to “The Times”.

He was aware of a legal publication quoted in the court hearing which has considerable, if only historic relevance to the new legislation in the 2007 Bill which I have partly discussed in previous posts. I am inserting below a copy of the publication. If any of the forum are aware of the author or the publication please do not divulge it.I am including it here with the authors permission which is conditional on anonymity.


THE STATUTORY DUTY OF THE LOCAL COMMISSIONER TO ISSUE A REPORT ON THE RESULT OF AN INVESTIGATIONSections 26, 30 and 31 of the Local Government Act 1974[

The author’s objective in writing this article, is to examine the extent of the Local Commissioner for Administration’s duty to issue a report.

The questions posed are the following:

Having found the result that a complainant has sustained injustice in consequence of maladministration,
can the Local Commissioner
(a) use his discretion under s.26(10) to claim, on whatever grounds, to have discontinued his
investigation, and that therefore the investigation was not complete?

and

(b) purporting to rely on the judgment in Maxhuni, refuse to issue a report as in s.30?

In the case concerning the writer, the answer claimed by the Local Commissioner to both these
questions has been yes.


RELEVANT LAW

Section 26 of the Local Government Act 1974 is entitled “Matters subject to investigation”. Subsection
26(1) is as follows:
(1) Subject to the provisions of this Part of this Act where a written complaint is made by or on
behalf of a member of the public who claims to have sustained injustice in consequence of
maladministration in connection with action taken by or on behalf of an authority to which
this Part of the Act applies, being action taken in the exercise of administrative functions of
that authority, a Local Commissioner may investigate that complaint.
It is clearly envisaged and it has become standard practice for inquiries to be made as to whether such a
complaint has any substance, before a decision is taken whether to launch a formal investigation. It is
doubtless for this reason that the Act uses the expression “may” investigate.
The Local Commissioner has discretion as to whether to initiate an investigation into a complaint,
conferred by subs.26(10) which reads:
(10) In determining whether to initiate, continue or discontinue an investigation, a Local
Commissioner may, subject to the preceding provisions of this section, act at discretion; and any
question whether a complaint is duly made under this Part of the Act shall be determined by the
Local Commissioner.
Section 30 of the Act, entitled “Reports on investigations”, states at subs.30(1):
(1) In any case where a local Commissioner conducts an investigation, or decides not to
conduct an investigation, he shall 1)send a report of the results of the investigation, or as the
case may be a statement of his reasons for not conducting an investigation—
(a) to the person, if any, who referred the complaint to the Local Commissioner in
accordance with section 26(2) above, and
(b) to the complainant, and
(c) to the authority concerned, and to any other authority or person who is alleged in
the complaint to have taken or authorised the action complained of.
Section 31 of the Act, “Reports on investigations: further provisions” need not be recited in full here
but its importance derives from subs.(1):
(1) This section applies where a Local Commissioner reports that injustice has been caused to a
person aggrieved in consequence of maladministration
The remainder of s.31 is concerned with the submission of the report to the Local Authority and the
Local Authority’s response.
This article will examine a particular circumstance in which the Local Commissioner claims he can
refuse to issue a report, even though a finding of maladministration had been made.


THE CASE

The relevant facts of this case are that the Local Commissioner confirmed by letter to the complainant,
previously held interim findings that injustice sustained in consequence of maladministration had
occurred. These findings were further confirmed in correspondence from the firm of solicitors who act
as Agents for the Legal Adviser to the Commission.
Asked to explain his decision not to issue a report, the Local Commissioner replied:

Section 30 of the Local Government Act 1974 requires me to issue a report on a completed
Investigation 2). In my letter of 29 April 2003 I explained that I did not consider it necessary to
inspect the Council’s files or interview Councillors for the purpose of conducting my review of
Mr-------s’ (name omitted) decision because I was not persuaded it would be helpful in reaching a
conclusion. Accordingly, as I have not completed the investigation I am not required under s.30 to
issue a report. The investigation has therefore been discontinued under s.26(10)” (emphasis
added)

In requesting clarification from the Commissioner’s legal advisers, the decision in R. (on the application of
Maxhuni) v Commissioner for Local Administration [2002] EWCA (Civ 973) was quoted as the legal
justification for the above position. In this regard it may be noted that in Maxhuni, Simon Brown L.J.
set out the obligations that arise when a report is issued under s.30, so there are administrative
consequences in not having to issue a report.3)

THE MAXHUNI CASE
I
n Maxhuni, an application was made for permission to proceed to judicial review on behalf of 96
residents of a home in the London Borough of Newham, in the name of Ridvan Maxhuni, one of the
residents. The issues that arose were initially related to a proposed rise in the threshold above which
housing benefit would be payable.
An associated issue raised was whether, having embarked upon an investigation into the residents’
complaint, the Commissioner was lawfully entitled to conclude it in any way other than by issuing a
report subject to the provisions of s.30 of the Local Government Act 1974.
What was being claimed was that once an investigation had been initiated, a report under s.30 was
mandatory.
The matter eventually reached the Court of Appeal (see reference above). The proceedings were
concerned with the construction of the word “initiated” in s.26(10) of the Local Government Act
1974.
It was decided that the Local Commissioner, having exercised his discretion to initiate an investigation
under that section, was not under a statutory duty to issue reports if, again at his discretion, he decided to
discontinue that investigation.

Paragraph 9 of the judgment of Simon Brown L.J. is as follows:
“I have come to the clearest conclusion that the respondent’s construction is to be preferred. Bythe same token that the Commissioner has to explain why he never embarked on an investigation in the first place, so too, in my judgment it makes obvious good sense that he should
be required to explain why he has chosen to discontinue an investigation.

The results of annvestigation, however, are something quite different; they necessarily are the product of acompleted rather than an incomplete investigation.
The investigation is, as stated, into a complaint of injustice sustained in consequence of maladministration. The results will state whether or not,
and for what reasons, the complaint has either been upheld or rejected-whether, in the language
of s.31 of the Act “injustice has been caused”. Mr. Nicol Q.C. invited us to read the words
‘results’ as including the circumstances in which the investigation comes to be discontinued and
not merely the outcome of an investigation with regards to the merits of the complaint. It is not
an invitation which I for my part feel able to accept.” (writer’s emphasis added)

In brief, where an investigation is discontinued, the only requirement is to explain why the
investigation has been discontinued. There is therefore an important distinction between initiation and
completion (where a report is required) and initiation and discontinuance (where only reasons for
discontinuance are required).
Comment Whether Maxhuni is relevant is debatable. In that case, matters never proceeded to a finding
of maladministration from which injustice was sustained: the investigation was not completed, i.e. it
was discontinued in a true sense of what, the writer believes, s.26(10) intends, and no result obtained.
Furthermore, reliance on an argument related to an investigation being completed or not is dubious.
Section 30 makes no mention of the word “complete”. 4)For the Local Commissioner to come to “a
result” of an investigation and then to introduce incompleteness as a reason for not issuing a report is, it
is suggested, perverse. Either the result was based on a proper and adequate investigation or it was not.
And as far as discontinuance (in the common sense use of that word) is concerned, one sound reason for
it would be that an investigation which has led to a result has been completed.
How can an investigation not be considered by the Local Commissioner completed, if in the words of
Simon Brown L.J.: “The results of an investigation, however, are something quite different; they
necessarily are the product of a completed rather than an incomplete investigation.”?
What the Local Commissioner appears to be saying is that the result was obtained in face of a
deliberately incomplete investigation. It is not the purpose of this article to go into the merits of the
decision not to investigate further. However the question that arises is how can the result be claimed to
be valid unless such facts (which would “not be helpful in reaching a conclusion” (vs)) as were absent
from the investigation had no legal relevance to the “result” that injustice caused by maladministration
had occurred?{3} It would be clearly unacceptable for the Local Commissioner to come to such a result
when he was fully aware that there might be facts which would affect his decision.
Statutory Duty of Local Commissioner to Issue a Report on the Result of an Investigation

It is not clear why the Local Commissioner appeared to be unwilling to issue a report. 5) His discretion to
control the distribution of the report as in s.30(7) is not relevant to the present case and has not been
quoted by him. But whatever the reason, Maxhuni is not applicable when the Commissioner comes to a
result, the “result” that a complainant has sustained injustice in consequence of maladministration.

I hope you can see the relevance of the Article to Public Awareness of Maladministration committed by a Local Authortiy.Take a wet Towel to the head and read it again but here are some, I hope, helpful notes.
They refer to the Large numbers I have inserted into the text.,

1) Note the word SHALL. . A report is mandatory under the original 1974 Act s 30 (1)..This contrasts significantly with the apparent discretion now given in the 2007 Act to decide “that it is not appropriate to prepare and send a Report” -2007 Act s 30 IB (b)

2) This is the first appearance of the word “completed” which is now consecrated in the 2007 Act..

3) Those administrative consequences are that the LGO need not bother too much about the publicity which sections (5) and (6) of the 1974 s 30 demand

4) Please read the succeeding sentences. IT IS PERVERSE

5) This Article was published in March 2005. Ring a bell with anybody?

It came out before the ODPM Report was published on 7 th April 2005, revealing how the completeness argument is being used by the Ombies to cut out the apparent provisions for public awareness of Local Authority Misdeeds.

The immediate relevance of this to Local Settlement will be discussed at another post .This is long enough.BUT the Author of the Article did not know what a Local Settlement was nor that the complaint was classified as one in the LGOs Statistics even though what the LGO called a Local Settlement had been refused by the complainant.

My next post will be on the LGOs evidence to that ODPM Committee.

Take your time dear reader.Itt IS complicated.and vm is not a lawyer

[vmayflower]

Today is Human Rights Day so I hope to get this in before !2 Mnight


Here are two quotations from he ODPM Report(See previous posts


Q76 Chris Mole In 2003/04 your determinations found maladministration in only 1.6% of cases. Some might consider that to be low. Do you think that is because you are at the end of a process where
Councils mostly will have dealt with complaints or do you think it is because of the definition of maladministration you use?WHAT DEFINITION ?Do you think there should be a statutory definition? .NO ANSWER

Mr White: This is a misreading of our statistics. We issue, in respect of about 1.6% of complaints, a
public report saying we find maladministration causing injustice. Under the heading of local
settlements, which last year was 3,188, which is 27.5% of complaints within jurisdiction, the large
majority of local settlements is where we have found fault causing injustice.. It also includes components of complaints where the council has said, “We do agree there has been fault but we will pay up anyway,” if we are recommending compensation or they will take the necessary action and in some other cases, without us going too far into a case, the local authority has said, “We would like to compensate. .We think something has gone wrong.” We do not proceed to finding a fault where we think that what the council is proposing is adequate. If you add the1.5% to the 27.5 you get 29% of complaints within jurisdiction where something has gone wrong and in almost all of those cases we are satisfied that the council has done something to put it right. It may not necessarily satisfy the complainant but in our view we have put it right. Maladministration causing injustice is around 29% or so of the complaints within jurisdiction.



Q78 Chris Mole: What do you think about the definition of maladministration and whether there
should be a statutory definition?
Mrs Thomas: Personally, I would not go for it.YOU BET The reason we only officially find maladministration in a report is because legally that is the only time we can SAY there is maladministration. So why does White SAY 29% are Maladministration causing injustice –see above
The Act says we should do a full investigation and then we must say whether there is maladministration with injusticeThe 2007 Act does indeed refer to a completed investigation, the LGOs having found fault enter an arrangement for the Local Authority to pay off the complainant and the LGO can then claim that the discontinued investigation is not complete does not warrant a statutory Report,- the Maxhuni judgment. The net result is that the council tax payers and electors are kept on the dark about the instances of maladministration causing injustice This action is contrary to Article 10 of the Human Right Act 1996 and subsection IB of the s 30 of the 2007 Act should be struck out. The LGO cannot defy public interest because he deems it “not appropriate to send a report, whatever thr reasons.He cannot, cannot , cannot be allowed this discretion
The reality is that when we do a preliminary investigation and we think something has gone
wrong, as the Chairman said, we may find fault, that is to say that we have found evidence where we
believe, if we went on to a full investigation and report, we would be saying there is
maladministration(.Does this not imply that a full investigation MIGHT reveal that maladministration causing injustice had NOT occurred In which case money was unjustifiably being squandered as a remedy for a baseless complaint.), but the council accepts that some action needs to be taken at that point and so we do not make a finding of maladministration at that stage. We can only do it legally in a formal report and I think this is one of our difficulties. I do not think the definition of maladministration in an Act
would be terribly helpful. RUBBISH When the Bill was going through Parliament for the Parliamentary Ombudsman there was a list of things which could be maladministration. In our annual reports and,indeed, in the Parliamentary Ombudsman’s annual reports we give examples of the types of things which we have found to be maladministration and delay is probably the most common and a definition would be very difficult. Other ombudsmen services not only look at maladministration, they can go beyond that.
I think perhaps we feel it might be helpful if the word maladministration was not the only word used in our legislation because it is a word that the public do not understand (So how can the public under stand it when even Parliament will not define it, )it is a technical word and it is a word that bodies within jurisdiction react against as well..I think they would be happier if there was a word that was more acceptable, but we are stuck with the legislation we have got.

