BOROUGH OF POOLE
REPORT TO SERVICE PROVISION SCRUTINY & AUDIT COMMITTEE
1 SEPTEMBER 2005
REPORT OF MONITORING OFFICER ON OMBUDSMAN CASES DETERMINED 2004/5
1 Purpose
Follow up to the report of the Monitoring Officer of 6 September 2004 concerning complaints received and determined by the Commissioner for Local Administration in England.
2 Background Information
2.1 The Commission for Local Administration in England (“the Ombudsman”) was established by the Local Government Act 1974 with powers to consider complaints that a local authority has been guilty of maladministration. The term maladministration is not defined in the legislation or elsewhere but is generally taken to include “bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness”. It is only essentially procedural issues which the Ombudsman can look at and the Ombudsman has no jurisdiction to consider whether any decision taken by or on behalf of the Council was right or wrong or good or bad in wider terms.
2.2 There are some things the Ombudsman cannot investigate even if the complaint relates to maladministration and not the merits of the decision. The principal exemptions are:
· Something the complainant knew about more than 12 months ago (although there is an element of discretion to take late complaints where it is reasonable to do so).
· A matter in relation to which the complainant has already exercised a right of appeal to a tribunal or government minister or has taken court action against the Council or could have taken these steps but failed to do so without good reason.
· Something which affects the majority of people in the area – e.g., the level of Council tax.
· Contracts for the supply of goods and services.
· Court proceedings.
· Personnel matters.
· The internal management of schools and colleges.
In addition the Ombudsman will refuse to investigate a complaint until such time as the local authority has had a reasonable opportunity of seeking to resolve the matter through its own internal complaints processes.
2.3 The vast majority of complaints received by the Local Government Ombudsman are dealt with through correspondence. If the matter falls within the Ombudsman’s jurisdiction and there is a question to be answered by the Council, the Ombudsman will write to me enclosing the complaint and highlighting areas upon which he requires the Council’s comments. Detailed comments will be collated and returned to the Ombudsman’s Investigator and in most cases this will suffice to demonstrate to the Investigator that the Council has not been guilty of maladministration. In some cases, however, the Investigator will visit the complainant and the Council and formally interview relevant witnesses before making a decision.
If the Investigator finds that the Council has been guilty of maladministration which has caused injustice to the complainant, a formal report is issued with a recommendation as to steps which the Council should take to redress the injustice by, e.g. making financial compensation to the complainant. I am required to publish in the media notice that an adverse report has been received, make that report available for the public to see, and to arrange for the report to be considered by the full Council in public session. The Council will almost invariably accept the recommendation of the Ombudsman’s Inspector as to steps to be taken. The recommendations are