The Red comment is my own and does not appear in the ODPM evidence

The Green highlighted area is what is in the ODPM text , and I have highlighted it as it is something I wish to make comment on.

MALADMINISTRATION

Parliament must bite the bullet and DEFINE MALADMINISTRATION,.in order to clarify the citizen’s facility to complain about it.s in the 2007 Act , Sections 173, Matters subject to investigation, the new s 1 (a) of s 26 the 1974 Act ,and 174,,Who can complain , new s 26A- Here is the present situation:-

The term “maladministration” is not defined in the 1967 Act. When the legislation was being taken through Parliament, the examples the Leader of the House of Commons then gave (the “Crossman catalogue”) were bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness. The Parliamentary Ombudsman added in his annual report for 1993:
a. rudeness (which might be a matter of degree);
b. unwillingness to treat the complainant as a person with rights;
c. refusal to answer reasonable questions;
d. neglecting to inform a complainant on request of his or her rights or entitlement;
e. knowingly giving advice which is misleading or inadequate;
f. ignoring valid advice or overruling considerations which would produce an uncomfortable result for the “overruler”;
g. offering no redress or manifestly disproportionate redress;
h. showing bias because of colour, sex or any other grounds;
i. omission to notify those who thereby lost a right of appeal;
j. refusal to inform adequately of the right of appeal;
k. faulty procedures; failure by management to monitor compliance with adequate procedures;
l. cavalier disregard of guidance which is intended to be followed in the interest of equitable treatment of those who use a service;
m. partiality; and
n. failure to mitigate the effects of rigid adherence to the letter of the law where this produces manifestly inequitable treatment.
Even this list is not exhaustive. It is completely crazy for a complainant to have to refer to an incomplete list if there is to be a claim of maladministration.
However it is even worse for the LGOs to be in a posirtion to decide what the complainant is going on about. Many complainants have had the brush off from them with the comment:- “It is for me to decide what is or is not malaministration “
The lists, given above must be matched to a Parliamentary Definition.

As far as tbe updated Local Government Act 1974, modified by the Local Government and Public Involvement in Healthh Act 2007, here is my suggestioin fora Definition of Maladministration .
“Interference, incidental or intentional with the administrative process appropriate to reaching or implementing a decision or action by a Public Authority”
This would settle the nonsense evident in the Evidence quoted above by White and Thomas and elsewhere-“fault”, “something has gone wrong etc”. and even “administrative fault “ Terms used to avoid coming clean and saying maladministration has occurred..They avoid saying this except when White lets the penny drop as in the lasrt sentence of his answer.Doubtless he might argue that the 27% were cases of maladministration causing in justice found on the basis of an incomplete investigation..Hence the bilge in Thomas’s evidence:-
“The reality is that when we do a preliminary investigation and we think something has gone
wrong, as the Chairman said, we may find fault, that is to say that we have found evidence where we
believe, if we went on to a full investigation and report, we would be saying there is imaladministration” .

Its very simple.The Ombie takes care not to complete an investigation if it looks as if they might find something reflecting unfavourably on their former mates in Local Authorities .If they did “Find maladministration in a report” they have to comply with the law that may result. in an unfavourable opinion by the public of the Local Authority .That unfavourable opinion would be based on Information, to which Article 10 of the Human Rights Act entitles us.

The nitty-gritty of the matter is the artificial contrivance of discontinuity , allowed legally by discretion but perversely used in the Local Settlement Arrangement to prevent the public from knowing what has gone on.

COMPLETE or INCOMPLETE

The 2007 Act must not be allowed to give the LGO power to use this argument because in fact as in White,s evidence mal adminstation causing injustice has been found to have occurred at a preliminary investigation . This totally negates the statement in the Maxhuni judgment that the result of an investigation necessarily means that the investigation is complete White cannot have it both ways and use the Maxhini judgment to deny thrhe public a report tbecause the investigation has been discontinued, It is discontinued because maladministration causing injustice has been found at the preliminary investigation..The word used in law is that the LGO is Functus officio

To put a stop to this the 2007 Act must have introduced into it a clause which says:-

“A report shall be sent in every case of maladministration at WHATEVER stage of investigation the finding is made”

Those of you who feel frustrated by the failure of the petition might with profit send the contents of this post and others to your MP with a comment tht th e 2007 Bill may need a supplementary procedure in view of the Human Rights Article 10 systematic concealment of information by collusion between two public authorities.

[vmayflower]

My sincere apologies for yesterdays postwhich came outwithout the colours. I repeat the post with my comments on the ODPM questions in upper case lettering and between double square brackets



Joined: 09 Nov 2007
Posts: 24

Posted: Mon Dec 10, 2007 11:58 pm Post subject:

--------------------------------------------------------------------------------

Today is Human Rights Day so I hope to get this in before !2 Mnight


Here are two quotations from he ODPM Report(See previous posts)


Q76 Chris Mole In 2003/04 your determinations found maladministration in only 1.6% of cases. Some might consider that to be low. Do you think that is because you are at the end of a process where
Councils mostly will have dealt with complaints or do you think it is because of the definition of maladministration you use?[[WHAT DEFINITION]] ?Do you think there should be a statutory definition? .[[NO ANSWER]]

Mr White: This is a misreading of our statistics. We issue, in respect of about 1.6% of complaints, a public report saying we find maladministration causing injustice. Under the heading of local
settlements, which last year was 3,188, which is 27.5% of complaints within jurisdiction, the large majority of local settlements is where we have found fault causing injustice.. It also includes components of complaints where the council has said, “We do agree there has been fault but we will pay up anyway,” if we are recommending compensation or they will take the necessary action and in some other cases, without us going too far into a case, the local authority has said, “We would like to compensate. .We think something has gone wrong.” We do not proceed to finding a fault where we think that what the council is proposing is adequate. If you add the1.5% to the 27.5 you get 29% of complaints within jurisdiction where something has gone wrong and in almost all of those cases we are satisfied that the council has done something to put it right. It may not necessarily satisfy the complainant but in our view we have put it right. [u]Maladministration causing injustice is around 29% or so of the complaints within jurisdiction.[/u]

Q78 Chris Mole: What do you think about the definition of maladministration and whether there
should be a statutory definition?
Mrs Thomas: Personally, I would not go for it.[[YOU BET]] The reason we only officially find maladministration in a report is because legally that is the only time we can SAY there is maladministration.[[SO WHY DOES WHITE [b]SAY[/b] 29% ARE MALADMINISTRATION CAUSING INJUSTICE –SEE ABOVE ]]
The Act says we should do a full investigation and then we must say whether there is maladministration with injustice.
[[THE 2007 ACT DOES INDEED REFER TO A COMPLETED INVESTIGATION, THE LGOS HAVING FOUND FAULT ENTER AN ARRANGEMENT FOR THE LOCAL AUTHORITY TO PAY OFF THE COMPLAINANT AND THE LGO CAN THEN CLAIM THAT THE DISCONTINUED INVESTIGATION IS NOT COMPLETE DOES NOT WARRANT A STATUTORY REPORT,- THE MAXHUNI JUDGMENT. THE NET RESULT IS THAT THE COUNCIL TAX PAYERS AND ELECTORS ARE KEPT iN THE DARK ABOUT THE INSTANCES OF MALADMINISTRATION CAUSING INJUSTICE .THIS ACTION IS CONTRARY TO ARTICLE 10 OF THJE HUMAN RIGHT ACT 1996 AND SUBSECTION IB OF THE S 30 OF THE 2007 ACT SHOULD BE STRUCK OUT. THE LGO CANNOT DEFY PUBLIC INTEREST BECAUSE HE DEEMS IT “NOT APPROPRIATE TO SEND A REPORT", WHATEVER THR REASONS.HE CANNOT, CANNOT , CANNOT BE ALLOWED THIS DISCRETION]]

The reality is that when we do a preliminary investigation and we think something has gone wrong, as the Chairman said, we may find fault, that is to say that we have found evidence where we believe, if we went on to a full investigation and report, we would be saying there is
maladministration.
[[DOES THIS NOT IMPLY THAT A FULL INVESTIGATION MIGHT REVEAL THAT MALADMINISTRATION CAUSING INJUSTICE HAD NOT OCCURRED IN WHICH CASE MONEY WAS UNJUSTIFIABLY BEING SQUANDERED AS A REMEDY FOR A BASELESS COMPLAINT ?]],
but the council accepts that some action needs to be taken at that point and so we do not make a finding of maladministration at that stage. We can only do it legally in a formal report and I think this is one of our difficulties. I do not think the definition of maladministration in an Act
would be terribly helpful. [[RUBBISH]] When the Bill was going through Parliament for the Parliamentary Ombudsman there was a list of things which could be maladministration. In our annual reports and,indeed, in the Parliamentary Ombudsman’s annual reports we give examples of the types of things which we have found to be maladministration and delay is probably the most common and a definition would be very difficult. Other ombudsmen services not only look at maladministration, they can go beyond that. I think perhaps we feel it might be helpful if the word maladministration was not the only word used in our legislation because it is a word that the public do not understand
[[(SO HOW CAN THE PUBLIC UNDERSTAND IT WHEN EVEN PARLIAMENT WILL NOT DEFINE IT, ]]it is a technical word and it is a word that bodies within jurisdiction react against as well..I think they would be happier if there was a word that was more acceptable, but we are stuck with the legislation we have got.

MALADMINISTRATION

Parliament must bite the bullet and DEFINE MALADMINISTRATION,.in order to clarify the citizen’s facility to complain about it.For example in the 2007 Act , Sections 173, ,Matters subject to investigation', the new s 1 (a) of s 26 the 1974 Act ,and 174,,'Who can complain ', new s 26A- Here is the present situation:-

The term “maladministration” is not defined in the 1967 Act. When the legislation was being taken through Parliament, the examples the Leader of the House of Commons then gave (the “Crossman catalogue”) were bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness. The Parliamentary Ombudsman added in his annual report for 1993:
a. rudeness (which might be a matter of degree);
b. unwillingness to treat the complainant as a person with rights;
c. refusal to answer reasonable questions;
d. neglecting to inform a complainant on request of his or her rights or entitlement;
e. knowingly giving advice which is misleading or inadequate;
f. ignoring valid advice or overruling considerations which would produce an uncomfortable result for the “overruler”;
g. offering no redress or manifestly disproportionate redress;
h. showing bias because of colour, sex or any other grounds;
i. omission to notify those who thereby lost a right of appeal;
j. refusal to inform adequately of the right of appeal;
k. faulty procedures; failure by management to monitor compliance with adequate procedures;
l. cavalier disregard of guidance which is intended to be followed in the interest of equitable treatment of those who use a service;
m. partiality; and
n. failure to mitigate the effects of rigid adherence to the letter of the law where this produces manifestly inequitable treatment.
Even this list is not exhaustive. It is completely crazy for a complainant to have to refer to an incomplete list if there is to be a claim of maladministration.
However it is even worse for the LGOs to be in a posirtion to decide what the complainant is going on about. Many complainants have had the brush off from them with the comment:- “It is for me to decide what is or is not malaministration “
The lists, given above must be matched to a Parliamentary Definition.

For tbe updated Local Government Act 1974, modified by the Local Government and Public Involvement in Healthh Act 2007, here is my suggestioin fora Definition of Maladministration .
“Interference, incidental or intentional with the administrative process appropriate to reaching or implementing a decision or action by a Public Authority”
This would settle the nonsense evident in the Evidence quoted above by White and Thomas and elsewhere-“fault”, “something has gone wrong etc”. and even “administrative fault “ Terms used to avoid coming clean and saying maladministration has occurred..They avoid saying this except when White lets the penny drop as in the lasrt sentence of his answer.Doubtless he might argue that the 27% were cases of maladministration causing in ustice found on the basis of an incomplete investigation..Hence the bilge in Thomas’s evidence:-
“The reality is that when we do a preliminary investigation and we think something has gone wrong, as the Chairman said, we may find fault [[HERE IT IS AGAIN]], that is to say that we have found evidence where we believe, if we went on to a full investigation and report, we would be saying there is imaladministration” .

Its very simple.The Ombie takes care not to complete an investigation if it looks as if they might find something reflecting unfavourably on their former mates in Local Authorities .If they did “Find maladministration in a report” they have to comply with the law that may result. in an unfavourable opinion by the public of the Local Authority .That unfavourable opinion would be based on Information, to which Article 10 of the Human Rights Act entitles us.

The nitty-gritty of the matter is the artificial contrivance of discontinuity , allowed legally by discretion but PERVERSELY used in the Local Settlement Arrangement to prevent the public from knowing what has gone on.

COMPLETE or INCOMPLETE

The 2007 Act must not be allowed to give the LGO power to use this argument because in fact as in White's evidence maladminstation causing injustice has been found to have occurred at a preliminary investigation . This must be taken in conjunction with the statement in the Maxhuni judgment that the result of an investigation necessarily means that the investigation is complete White cannot have it both ways and use the Maxhini judgment to deny the public a report tbecause the investigation has been discontinued, It is discontinued because maladministration causing injustice has been found at the preliminary investigation..The word used in law is that the LGO is Functus officio, certainly under the pre 2007 legislation.

To put a stop to this the 2007 Act must have introduced into it a clause which says:-

“A report shall be sent in every case of maladministration at WHATEVER stage of investigation the finding is made”

Those of you who feel frustrated by the failure of the petition might consider sending the contents of this post and others to your MP with a comment that the 2007 Bill must be amendied in view of the Human Rights Article 10--systematic concealment of information by collusion between two public authorities.

vm

[admin]

they do work

I have amended the settings so you can edit your own posts, if you would like to do so.

Regards,

Martin.

[vmayflower]

On the Local Settlement and 2007 Act site in this forum , it is suggested that a summary of the present state of affairs should be prepared for transmission to any one interested in the Act having read it and read comments about it, so that this could accompany a letter to be sent to MPs by viewers. I will in due course try to contribute to that.

However, I want to wait for “official” responses on two matters:-
First when I am informed how the matter of the “Commission for Local Government in England” got into the Act without Parliamentary scrutiny.
Secondly, pointed in the right direction by SHC, it is now clear that the Legislative scrutiny of the Bill by the Joint Committee on Human Rights, took place on the version of the Bill that again had not, at that point, had the Ombie Part inserted.

There is not much point in speculating about explanations, so I will not be making any earth shattering statements, except to wish the three Humpty Dumpties, seasons greetings:

“When I use a word (Maladministration) Humpty Dumpty said in a rather scornful tone, it means just what I choose it to mean-,neither more nor less” ( my apologies to L.C.).

Meanwhile here are the contents lists of the first and the second versions of the 2007 Bill

THE LOCAL GOVERNMENT AND INVOLVEMENT IN PUBLIC HEALTH ACT 2007
STRUCTURE OF THE BILL [b]13 Dec 2006[/b] version.(This is what the Jt. Committee on Human Rights scrutinised)
8. The Bill is set out as follows:
• Part 1 - Structural and Boundary Change in England
Chapter 1 - Structural and Boundary Change
Chapter 2 - Control of Disposals etc
• Part 2 - Elections in England
• Part 3 - Executive Arrangements for England
• Part 4 - Parishes
Chapter 1 - Parishes
Chapter 2 - Power to Promote Well-Being
Chapter 3 - Reorganisation
• Part 5 - Co-operation of English authorities with Local Partners etc
Chapter 1 - Local Area Agreements
Chapter 2 - Overview and Scrutiny Committees
• Part 6 - Byelaws
• Part 7 - Best Value
• Part 8 - Local Services: Inspection and Audit
Chapter 1 - Constitution of the Audit Commission
Chapter 2 - Audit Commission and Auditors: Functions and Procedure
Chapter 3 - Audit Commission and Auditor General for Wales: disclosure of information
• Part 9 - Ethical Standards:
Chapter 1 - Conduct of Local Authority Members
Chapter 2 - Employees
• Part 10 - The Valuation Tribunal for England
Part 11 - Patient and Public Involvement in Health and Social Care
• Part 12 - Powers of National Assembly for Wales
• Part 13 - Miscellaneous
• Part 14 - Final provisions

STRUCTURE OF THE BILL 23 May 07 Version
8. The Bill is set out as follows:
• Part 1 - Structural and Boundary Change in England
Chapter 1 - Structural and Boundary Change
Chapter 2 - Control of Disposals etc
• Part 2 - Elections
Chapter 1 - Power of District Councils in England to Change Electoral Scheme
Chapter 2 - Miscellaneous
Chapter 3 - Consequential Amendments
• Part 3 - Executive Arrangements for England
• Part 4 - Parishes
Chapter 1 - Parishes
Chapter 2 - Power to Promote Well-Being
Chapter 3 - Reorganisation
• Part 5 - Co-operation of English authorities with Local Partners etc
Chapter 1 - Local Area Agreements and Community Strategies
Chapter 2 - Overview and Scrutiny Committees
• Part 6 - Byelaws
• Part 7 - Best Value
• Part 8 - Local Services: Inspection and Audit
Chapter 1 - Constitution of the Audit Commission
Chapter 2 - Audit Commission and Auditors: Functions and Procedure
Chapter 3 - Auditor General for Wales and Auditors
• [color=red][u]Part 9 - The Commission for Local Administration in England (Emphasis added )_[/u]• [/color]
Part 10 - Ethical Standards
Chapter 1 - Conduct of Local Authority Members
Chapter 2 - Employees
• Part 11 - Joint Waste Authorities
• Part 12 - Entities Controlled etc by Local Authorities
• Part 13 - The Valuation Tribunal for England
Part 14 - Patient and Public Involvement in Health and Social Care
• Part 15 - Powers of National Assembly for Wales
• Part 16 - Miscellaneous
• Part 17 - Final provisions
All the best, vm

[jaggers]

Looks like you could be onto something that MPs would rather you did not know.

I now see how they changed Part 9. Rather than add the LGO to the end of the Bill, they slip the LGO into the middle (Part 9) and hope no one will notice.

[vmayflower]

It might be of interest to viewers of the forum to learn some of the background to the major changes in the Local Government and Public Involvement in Health Bill 2007(“the 2007 Bill”.) Something to ponder about while we await Hazel Blears’ explanation of How Part 9 got finagled into it.

My concern is Public awareness of Local Authority misdemeanours and inevitably this brings up, the question of statutory reports on the results of investigations.

To the LGOs reports are a b ---nuisance aTony cannot spend more time with CIPFA and Dr Dulux cannot get on with his justifiably highly praised local history studies.

It seems to have started with an “Efficiency Review” of the Commission for Local Administration,(CLAE-the Ombies in England) carried out by KPMG in 2001. I have not read all 70 pages but the Summary is important:-

“The CLAE has to operate within the current legislative framework which is clearly based on the production of reports as a result of carrying an investigation(similarly to the Parliamentary Ombudsman).The Financial Services Ombudsman and the Independent Housing Ombudsman are based on legislation which focuses on THE RESOLUTION OF DISPUTES [color=red]RATHER THAN [/color]THE PRODUCTION OF A REPORT. We consider this approach would benefit CLAE too. The PLANNED MERGER with the Parliamentary and Health Ombudsman will give the opportunity for new primary legislation and this is one of a number of legislative changes which we feel would benefit efficiency in the longer term. ((My capitals.)

Somewhere behind all this is , there’s an argument about Resources.Though having identified what appears to be maladministration causing injustice the resources needed cnnot be all that much to produce a two page report containing the complaint, the Local authority concerned and the Department involved, and whether or not the complaint was upheld.So the Ombies Conflate such reports , probably unnecessarily , but give them the excuse that Resources are not available to produce a long screed so there will not be a report at all.The advantage of taking this lofty attitude is the LA gets away with Maladministration and the mechanism for revealing facts that might provoke public displeasure is avoided..You and I are kept ignorant..

The resources argument applies to the others mentioned in the KPMG Report,the Financial Services Ombudsman and the Independent Housing Ombudsman , if still existing.

There is however a big difference between the Local Government Ombies and others. For example the Parliamentary Ombudsman has no duty to report the results of her investigations to the public via the media.And as far as I can gather the MERGER of LGOs and Parliamentary Ombudsmen is not going to take place in spite of the Regulatory Reform Order of last year. It will be limited to joint investigations where both are clearly engaged from the outset of the complaint.Slid into that Order was a bit about Mediators. I believe that this is a back door entry into “Alternative Dispute Resolution” , which is at least explicit in the Welsh legislation about their Public Services Ombudsman, the 2005 Act

A significant section of the 2007 Bill is all about legitimising ways of keeping the public unaware of the maladministrative actions of LAs, and of course if there are no statutory reports it all “saves resources”.
I still believe that there is a significant Human Rights element in all this.

As has been pointed out elsewhere on the forum, the fact that legislation has now been introduced in accord with the KPMG advice albeit 6 years later, strongly confirms that there was no legislative basis to the Ombie’s conduct in that period- Local settlements etc.

Viewers may also be interested in some facts concerning the parliamentary process discussed previously about how the items of the 2007 Bill concerning the Ombies were nodded through.If you have seen it (the Act on the web)you will all have noticed that the Bill is substantially about alterations, replacements ,repeals and amendments of parts ofthe 1974 Local Government Act Part III

Any serious consideration by MPs of Part 9 of the 2007 Bill would have necessitated knowledge of three matters

(a) The Local Government Act 1974 Part III in its original form.

(b) The changes made to it BEFORE it was altered by the 2007 Bill

© The likely effects of the alterations in the 2007 Act.

As far as (b) is concerned there were some 230 alterations to the 1974 Act prior to the Report stage of the 2007 Bill.

With regard to © , in respect of ss 30 and 31 which I believe to be especially relevant to the Human Rights issue, there had been 28 alterations since 1974 ,before the Report stage of the 2007 Bill and 39 Alterations introduced by the Bill itself. These figures may not be absolutely correct but working them out has taken this obsessional, me, several days. The idea that any of the Members who were in the Commons on 17 May 2007 and who nodded through these alterations, were anywhere near in possession of the facts is simply not credible.

I wish you all Seasons Greetings and thank you for your interest, plus or minus agreement.

vm

[vmayflower]

It was my intention to shut up until after the festive season but an item in last night’s Evening Standard, caught my eye and it means wading through my musings before you will get the point. It is related to the ”Local Government and Public Involvement in Health” Act 2007, about which I claim there are concerns related to Human Rights.

It is announced that Mayer Brown Rowe and Maw (MBRW), the City law firm, is to merge with a Hong Kong firm.This matter has a history. Mayer Brown, a Chicago based legal outfit, merged with Rowe and Maw , a British firm in 2002.

Anyone who had legal dealings with the Ombies may have came up against Rowe and Maw who often acted for the LGOs or at least for aTony.

A particular individual **** in the employ of Rowe and Maw, was the one usually involved.The kind of thing this related to, was, for example, if someone was intrepid enough to suggest seeking judicial review of an Ombie’s decision, a standard procedure was for that individual to suggest to the applicant that if he/she would withdraw the application the Ombie would then review the case. This manoeuvre was successful in several instances and the individual recited the success of this tactic in a career description on the firm’s web site.(It is well recognised that applications for judicial review against the Ombie rarely succeed.)

I believe it extremely unlikely that Rowe and Maw were acting pro bono, so you and me and all taxpayers, were coughing up for this legal advice.

Patience, dear viewers, I ‘m getting to the point. Here is section 29 subsection (6) of the original Local Government Act 1974:-

(6) To assist him in any investigation, a Local Commissioner may obtain advice from any person who in his opinion is qualified to give it and may pay any such person such fees or allowances as he may determine WITH THE APPROVAL OF THE MINISTER FOR THE CIVIL SERVICE.
(My CAPITALS)

I am pretty certain that such advice was never sought and I think it a bit rich that this is perhaps another example of what was effectively cooperation between Tony Blair (the then Minister for the Civil Service) and our US ally G Bush:- English tax payers’ money used to get advice from a US based legal firm.

However someone must have pointed this out to the Ombies, because Schedule 12 of the 2007 Act now repeals the words in CAPITALS. So it is now OK to spend our money wherever they like.

However……….

When Mayer Brown joined Rowe and Maw,
They got a lot more than they bargained for,
In the work of ****
With talents as fibber which,
Bar a folk’s access to Law.

PS The entire Public Law team of MBRW, including **** has now decamped to Beachcroft LLP. , a purely British concern, I presume, so the Ombies who now employ them can now pay without worrying- if they ever did- about the PM’s permission, and with no qualms-if they ever had any- about taxpayers money being exported to the US.

Merry Xmas .

vm

[vmayflower]

Happy New year to all the forum’s viewers.

Well where are we? I am going to assume that many of you share a view that the New 2007 Bill does nothing to increase publicity and transparency which the law might be expected to give the public concerning Local Authority maladministration.Far from it. The extension of the Ombudsman’s remit seems to me to be just another area where the exercise of his/her discretion is going to be used to keep out of sight facts which might influence the reelecatbility of those ultimately responsible for that maladministration.

On the contrary, the Act has provided even more shenanigans to further the protection by the Ombudsman of his former colleagues in Local Government.

The mantra is Avoid a report at all costs, and no conscience , such as a HR duty to ensure the right under Art. 10 to receive information,must be allowed to interfere now that Local settlements are on the Statute Book.

Well here is some more of how it was done.

We already know that the proceedings in the Commons included no scrutiny of the sections 168 onwards of Part 9 of the Act dealing with the Ombies.

You will all doubtless be interested to learn that a similar miniscule degree of scrutiny was paid to them in the House of Lords. It is very naughty of me to recite this in extenso but it makes for a reference to another great English literary figure, besides Lewis Carroll whom I included in a former post.

The Lords ‘discussed’ those parts of the Act between 10 30 pm and 10 45 pm on 17 July 2007.One amendment was put by Baroness Hamwee apparently with some diffidence because of the late hour.In fact what she said was: “It is nearly the witching hour”.I think this DID refer to the time of day but it had a curious resonance which you might all appreciate when you will realise, if you look up Hansard for that day (Columns 243-246) that the only members with any comment at all were Three Baronesses;-Andrews, Crawley and Hamwee.
Without of course any reflection on the Character of these Noble Ladies, some might consider it unfortunate that a reference to “witching” and to three females could call to mind the opening of one of Shakespeare’s tragedies.

All the sections of Part 9 of the Act went through virtually on the nod apart from one or two minor technical amendments, which are not relevant to my contention that in the Lords as in the Commons there was no serious scrutiny of the major alterations to sections 30 and 31 of the 1974 Act. Incidentally if you do wish to look up Hansard for 17 July 2007 you will find that the Section numbers are incorrect by a factor of 1. I.e. the Lords Reference to, for example, s.176 is actually referring to section 175 of the Final form of the Bill

The question of the Statement of Compatibility of the 2007 Act with the Human Rights Act has been answered in a letter from Parmit Dhanda MP, the Parliamentary Under Secretary of State to the Department of Communities and Local Government, replying for Hazel Blears. He quotes a web site supposedly to a revised version of the Explanatory Memorandum Bill 74 EN when the Bill was introduced to the Lords . This web site is unobtainable and the version of the Explantory Memorandum which IS on the web does not contain a Statement of Compatibility.

Anyway who is the Explanatory Memorandum for? Is it for MPs or for the Public?

vm

[jaggers]

vmayflower
Have you considered writing a blog about your case? A blog allows you to publish the local settlement and put it in the public domain.

If the law is not on your side, why not take action to redress the situation? A blog allows you to publish what the Local Government Ombudsman want to conceal from the public i.e. maladministration and injustice.

[paul]

Alas and alack, what vm has to say about our elected and unelected representatives rings all too melancholy a bell. Almost without exception they are unwilling to engage with the issues raised by complainants. And why not? Because for politicians there is only grief to be gained by crossing swords with officials, maladministrating or not. Or with the powerful vested interests that maladministration no doubt serves on occasion. Typical is the response of my local MP (Albert Owen, Labour) when asked what he proposed to say or do about my local maladministrating Council (Ynys Mon) after the Welsh LGO had found them guilty of breach of statutory duty. His reply at least had the merit of brevity. "Nothing." The reason he and others get away with this breathtaking cynicism is that the UK press and media are so cynically compliant in the fraud, e.g. BBC Wales, whose logo is (you'll like this) "Accountable to you."

BTW did vm get the pm I sent a few weeks ago?

Cheers, Paul

[jaggers]

Below is a quote from wikipedia. I cannot say whether the statement is correct.

‘English law does not know judicial review of primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to EU law (see Factortame). Although the Courts can review primary legislation to determine its compatibility with the Human Rights Act 1998, they have no power to quash or suspend the operation of an enactment which is found to be incompatible with the European Convention of Human Rights - they can merely declare that they have found the enactment to be incompatible.’

http://en.wikipedia.org/wiki/Judicial_review

[vmayflower]

Thank you jaggers for the info.

I am not in the business of going to judicial review to try to alter the 2007 Act.
I can envisage several scenarios:-
.
(a) Nothing will happen—most likely.And the LGOs, secretly gloating over the distortion of the Parliamentary process, will continue in their own sweet way.

(b)The Joint Parliamentary Committee on Human Rights might go over the subject and conclude, like Trevor, jaggers , Ann et al that there is no Human Rights issue related to Information and statutory reports.

© That Committee will realise that it, like most of Parliament,( and all of us) has been conned, as it never had the opportunity to put its spoke in about Human Rights (if they think there is an issue). But then make up its mind what there is to do about it.

(d) They decide they cannot do anything OR

(e) They refer the matter back to the Commons and Lords but what can they do?

Either ….

(f) Decide to do nix OR

(g) Debate the matter properly and then order a Statutory Instrument, repealing what we will tell our MPs are the offensive sections of Part 9 of the 2007 Act. Some hope !

This does however suggest a course of action for us. Courage mes enfants.

vm

[jaggers]

(b)The Joint Parliamentary Committee on Human Rights might go over the subject and conclude, like Trevor, jaggers , Ann et al that there is no Human Rights issue related to Information and statutory reports.

I did not comment on whether Part 9 of the 2007 Act was incompatible with the European Convention of Human Rights.

[vmayflower]

Sorry ,Jaggers,my mistake again.I have rather lost track of the very early posts on this topic.vm

[vmayflower]

The History of the 2007 Deception. Part 1

While awaiting some Parliamentary response to questions raised by the procedures in the passage of the 2007 Act,viewers may perhaps find it appropriate to go over the history leading up to it. Much of this repeats what has already been presented in previous posts on this Human Rights post, some is new to the forum.

(I) 2001. The Efficiency Review

Although there is some evidence that the fall in the number of statutory reports of maladministration causing injustice may have started with White’s appointment as LGO in 1995, I believe the real rot probably started with the “Efficiency review” by KPMG in 2001.This, to put it bluntly, came up with the desirability ,(to the Ombies) of cutting down the number of reports on investigations.That oeuvre paid no attention to the fact that in every case of a complaint to have sustained injustice at the hands of a Local Authority, we must keep reminding them and ourselves that there are FOUR parties to any matter being investigated by the Ombies.These are:- the Local Authority, the LGO, the Complainant and the PUBLIC ie the citizens resident in that Authority..

KPMG appear to make out that reports were a waste of time and that compensating the Claimant was the prime object of investigating. They simply ignored s 30 of the 1974 Act which relate to Publicity and Transparency, and to support their view brought up a comparison with other Ombudsmen who have no legal obligation to the public.

(A second feature of their view was that of amalgamating the LGOs with the Parliamentary Ombudsman.I will deal with this below).

(II) 2002. The Maxhuni judgment

This states that where an investigation is not complete no statutory report is required. The Ombies have seized on this in the Local Settlement swindle, they clearly will now try to perpetuate. If they discontinue an investigation they feel no obligation (‘are not required ‘…) to send a report., and of course they have managed to insinuate this approach in ss 171 and 175 (“only a complete investigation requires a report”) of the 2007 Act., without debate. Does this not look like the legal tail wagging the Parliamentary dog? I always thought it should be the other way round.

The question as to whether the Maxhuni judge realised that there was a Human Rights issue in the Ombie’s using the judgment in the ‘Local Settlement, (therefore no report )arrangement’ remains open..The senior judge in the case told me that given a situation where maladministration causing injustice had been identified,( And as we now know , three years later, that to be the case in 28% of complaints- see(IV) below), his judgment appeared to be being misapplied..

In the course of the Maxhuni proceedings one of the judges in the lower court stated that the object of the judgment was to make the investigation inconclusive so that no report was necessary, as no result obtained, but surely this was not applicable to a situation where the result -maladministration causing injustice had been found.

The problem with this is what is the Ombies’ legal duty when, whatever the degree of investigation before it was discontinued,it had shown there to have been maladministration causing injustice? If they exert their Maxhuni generated scheme as part of a collusion between LA and LGO in these circumstances, then this is a perversion of the public’s right to be informed, as in Art 10, in a report.

The final thing to say about the Maxhuni judgment is the throw away coda by the judge to the effect that if an investigation is discontinued all that is required is “a statement of reasons why” .Ring a bell,anyone? Another example of the legal tail wagging the Parliamentary dog. See the new title of s 30 of the 1974 Act at s 175 of the 2007 Act:-“Reports and statements of reasons”.

But look at where the statements of reasons are to be sent, There is no suggestion that an explanation to the public is due of “the reasons why”. Having used parts of the new Act to conceal maladministration causing injustice we, the public, will have no entitlement to know “why” there has been no report or why the investigation has been discontinued as the very fact that there ARE reasons is to be concealed from us.

(III) 2003 Decision by Letter and afterwards.The Triennial Report

The LGOs seized on the idea of avoiding reports .and in the 2003 Triennial Report by the Commission (all the Ombies), we hear perhaps not for the first time the catch phrase “Decision by Letter” where it is stated that if the LGO considers that some action has been taken which is considered a satisfactory response to the complaint “the Ombudsman decides to discontinue the investigation by letter and without publishing a report” (To avoid confusion, the Triennial REPORT is NOT the s 30 Report which my posts have all been about.. The Triennial Report is an account the Ombies have to give to the government every three years about their general activities.)

It is stated that this, procedure,Decision by letter, is proper because the LGOs have counsel’s advice but it is recommended “that the 1974 Act be amended to give express recognition to the current practice of discontinuing investigations by letter…”

A couple of comments here. First of course is that Parliament has given that statutory recognition in section 171 and 175 of the 2007 Act. And, in my view, this has in the past and will now in the future guarantee that the Public, the fourth party to LGO investigations, will lose its right to receive information, Article 10 of HRA 1998.In the vast majority of cases, the public will not to be allowed to know whether their Local Authority has, or has not committed maladministration causing injustice.

Secondly, I wonder how many of you have ever seen or been the subject of “Decision by letter”. It really is a swiz of the first order. An investigator fixes the terms of “a just remedy” than the LGO writes a letter to the claimant which says: “I think this is a just remedy and if I hear nothing more from you in the next three weeks I will discontinue the investigation”.The immediate impetus to discontinuation is the complainant’s not MAKING A REPLY
.But why should there be further communication? The complainant takes it, as you and I would, that the offer of a just remedy is vindication of his complaint of “having sustained maladministration causing injustice”. But if and when he or she keeps silent, the Ombie (Now of course with s 171 behind him) acts in a way to conceal that vindication from the public.

The “Decision by letter” is now one of the statutory “Statement of reasons”

Part II follows soon
vm

[Trevor]

I've been trying all day to send this post to the main forum where the LGO and Human Rights is being discussed. There seem to be all kinds of technical problems.

Paul

My ancient brain has been taxed of late keeping up with vm's posts (no reflection on vm). vm says "we must keep reminding them and ourselves that there are FOUR parties to any matter being investigated by the Ombies.These are:- the Local Authority, the LGO, the Complainant and the PUBLIC ie the citizens resident in that Authority.."

As I understand it, the 1974 Act specifically excludes the public interest from consideration, as far as the investigation is concerned: "A Local Commissioner shall not conduct an investigation in respect of any action which in his opinion affects all or most of the inhabitants of the area of the authority concerned." (Section 26/7). Inevitably, though, the Ombudsman is going to find that there are occasions when maladministration of which an individual has complained does in fact affect and impact on the public interest. Then he finds himself on the horns of a dilemma. Does he act to defend the public interest, or does he slam the door shut in the face of those trying to secure it - on the basis of the findings of maladministration made in his report? No prizes for guessing the preferred LGO response but if in doubt see http://psow.co.uk/archives/ombiepromotemalad.html. The worst of all worlds, which the Welsh O. blundered into in 1998, is offering options that would remedy breach of statutory duty, in conjunction with a compensation option that provides an easy get-out for a maladministrating Council. Pitch a few hundred quid at an individual complainant, and let the mal stand. Could anything be more calculated to bring the office, or local government, into disrepute?

The latest developments to which vm draws attention, concerning the cutting down on reports on investigations, are regrettable, but understandable and very true to form, as far as LGO is concerned. The public is an unpredictable, unmanageable constituency, and doesn't take kindly to being fobbed off with long-winded legalistic nonsense. As such, the more it can be kept out of the equation, the better for the maintenance of a status quo which favours maladministrating officialdom at the expense of openness, accountability and justice.

The pity of it is there are some in the LGO's office, at a junior level, one suspects, trying to do a decent job. But the system won't allow them to. Well FWIW, that's my take on it.

Paul

Posted on behalf of Paul due to technical problems.

[vmayflower]

The History of the Deception Part 2

(IV) 2005 .The ODPM Report. The Role and Effectiveness of the Local Government Ombudsman for England April 7th

Comments about this are scattered in previous posts, but the most important is White’s answer to the question (Q 76) by Chris Mole who comments about the small number of reports of findings of maladministration:-“Some might consider that to be low”
White admits that thousands of cases a year, of maladministration causing injustice, are concealed from the public as there no reports.

Well that of course is, I believe, what some on this forum are concerned about. And on the topic of Human Rights it is the central issue in relation to the Right to receive information and impart it in expressing our electoral view.

There is not much point in rehearsing the rest of the proceedings in the evidence given to the ODPM Committee. But following on this sequence we come to

(V) 2005. The Government’s response to the ODPM Report. October

“The Committee’s Recommendation
Recommendation 1: We recommend that ODPM publish a clear summary of what progress has been made in addressing the recommendations contained in the Commission for Local Administration in England’s 2003 Review.

The Government accepts the importance of taking forward work following the CLA’s 2003 review and indeed other proposals for the future of the Local Ombudsman, IN A TRANSPARENT AND OPEN WAY.(vm’s capitals- now see (VII) below)
The Government notes that the supplementary memorandum which Nick Raynsford submitted to the Committee on 15 March, and which summarises the progress that had
been made in addressing the 2003 review, has been published by the Committee as a annex to its report on the Role and Effectiveness of the Local Government Ombudsmen for
England.
Since that memorandum was submitted, a consultation paper has been published by the Cabinet Office on a draft regulatory reform order to facilitate closer working between the Local Ombudsman and the Parliamentary and Health Ombudsman. The paper was published on 2 August and comments are requested by 18 November. Copies of the paper have been placed in the library of the House, and were also sent to the Select Committee Secretariat for circulation of all Select Committee Members.

Supplementary memorandum from the Office of the Deputy Prime Minister (LGO 01(a))
Thank you for your letter of 15 March to the Deputy Prime Minister, following on from your session to hear evidence from the three Local Government Ombudsmen about the role and effectiveness of the Ombudsman service.
You ask about our response to the Ombudsman’s most recent triennial review of the provisions in Part III of the Local Government Act 1974 on the investigation of complaints. The review is required under Section 23(12) of the Act.
I am disappointed to learn that the Committee is under the impression that the office has failed to respond to this review. The review was completed in May 2003 and was included in the Commission’s 2002–03Annual Report, published on 3 July 2003. The conclusions and recommendations of the review, and an appropriate response and timescale for action on these, were initially discussed at a meeting between the Commission and officials on 10 July 2003. They have featured on the agenda, as necessary, at a series of regular meetings between the Commission, officials and Ministers since then.
The focus of the Commission’s recommendations was on measures to facilitate closer working between the Local Government, Health and Parliamentary Ombudsmen. At a Ministerial meeting with the Ombudsmen in November 2003 it was agreed that, as there was no prospect of an early opportunity for primary legislation to remove the legislative constraints on collaborative working, the Cabinet Office would explore alternative means to effect the desired changes. As you will know from our memorandum and the Commission’s evidence, the Ombudsmen and the Office are currently working with the Cabinet Office on the preparation of a consultation paper on a draft Regulatory Reform Order which would amend primary legislation to remove these constraints.
The remaining recommendations in the 2003 review concerned matters about which it was agreed that, although clarification of the Ombudsman’s jurisdiction and powers in the 1974 Act would be helpful, they did not represent a practical hindrance to the Ombudsman’s operations which required urgent action. As the Commission were told, changes to address these matters would require PRIMARY LEGISLATION, (This was of course the 2007Act 2 years later ) and it was made clear to them that when a suitable legislative opportunity arose, we would, AFTER CONSULTING MORE WIDELY !!!! (again my capitals) about any proposed amendments, be seeking to take forward the agenda.I hope this will reassure the Committee that the Office has responded fully to the Commission’s 2003 review, that we are acting on its main recommendations, and that we shall continue to keep in close and collaborative contact with the Commission on addressing the other, less pressing, matters which the review raised.
Nick Raynsford”

(THIS IS THE END OF GOVERNMENT RESPONSE TO ODPM REPORT)

My final Comment about the ODPM report. The Government response did nothing to answer or even comment on the glaring inconsistencies in the evidence of the LGOs’answers but did promise or threaten to legalise the behaviour of the Ombies by future legislation ,the PRIMARY LEGISLATION , which was the 2007 Act, AFTER CONSULTING MORE WIDELY. So what happened next?

(VI) 2006 OctoberWhite Paper ( or some such)”Strong and Prosperous Communities”

In view of the extensive Part 9 of the 2007 Bill, to do with the Commission,( the LGO- see(V) above) , it might have been expected that some full explanation of what was going to come in the Act , would have been included in this White Paper.This is particularly so in view of the undertaking to consult more widely, about any changes to come
(DUE DEFERENCE TO SHC WHO RAISED THIS MATTER IN HIS 16 APRIL 2007 POST-“LG&PINH” )

There is absolutely no hint of many of the sections 168 et seq of the 2007 Act. . Because as we all now know these were introduced a month later in the Report stage of the Bill.These changes are by far the most serious amendments and alterations to the 1974 Bill, which created the LGOs, since it was introduced.

(VII) 2006 12 December: ‘Local Government and Public
Involvement in Health Act’ published , with statement by Ruth Kelly that it was compatible with HRACT 1998. There is nothing in the Bill about Local Government Ombudsmen, at that stage, nor is there anything , therefore, corresponding with the related section in the 2006 white paper-see(VI) above.
Does this not suggest that the Government lawyers were aware that what was to become Part 9,about the LGOs, MIGHT indeed be contrary to the HRA and that Kelly’s Statutory Statement HAD TO BE MADE BEFORE THE BILL CONTAINED THAT PART?

Not only that, the Joint Committee on Human Rights, were not to be allowed to be in a position where they could scrutinise the form of the Bill including Part 9


(VIII) 2007 The Regulatory Reform Order(RRO)

This dealt with cooperative working in joint investigations but, I believe fell short of the full amalgamation between the Commission of Ombies and the Parliamentary and Health Service Ombudsman.
Cooperative investigation ,yes , amalgamation, no.
This Order also introduced Mediation (.note: not Alternative Resolution of Disputes (ADR) as in the Welsh Ombie Act of 2005)).
How this works in a way different to a Local Settlement is not clear. Perhaps it involves strong arm tactics such as a half nelson to “persuade” a complainant to withdraw his complaint.

I believe that the RRO had no major alterations to the 1974 Act of the matters relating to investigations and Reports. To comply with the new law it will possibly take a new form of Local settlement:-“Withdraw your complaint and the LA will give you a few bob”.Again a form of bribe that would effectively be a perversion of the justice qua Art 10 HRA, to which we the public are entitled.

(IX) 2007 April Petition to Downing Street, See (XI) below

(X) 2007 May to October, Part 9 of the 2007 ACT introduced

Its inclusion traduces the Parliamentary process-no debate or scrutiny, and ignoring important elements of the Human Rights Act 1998,side stepping the matter of compatibility with that Act.

(XI) 2007 October 30 “Local Government and Public Involvement in Health Act” receives Royal assent.

(XII) November Petition rejected .”Modern methods of service delivery” will,in my view, offend, as they have in the past, HRA1998

vm

[jaggers]

The Government’s response to the 1st petition stated:

Provisions in the Local Government and Public Involvement in Health Bill therefore aim to bring the Ombudsman's operations in step with modern means of service delivery. The provisions were informed [formed?] by consultation with local government and citizens advice services, and feedback from those who have submitted complaints to the Ombudsman.

This statement does not tie in with the fact that Part 9 was slipped into the Bill at a late stage. So is the statement yet more deceit and deception by the Government and the Local Government Ombudsman? I suspect the LGO had some input into, or more likely drafted, the response to the petition.

You may like to make a FOI request for a copy of the feedback from CAB and complainants resulting from the consultation procedure referred to. There was some consutation on regulatory reform, but I do not believe there was consultation on the provisions of Part 9.

[vmayflower]

Thank you Jaggers for the IFO suggestion.
There is one aspect of my whole going on about how the Ombies conceal information. Supposing I learnt from the Annual Statistics that there had been a number of Local settlements with my Local Authority.
The legal clever clogs acting for the LGOs might argue that I could ask for information about them such as "were these cases of Maladministration causing injustice?" and the Information qua Article 10 of the Human Rights ACt 1998 is thertefore available to interested members of the Public.
I can only speculate on how the LGOs would try to wriggle oit of having to answer the question directly.But the availability of the answer in time for an electoral decision (Article 3 of he First Protocol)means that a delayed answer under the FOI Act would be useless.And that is why a s 30 Report with its immediately available information is a vastly different animal from information extracted under the FOI Act.

As a ps to this post . I would be most grateful for viewers' opinions on what, (apart from how it got in) THEY think is wrong (if anything) with Part 9-"The Commission for Local Administration in England" of the "Local Government and Public Involvement in Health Act 2007".(Some comment has already been made-see Jaggers' comment on the "legalisation of local settlements" )Either by posting on the forum or by private message to me. Thank you vm

[vmayflower]

Earlier Posts on his subject raised the question of the compatibility of the 2007 LGAPiIHAct with the Human Rights Act and it was suiggested that Hazel Blears be asked about it.A Minister from the Department of Communities and Local Government , the Department responsible for the Bill, has replied to the question of Statements of Compatibility made in Parliament.
I have seen a copy of the reply and we will all be glad to hear, iI am sure , that every thing was done properly. So thats that.
However, the last paragraph of the letter is interesting.Here it is:

"Your Constiuent might wish to know that the Ombudsman is a "public authority" for the purposes of the Human Rights Act 1998 and consequently is PROHIBITED FROM EXERCISING ANY POWER IN A MANNER WHICH IS INCOMPATIBLE WITH ANY OF THE HUMAN RIGHTS SPECIFIED IN THE EUROPEAN CONVENTION OF ( sic) HUMAN RIGHTS . It is for this reason that the government is satisfied that no provision in Part 9 of th the Local Government and Public Involvement in Health Act can contravene anyone's human rights."

(My capitals)

I am of course flattered by the first sentence to have my very first post on this topic confirmed at such a high level.

As far as the last sentence goes, up North we have an expreassion arising from a diner's complaint to a waiter:-"There's a dead fly in my soup" Peply "Yes sir its the hot water that kills 'em" vm

[shc]

The Bill presented to parliament for the Public Involvement in Health Act for First Reading was identified as not being compatible with the European Convention of Human rights - and clarification was sought from the Minister by the joint Committe on Human Rights in a letter dated 23 january. Ministers according to their Departments are never wrong (as they are advised by their Departments)... and in the case of s9 of the LGPIHA it is just unfortunate that all the elected representatives (nominated by their local associations.. the same people that approve the lists of prospective local councillors went to lunch... and failed to scrutinise the Bill (and the WOOLAS ammendments)...

Parliament is not a public authority with respect to a bill (or an act). However, the minister is.. and as such are required to ensure compatibility of any bill with the ECHR.. If the Minister fails to ensure compatibility there is a breech of the Ministerial Code. Alleged breeches of the Ministerial Code are investigated by the Secretary to the Cabinet Office. The Secretary to the Cabinet Office has identified (following a letter) that they are examining if there has been a breech.

The issues are reasonably straightforward.. as local authorities are responsible for initiating proceeings under the criminal law.. for certain issues (particulary relates to planning)... and they can find themselves breaking the criminal law when they authorise a planning consents (and/or authorise their head of planning to do it for themselves). A Council solicitor is identified as being responsible for initiating proceedings against their employer by the Secretary of State.

Phil WOOLAS replied for the Secretary of State (Appendix 4 Joint Committee on Human Rights - 13th Report).. and admitted that the bill was not ECHR compliant.... the issue related to the Code of Conduct of Local Authority members (following Livingstone v Adjudicator) and Parliament was asked to clear up ambiguity in this regard with respect to when the code of conduct governing local authority members appplied. Woolas stated...

'Whilst it could be said that in some circumstances Article 8 (right to respect for private and family life) and Article 10 (right to freedom of expression) may be engaged by clause 131 (now 141) of the Bill, we believe that in practice the clause will only ever be exercised in a way which is compatible with those rights. The rights of people to free speech and to a family life are already restricted in through a number of criminal offences. Such restrictions are considered necessary in the interests of public safety, for example, for the prevention of disorder or the protection of morals. Since we are proposing that the code of conduct will only apply in respect of behaviour in a private capacity where there has been a criminal conviction, we are not interfering in any person's human rights to any extent which is greater than the criminal law already provides. For the reasons indicated, we therefore consider that the proposed provision is capable of being exercised compatibly with Articles 8 and 10.'

The rights of the administration [elected representatives] of a local authority were considered as part of the bill (now act). However, the rights of the electorate [those affected by planning decisions were not..

This takes us to the Ombudsman and maladministration... and a failure to allow (give the) the Ombudsman the ability to initiate criminal proceedings against a local authority that has committed maladministration... and that they have identified as having done so [and have all the administration barred from holding office]. Such a 'cudgel' would help focus minds in a local authority [and would also be judicially reviewable].

The Ombudsman gives findings of maladministration (reports and local settlements) under the criminal law against a local authority fairly frequently. However, I have yet to see a local authority elected representative (member of a political party) being identified as ceasing to be suitable to hold public office.. as there is no conviction... Surely, the Ombi as an Inquiry (governed by the ECHR) beyond any reasonable doubt identifies the acts of crime of local authorties... and their failure ('inability') to prosecute causes a contravention of the ECHR (and makes the LGPIHA) incompatible with the ECHR.[/b]

[jaggers]

This takes us to the Ombudsman and maladministration... and a failure to allow (give the) the Ombudsman the ability to initiate criminal proceedings against a local authority that has committed maladministration... and that they have identified as having done so .

The Ombudsman gives findings of maladministration (reports and local settlements) under the criminal law against a local authority fairly frequently.

These 2 statements appear to me to be contradictory. What specific criminal law are you referring to?

[shc]

Hi Jaggers,

The legislation is the Planning (Listed Buildings and Conservation Areas) Act 1990..['PLBCA']...[specifically s7 and s9] The Town and Country Planning Act, 1990 has similar provisions... as does most of the planning legislation. You have a right of appeal against a 'conviction' if you are the applicant for the consents to the Secretary of State. However, you do not have a right of appeal if you are not the applicant. If you fail to appeal (or your predecessor in title failed to appeal) - then you are convicted, and the Local Authority has a right to enforce judgement through the magistrates.

The Local Land Charges of a Local Authority are a title registry, whilst those maintained by the Land Registry (national government) are not unsurprisingly a land registry. You can end up with the land not being in conformance with the title (due to a local authority authorising changes in boundaries) in its role as a planning authority. This causes a lot of problems particularly in relation to listed buildings - as if the Local Authority misidentify the listed building and grant consents (they can authorise an extension of one listed building and the demolition of another). s7 of the PLBCA is very clear that the act of authorisation by a Council is a criminal offence (if they have misidentified the building) - and allowed extension of one and demolition of another.

We have a very specific instance of this occuring (personal to ourselves).. where the Council admitted to having done it (acted criminally) in 2005 (authorising demolition of a listed building different to the one to which it awarded planning consents after the limitation period).. the act of Crime by the Council was in 1996 the Ombi identified that it was highly probable that the Council had probably done it.. [1999].. and the Secretary of State [2006] identified that it fell outside their powers.. (in our case we even got to the stage where the Council has admitted to both High Court and Secretary of State that they have committed a criminal act against us.... We are aware of at least another two cases where this has occurred (ie. Council admits to having committed and supported an act of crime covered by the Criminal Law).... and then prosecuted the victims..

The Council Solicitor is responsible for initating proceedings against himself (registrar of local land charges), and the Council... the police won't initiate proceedings against a Council.... and you can't do it yourself... therefore the Ombi needs to be able to initiate proceedings [the Ombi can't.. schedule 5 of the Local Government Act 1974). There has to be an ability (mechanism) to initiate criminal proceedings against a Council - particularly when a sick (mal) administration admit to having committed the crime on the advice of officers (executive).... and elected representatives can only be barred from office if they have a criminal conviction (Local Government Public Involvement in Health Act, 2007)...

So there you have it... a Council can admit to having committed a criminal act...(authorise demolition of a listed building), can decide not to prosecute itself, and the Ombi can't initiate proceedings against a Council, and neither can the police (as they are dependent on Council Tax for their funding)... and there is no remedy available under UK law.. or ability to initiate proceedings (article 13 of the ECHR)....

There are a large number of examples of Council's deciding not to prosecute breaches of the Criminal Law - that then impact on neighbouring properties (land).. where they do decide to prosecute.. and the grief that this causes appears to be massive.

The Ombi quite often identifies that there is maladministration by Council's particularly in relation to listed buildings.. (this is all covered by criminal legislation). However, that is as far as it goes... there is normally a local settlement. The Ombi is unable to initiate proceedings against a Council for its breeches of the Criminal Law (that is the preserve of a Council Solicitor... who owes a duty to their employer and the Courts). A Council is able to ignore any local settlement.. as the Ombi is unable to prosecute the acts of crime of the Council.

There seems to be an urgent need for the Ombi to be able to prosecute acts of crime (breaches of criminal law) by a Council... (that a Council is responsible for prosecuting).. to enable them to bring a meaning to mal (sick) administration... The non planning issues have little effect on deeds and land ownership (and are mainly contractual) - and as contractual issues a civil remedy should normally be securable.

SHC

[vmayflower]

Today marks a watershed for me amongst many others with the Publication of the Equitable Life report by the Parliamentary Ombudsman,Ann Abraham.
My interest ten years ago arose out of my having concealed from me, between 1994 and 1998 and from all policyholders INFORMATION that affected those with certain kinds of guarantees.The Equitable’s approach eventually was found unlawful: it precipitated the events which today have led to the revelations in her Report.

When I started this thread in January 08, I was prompted by the SAME ISSUE of concealment of information to which I feel I was entitled to receive:-“ Has my local authority committed maladministration from which a complainant has sustained injustice?"
I argued that Local Settlements avoid statutory reports and that was contrary to the Right to receive and impart information.
I sought permission for judicial review of the Secretary of State’s introduction of ss 171 and 175 of the 2007 “Local Government and Public Involvement in Health Act”. What I sought was a declaration that these sections which ,as we now realise,give Statutory recognition to the Local Settlement arrangement, were incompatible with Article 10, Human Rights Act 1998.
Those of you who argued that Article 10 was not relevant have been supported by the court which, in refusing permission, accepted the argument of the Treasury Solicitor , acting for Hazel Blears, that this Article applies only to INFORMATION which others wish to give (This relates to Press Freedom). And therefore by implication, does not apply to public authorities (the LGOs and Local Authorities ) who “act in a way”-s 6 of HRA 1998- that obstructs my right to receive information and who certainly do NOT wish me to have such information, as in a public Report.

It is unlikely that the matter will be pursued by me in England. However before the 2007 Bill was introduced to the Commons I had already begun an action relating to Local settlements through the European Court of Human Rights based on previous proceedings in England . Even if Admissible it could take years before there is a judgment which includes a judicial view of what information Article 10 entitles us to.

The 2007 Act virtually destroys the intent of the 1974 Local Government Act, introduced in November 1973, at Second Reading in the House of Commons by Geoffrey Rippon, the then Minister for the Environment (i.e. Hazel Blears predecessor) with these words:-

“Provision of the (ombudsman) system represents a general appreciation of the need to strengthen local democracy…..”
And later:-
“Another important element in the system is the emphasis it gives to local publicity in rectifying any maladministration by local authorities. Thus reports on particular cases by local commissioners will be made available for public inspection and will no doubt be fully reported in the Press. THAT IS THE EFFECTIVE SANCTION”.

Without that “effective sanction”, public Reports, unaccountability flourishes in matters concerning LGOs and Local Authorities.

Finally, perhaps the PO Miss Abraham, herself a member of the Commission for Local Administration in England, now has time to look into the question of how Part 9 of the 2007 Bill got through the parliamentary process without the slightest input of public opinion or awareness.
The first the public is supposed to have been made aware of what was being proposed, was on the Parliamentary web site at 7. 30 am on the very day that this section of the Bill was introduced and passed at 6 pm over a space of 4 minutes.
And this is not just a matter of LOCAL democracy.
VM

[vmayflower]

Whether Article 10 of the Human Rights Act does or does not apply to the concealment by LGOs of maladministration causing injustice, there is little doubt that the sneaking in of most of Part 9 of the 2007 LGPIH Act , was behaviour which,( intended, as I believe, or not), avoided any public say, via our MPs, of the now statutory recognition given to the Ombies to discontinue investigations without issuing a Statutory Report (the vast majority of Local Settlements). In proceedings, there was much quotation of the Bill of Rights 1689 to the effect that the English courts cannot consider proceedings in Parliament. The content of debates cannot be quoted, even though Hansard showed there to be none.

I take the view that the complete absence of advance public awareness of this part of the Bill is a subject for consideration by the Parliamentary Ombudsman, Miss Abraham, notwithstanding her membership of the Commission for Local Administration in England (all the LGOs). She has been approached via my MP and her staff closed the file immediately, on the grounds that I had not first approached the Secretary of State for Communities and Local Government, the DCLG, for an explanation.

So I did, pointing out that Parliament itself had emphasised, as indeed have the courts, that in a democracy, MPs must have feedback from constituents (Article 10 -Freedom of Expression, the Right to receive and impart information, to hold opinions), before legislation is debated . Furthermore it is to be expected, from their own guidance (the Cabinet office document: “The Judge over Your Shoulder”) that Parliamentary Counsel in drafting legislation has an obligation to take into account the public view and the likely effects of such legislation. I asked Hazel Blears for comment on these issues so that I can pass them on to the Parliamentary Ombudsman (the PHSO Ms Abraham).That was two months ago and there has been no reply. Via My MP I have asked again and if this fails I will request that a question be put in the House, when Parliament re-assembles. Others might consider doing this, particularly anyone with an opposition MP.

Apart from Miss Abraham being part of the CLAE, some viewers may not be aware that Redmond the Chairman of the CLAE , is a member of the Non Executive Committee, Advisory Board, of the Parliamentary Ombudsman. The sound of Mutual responses to Pruritus Dorsi must reverberate through Millbank Tower.

I take issue with any suggestion that the FOI Act allows the public to find out all that would be revealed in a formal Statutory Public Report on maladministration causing injustice.
As I pointed out in my last post, Parliament’s objective in 1974 in creating the LGO system plus Reports was that Local Democracy should be furthered. It was clearly anticipated that a local population will receive information via Press notice of the existence of Reports and Press comment ( through subsections 4 and 5 of s 30 of the 1974 Act which are still unaltered by the 2007 Act.).Where such Reports reveal maladministration causing injustice, this would influence the way the public votes at the ballot box, and not only in local elections.

The Annual Report of the CLAE, available only at the beginning of April, is useless from the electoral standpoint. It may enumerate Local Settlements but to find out via the FOIAct whether these were maladministration causing injustice, when May elections are impending, is clearly impossible in face of the massive and increasing workload the FOIA is experiencing, according to other posts on this Forum. (In any case what about the fifteen plus years of Local Settlements, without Reports, before commencement of the FOIAct in 2005)
vm

[shc]

One thing appears to be becoming apparent from FoI requests and Council Web Sites..

Quite a large number of Councils appear to have forgotten to have appointed either an Electoral Registration Officer ['ERO'] and/or a Returning Officer ['RO']. This appears to be on the advice of Council solicitors. This appears to be in breach of Article 3.

There are two components to a complaint to a Council - one relates to administration and the other relates to a decision on the merits. The LGO looks a decisions based on poor administration. The second relates to the merits of a decision. If there is no linkage between the administrative and political function a Council Solicitor can give whatever advice they choose - and flawed decisions can be made by Cllrs on the merits. The LGO has previously identified that a failure to appoint either an electoral registration officer and/or a returning officer is not maladministration causing injustice (even if a Council only admits to the failure to appoint either an ERO or a RO a year and a day after appointment to a position of elected representative). However, it is likely that all payments to people elected without either an ERO or an RO would be illegal.

There then flow various breaches of Human Rights legislation by Council's (and enablement of breaches) as a consequence. Freedom of Expression (Article 10) is one.. another is Article 6 (right to a fair trial)... not based on flawed legal advice provided by a Council Solicitor who owes no duty of care to the elected representatives to provide correct and competent legal advice... [or to their constituents] as a consequence of the Cllrs failure to appoint either an ERO or an RO.

I have a feeling that this issue might be the cause of a lot of problems.. It is known that quite a number of MP's have been elected to Parliament by Council's that have failed to appoint either an RO or/an ERO...[this includes Trafford] and as members of their local associations (that can deselect them) tend to control Council's this raises an interesting dilemma... in relation to free and fair elections and administration of complaints systems.

[vmayflower]

It was my intention not to post on this subject until I had had an answer to my query to dear Hazel as to why there was no public consultation on the parts ( or if there was where was it?) of the 2007 Local Government and Public Involvement in Health Bill, which gave statutory recognition to, inter alia, Local Settlements. There has been no reply so far after three months so I am, now trying a FOI Act request.

However, those of us who recall the underhand way this legislation was introduced may see the relevance of a report due out today on the changes in abortion legislation.
It is said to conclude:-
“It is not acceptable for matters of such moral and social importance to be decided BY AMENDMENTS TAGGED ON TO A GOVERNMENT BILL WITHOUT ADEQUATE OPPORTUNITY FOR REFLECTION AND PUBLIC ENGAGEMENT” (My capitals)
Public engagement means, to me at least, trhe "right to receive and impart information "Article 10 HRA 1998
vm

[vmayflower]

I have now seen a reply by one of the Ministers from the Department of Communities and Local Government to a letter which asks for an explanation as to why there was no public consultation about Part 9 of the “Local Government and Public Involvement in Health Act 2007. In particular ss171 and 175 which sanctified Local Settlements-my bête noire.

This reply appears to me, at.least, to satisfy the insistence by the Parliamentary Ombudsman that before such a question can be investigated by her, the Department must give its answer.

The first point is that receipt of the letter by ‘Signature on delivery’, five months ago, is denied. “My officials … have no record…… etc.” So why is there a signed Royal Mail receipt of the letter 2 days after it was sent.? Dear dear..

There then follows an explanation of the “Background “to the part of the 2007 Act about the LGOs. It seems that we should have known what was coming because in the 200[b]3[/b] Triennial Report, we were all told that Counsel had opined that “express statutory recognition” be sought for Local Settlements without Statutory Reports.

The Ministers letter then goes on to explain that this was down to be dealt with at the “next legislative opportunity” which was the 200[b]7[/b] Act. We are supposed o be acquainted with this from the LGOs submission to the ODPM Committee (on “The Role and Effectiveness of the Local Government Ombudsmen for England” April2005),well known to those interested in this web site, and from the Government’s response.

This reply shows that the poor blighter has simply been tied in Knots by his officials.
So let us look at Raynsford’s (ie the Government’s)supplementary memorandum to the 2005 Committee. It says two things. First that the legislative change the LGOs sought in their ODPM evidence, was cooperative working between the LGOs and the Parliamentary Ombudsman, nothing to do with Local Settlements. Cooperative working came about in the Regulatory Reform Order 2007 AFTER a wide Consultation, which was the other matter Raynsford promised.(Ev 35 of the ODPM Report).

But that itself was of interest because of the public’s response to the Consultation showing serious hostility to Local Settlements. So when the next “Legislative opportunity” arose, the 2007 Bill, it became essential for the LGOs to have it slipped in, so that there would be no opportunity for the public to express a view before it got through the Commons.

In any event for the Minister seriously to believe that the ODPM Report could give any support to legitimising Local Settlements is astonishing in view of the evidence of how the LGOs use them to hide local authority maladministration from the public, This evidence was provided to the ODPM Committee by several notable contributors to this forum.

The next piece of dissimulation in the Minister’s recent letter, is the claim that THE provisions of Part 9 were published in the White paper “Strong and Prosperous Communities” –October 2006. Well Minister look at them..

The provisions are on p. 37 and are precisely 4 in number, all unexceptionable and nothing to do with “Decision by Letter and Local Settlements”-the part of the 2003 Triennial Report referred to above.

So we were not told anything relevant to Local Settlements in the White Paper nor of course was there anything in the Explanatory Notes to the Bill which quoted the White Paper as the Bill’s source.

In the Minister’s final paragraph he attempts to deal with the timing of the Parliamentary process, which clearly made public consultation impossible.
He says :-“The time available to debate amendments and clauses of the Bill will already have been agreed by THE HOUSE BY WAY OF THE PROGRAMME MOTION FOR THE BILL”

It has been pointed out before on this forum, that the first the public knew about the Local Settlement sections of the Bill was at 7 30 am on the Parliamentary Web site on 17 May 2007, those sections being nodded through at 6.00pm over a space of under 4 minutes, on that same day.

What the Minster is being kept in ignorance of, is that the Programme Motion for the Bill originally agreed some months previously was altered by Amendment (to include the Local Settlement sections) at about 1 pm on that day, 17 May 2007 when, as SHC pointed out some months ago, many MPs had gone out to lunch.(I believe the Government tried and failed to have the Hansard record of the 17 May proceedingsremoved from the Parliamentary web site.)

Well Minister, were concerned members of public supposed to consult the
Parliamentary web site every day since the 2003 Triennial Report in case
“express statutory recognition” of Local Settlements was going to arise in the day’s proceedings?

Freedom of Expression to our MPs about Local Settlements-Article 10
of Human Rights Act 1998- was to be, and, from the LGOs' standpoint, had to be avoided.

The matter must be pursued by the Parliamentary Ombudsman.

VM

[shc]

We are sort of on a similar tack..

http://www.whatdotheyknow.com/request/2 ... al_reviews

The proposal wrt the Local settlements should have been included in the 2006 Triannual report.. but they didn't produce one.. para 4.1 in the 003 report

The issues are currently back with DCLG

http://www.whatdotheyknow.com/request/triannual_review


out of interest Tandooh no longer seems to be responsible for the LGO in DCLG land.. they now have a 'smart' main grade.. so think that the issues are regarded as being sufficiently serious.

The reason that local settlements are important is that if an LGO discontinues their investigation the Council don't have to produce a monitoring officer report (if they so choose).. so a complainant is not left with a challengeable decision... [i.e. no LGO decision to challenge.. and more importantly no Council decision to challenge.. as the Council's don't bother to produce a monitoring officer report normally.. this appears to have been missed by many..] have Cheshire County Council produced a monitoring officer report yet .. they had three months.. ?

[vmayflower]

This is a seasonal bonne bouche to our friends in the Commission for Local Administration in England,, the CLAE,and to all our readers,

Those of you who have looked at this topic will have gathered that it has two points of Focus.
One is my continuing contention that Local Settlements without Reports are meant to keep Information about Local Council’s maladministration from the public eye and that this is to “act in a way” that is contrary to Article 10 of the Human Rights Act. I believe this to be so but this post is concerned with the second of my interests which is about how the Commission managed to get Statutory status for Local Settlements through Parliament without any one knowing until it was far to late to lodge objections. If we did not know about forthcoming legislation then that ignorance has further interfered with our Freedom of Expression, -Article 10 again- to our i.e everyone’s MPs etc.

Some of what there is to say has been covered in previous posts but it is important to repeat it to put some new information in context..

The 2003 Statutory Triennial review, by the CLAE, a public document has a section on “DECISION BY LETTER AND LOCAL SETTLEMENTS”. The legal argument was that if the LGO was party to a local settlement he would discontinue his investigation and no Statutory Report, available to the public would be necessary. Counsel’s advice, previously sought by the CLAE, suggested that this procedure should be given Statutory recognition and there was a half hearted Government promise that this would be considered “when Parliamentary time became available”
The focus now settled on the ODPM Committee of March 2005, which considered “The Role and Effectiveness of the Local Government Ombudsmen for England” and the publication of the report of the proceedings in April 2005. where the burden of the LGO seeking legislative change, was on the cooperation between the LGOs and the Parliamentary Ombudsman. Any further legislative modifications (i.e. the statutory Status of Local Settlements), -it was said in the Government response-, would have to wait until “a suitable legislative opportunity arose”, “after consulting more widely”.
The next PUBLIC event in this saga was the Regulatory Reform Order with its public consultation in October 2005 where the public made it abundantly clear that they thought Local Settlements were a Swiz used to foreshorten a proper investigation of complaints. In other words the Government were well aware that there was hostility to them.
All the above is widely known. But what is perhaps not so well known-although the information is publicly available- is the agenda and Minutes of a Meeting of the Commission for Local Administration in England (CLAE)- all the Local Government Ombudsmen plus the Parliamentary Ombudsman on 12 July 2005.

“The Commission then considered the schedule of items FOR POSSIBLE INCLUSION IN THE 2005/06 TRIENNIAL REVIEW CONSULTATION PAPER, and AGREED to make the following decisions and the comments on them:
Paras 4.1-4.2: Decisions by letter and local settlements-section 30(1) requires a report were the LGO conducts an investigation. Amend to give express recognition to practice of discontinuing investigations by letter under section 26 (10)”).(This legitimises local settlements,(see below,vm)
And later
“Para 13: amend section 29(6) to remove the requirement for the LGO to seek the Treasury’s consent before expenditure is incurred on external advice to assist them in any investigation.”
The Commission agreed to include this provision.”
(The Parliamentary Ombudsman, ex officio a member of the Commission had left the meeting by the time these items came up).
However, while the public MIGHT have been aware of the interest of these amongst many other items, please note again that these items were intended for the statutory Triennial Review i.e. 3 years after the 2003 one, referred to above.
The Clandestine trail continues however because THERE WAS NO TRIENNIAL REVIEW in 2006.It was apparently agreed either by the ODPM or the Cabinet Office that the ODPM Report of 2005 was good enough to satisfy the Statutory Requirement for such a Review , as required by the 1974 Local Government Act. which created the CLAE.

To pause for a moment, there was therefore at that point, no public awareness possible of the forthcoming change to legitimise local settlements.
Fast Forward to the 2007 “ Local Government and Public Involvement in Health Bill”
Here is an extract from the EXPLANATORY NOTES to the 2007 Bill:-
“5. The Local Government White Paper ‘Strong and Prosperous Communities’,
published on 26th October 2006, was a response to the local vision consultation.THIS
BILL FOLLOWS FROM THAT WHITE PAPER.” .I quote it:-

“[color=olive]The Local Government Ombudsman[/color]
2.35 The Local Government Ombudsman provides citizens with the opportunity to
seek redress when they have been the victim of maladministration by local
authorities. We propose to modernise and clarify the role and working practices
of the Ombudsman, to ensure they can operate effectively and continue to be accessible to all, by:
_ clarifying that where authorities exercise their functions through joint
arrangements and local partnerships, actions taken via such arrangements
may be the subject of an investigation by the Ombudsman;
_ allowing the Ombudsman to pursue an investigation where he or she finds
there are flaws in an authority’s administration, even where no injustice to an
individual
_ providing for complaints to be made in ways other than in traditionally
written form, for example by phone or e-mail; and
_ enhancing the ability of the Local Government Ombudsman and the
Parliamentary and Health Ombudsmen to work together more closely.”

Now Back to 2005. In November the CLAE made requests for Legislative Change in a submission to be considered for inclusion in THAT White Paper.This submission contains the following:-

“3. Jurisdictional Issues
• Amend Section 30(1) to give express statutory recognition to the practice of discontinuing investigations by letter including local settlements.
• Amend Section 29(6) to remove requirement for Commissioner to seek Treasury consent before expenditure is incurred on external advice to assist them in any investigation.”
(SHC has already commented on that last change in another Forum Topic)
The point I am making is that neither of these Jurisdictional issues were to be found in the White Paper, again keeping the public in the dark about the intention to legitimise local settlements.
These Issues were.snuck into the 2007 Bill by Amendment in the Report Stage, in 12 hours on 17 May that year without public awareness or debate, over a Parliamentary period lasting four minutes.
( The House of Lords Constitutional Committee had, in 2004, emphasised the importance of public information when legislation amending existing Statute was contemplated.)
The absence of a Triennial review, the omission from the White paper of “Jurisdictional issues”, the Explanatory Notes, misleading because of that omission, the way those “Jurisdictional issues” were undemocratically allowed to become law, are factors which the Parliamentary Ombudsman will again be asked to consider, this despite her partial responsibility, as a member of the Commission for this disgraceful series of events.
VM

[shc]

1 - There was it appears no agreement by DCLG or Cabinet Office that there should not be a 2006 triannual review. This decision was taken by the CLAE Chair.. and the CLAE staff..

The ODPM Select Committee of 2005 did not meet the requirements. They recommended that:

The Commission for Local Administration in England is required to submit a review of its legislation, together with proposals on this, to the ODPM every three years. This is done in consultation with interested bodies. The Commission told us that the most recent review, which contained several recommendations to Government, was submitted in May 2003 and had not yet received a response from ODPM. ODPM informed us that although no response had been published, proposals made in the review had been the subject of discussions between the Commission and Department. The full departmental response is attached. While we welcome this action, there is a lack of transparency regarding the department’s reaction to the review. We recommend that ODPM publish a clear summary of what progress has been made in addressing the recommendations contained in the Commission for Local Administration in England’s 2003 Review.

The ODPM's Committee's recommendation COULD ONLY BE EFFECTED THROUGH THE 2006 TRIANNUAL REVIEW. There are additional issues.. However..

The CLAE have already claimed to be under the control of the Dept of Communities and Local Government.

I would anticipate an interesting new year..

[vmayflower]

Comment on two items from last week-end’s press

KPMG has sacked some staff. Good. They are the bloated management consultants who told the Ombies in 2001 that they need not bother much about Reports but should concentrate on Resolution of Complaints instead. This was taken as a Green light to use local settlements to hide local authority maladministration causing injustice,.from the Public, contradicting of the spirit and letter of the 1974 Local Government Act.

The second item is an Article giving notice of a forthcoming day conference on “The Convention on Modern Liberty” on 28 February 2009 .This contains a remarkable passage redolent of the way the Ombies finagled legality of local settlements into the 2007 Local Government and Public Involvement in Health Bill:-

“This (the forthcoming Convention) is no away day for MPs, because in some sense the convention is a challenge to parliament. For a brief moment, we will be airing the issues that haven’t been heard in the Commons this past decade, because Labour has all but anaesthetised the business of the chamber to push through its laws……….statutory instruments-in other words, in unscrutinised, undebated ministerial decrees-had doubled in the last twenty years, while the number of bills laid before parliament for scrutiny and debate has declined.

Interestingly, the scrutiny applied to these bills which often comes in the shape of a portmanteau of unrelated measures, has not intensified. With clever scheduling of Commons business and the use of the guillotine to cut short debate, also on the increase under Labour the vast number of pages in these new bills are not usually examined properly.

There is probably an algebraic formula to express this, but essentially Labour’s anti-democratic strategy is more decrees, fewer bills, more pages, less time.”

Relevance to Ombie Watchers? Is it really necessary to spell it out.?

The CLEVER SCHEDULING of Commons business operated here. Rescheduling left no time for SCRUTINY and DEBATE on the sections of the 2007 Bill which give Statutory Recognition to local settlements. These were buried in its VAST NUMBER OF PAGES (THE PORTMANTEAU OF UNRELATED MEASURES). Public opinion (Freedom of Expression) on this matter was excluded by announcing the relevant sections of the Bill and passing them on the same day without even prior notification to MPs.

VM

[vmayflower]

Amendments, Amendments and the four Lords in the news.

Apparently an outside body or organisation can seek to advantage itself by a system which allows Amendments to Parliamentary Bills to be introduced virtually through the back door.

This, it appears, can happen when the members of either House might themselves be ill-informed of the issues concerned.

It is not suggested that the Commission for Local Administration in England, the Ombies, paid sweeteners to have AMENDMENTS, in their favour -in my view interfering with Human Rights- introduced by AMENDMENT, into Part 9 of the 2007 Local Government and Public Involvement in Health Bill. These AMENDMENTS make AMENDMENTS to the legislation which created the Commission, the 1974 Act.

The Ombies got them for nothing.

VM

[vmayflower]

The Parliamentary Ombudsman has been asked to look into the matter of how the Parts of the 2007 LGPIH Bill concerning the Commission for Local Administration in England of which she is a member, became law with no public advanced notice.
This forum site topic "Ombudsman swallows own medicine",includes the unaccetability to her of the argument: "It wouldn't have made any difference".
I trust she will not drag up this argument to defend the Parliamentary procedures in the Bill's stages which produced the situation.
She is doubtless aware of the advice government legislators are given about the importance of public awareness in the document "JOYS"-'The Judge over your Shoulder', from, I believe ,the Treasury Solicitor with approval of the Cabinet Secretary.
At para 2.46 it makes clear that the argument:-"it would not have made any difference"is unacceptable.
Such reasoning applied to the PO's investigation, if any, of the case of the 2007 Legislation, referred to above, is clearly now,on her own admission unacceptable.
VM

[shc]

This takes us back to her personal failure as a member of the CLAE to ensure that DCLG responded as required to the Select Committtee (2005), and also the failure of the CLAE (2006) to conduct a triannual review where they identified the legislative changes required..

No triannual review (2006) and the LGPIHA must be ultra vires.. as there was no consultation.

The 2009 Tri Annual Review has to examine this failure.. and bring it to the attention of Parliament.. as enabled by the LGPIHA...

[shc]

Hi vmayflower

The Human Rights Act came into force in 2000.. The Government required Council's to adopt written constitutions..

http://www.amv3.com/forum/viewtopic.php?p=9168#9168

I think we might have found the cause of the problem.. the LGO are the defacto 'guardians' of Council constitutions.. is a breach of a written constitution - maladministration (countries with written constitutions most of Europe and America (Thomas Paine's legacy) would say yes..

From a search of the LGO's finding's..(MI reports) they have never identified a breach of a Council's constitution as being maladministration (the Counsel's advice)..

[vmayflower]

Reading SHC's last post in combination with the post concerning LGO Delegation, it would appear that the identification of Council Maladministration with Human Rights consquences, is now almost universally in the hands of investigators delegated, (if I read the FIA facts SHC has extracted ),to do the job instead of the LGOs themselves.

Take for instance my bete noire, the Discretion "to discontinue an investigation of a matter if HE is satisfied with the action the authority has taken or propose to take" -s 24A ss(7) shoved in to the LGIPH Act on May 17 2007, amending the 1974 Act

As the HE is likely to be some ex Council Official, the prospect of the public ever getting a Report s 30 (Only by the LGO himself- see the replies to SHC becomes , as we know ,remote

And the propect of some whipper snapper having the foggiest notion of Human Rights issues, if applicable is negligible.

Which brings me back to my Human Right to information about my Council, concealed by the Local Settlement arranged by Delegation.VM

[shc]

The LGO is only one of the relevant regulators..

The Planning Inspectorate is another.. as are Land Registry as are Valuation office Agency.. these are all 'independent'

The issues are complex.. However, relate to discretion.. None of them are willing to take into account that Council's break their constitutions..

s55 Land registration act 2002;

s191 Town and country Planning Act 1990.. s174.. there is no ground to appeal an planning enforcement notice on the ground that the Council has broken its constitution.. same for appeal against refusal of planning permission.

under Council Tax regulations there is a statutory assumption that Council's won't break their constitutions.

The LGO sits at the cente of this mess.. as since 2000 and the invention of written constitutions they are the only route of appeal.. But because they don't determine Human Rights (the 2003 triannual review.. and counsels decision leading to LGPIHA.. ) the issue has been dodged..

You are totally correct.. the CLAE determine your human rights.. wrt Council's.. and the LGO's appear to say or the CLAE do that breaching a constitution is not maladministraton..

The issue is how to correct the problems.. and the LGO's could be the vehicle.. NB the Committee on Standards consultation on local government and their focus on statutory officers..

[shadow]

the CLAE determine your human rights

The CLAE do not determine your human rights. They may ignore them but they certainly do not determine them. Only a court can do that.

The issue is how to correct the problems

We could stop making absurd assertions that give people the impression we don't know what we're talking about.

Thomas

[shc]

The CLAE do not determine your human rights. They may ignore them but they certainly do not determine them. Only a court can do that.

Wrong.. by not identifying that it is maladministration to break its constitution they don't give people access to the Courts.. a finding of m on those grounds is automatic identification that there has been abuse of human rights. The claim would I think be Queens Bench not JR..

The issue is how to correct the problems

How do you correct a problem.. when as far as I can determine the lawyers have not yet picked up that Council's now have written constitutions... and are now effectively governed by the Napoleonic Code.. (not Common Law).. It is a major change.. and I have a feeling illustrates how effective the LGO has been..

[shadow]

Wrong.. by not identifying that it is maladministration to break its constitution they don't give people access to the Courts.. a finding of m on those grounds is automatic identification that there has been abuse of human rights. The claim would I think be Queens Bench not JR..

Rubbish.

The LGO/CLAE cannot determine human rights issues. Neither can they block a person taking a human rights case to court! An individual does not need a finding of maladministration from the LGO/CLAE to take court action for a breach of their human rights. Although a human rights breach by a public authority is a de facto case of maladministration, until it's been determined in court it's not a human rights breach. Until that happens neither can it be considered as maladministration. Ironically, when it has been determined in court that a human rights breach has taken place and hence maladministration, there is no reason for LGO/CLAE involvement. Simple as that. Bottom line is that the LGO can't identify human rights violations as maladministration until proven in a court of law. Once proven in a court of law who the hell need the pathetic LGO?

Thomas

[shadow]

PS

and are now effectively governed by the Napoleonic Code.. (not Common Law)..

Common law applies to everyone including public authorities so trying to argue it doesn't is another ludicrous proposition.

Thomas

[shc]

So why do Council's have written constitutions ?

[shadow]

Because many now operate executive arrangements or something similar (thanks to Blair). Read your own posts.

(1)A local authority which are operating executive arrangements or alternative arrangements must prepare and keep up to date a document (referred to in this section as their constitution)

Thomas

[shc]

I'm aware of the written constitution side and Blair..

the issue with it is hadn't made the linkage back to the Complaint systems.. and have gone click, click, click.. the reform started in about September / October 2000.

.. only it hasn't made its way through the system.. as the regulators ie LGO (and their legislation) and others are still not taking account of the change..

this I think is because the regulators get to propose the changes they need to take account of the reform (i.e. triannual review) and the LGPIHA looms very large..

[vmayflower]

I’m lost.

Lets go back to basics. Here is the Crossman Catalogue, the nearest working definition of maladministration in the (continuing )absence of a statutory definition

... Bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.

And while we’re at it, let us remind ourselves that the Ombies duty is to investigate a complaint where some one claims to have sustained INJUSTICE on account of MALADMINISTRATION.

SHC appears to me to be saying that Local Authorities now have constitutions which must respect Human Rights. These are not part of maladministration, at least not in relation to the Crossman catalogue. However where a defective decision making process, maladministration, by a LA leads to an INJUSTICE which appears to be a breach of one or other human rights, that situation is different.
I interpret SHC to mean that where a Report states that the INJUSTICE due to maladministration has occurred and this appears to be, without asserting that it is, a breach of human rights, this should force a local authority of its own motion to remedy the apparent breach, under its constitutional status since 2000, OR face court action under the Human Rights Act.
The intended function of the Ombies as an alternative to court action would be preserved.
I know that the Ombies claim to have legal advivice tha they must avoid Human Rights issues but if SHC is right this must change.

Shadow too has strong views. The LGO may not determine human rights but at least he can comment on the administrative Crossmaniac cock up that led to an apparent breach . Then by his Report offer the Local Authority the alternative suggested above if SHC is correct about the status of Local Authority constitution in relation to the HRA
Shadow’s statement that a human rights breach is a de facto case of maladministration, is a little difficult for me to understand.A human rights breach is an injustice, I would have thought,in anyone’s book, but it is not an aberration of administration,although it may have resulted from it.

If SHC is correct then there is a place for the LGO, and for it to act as is suggested above.

VM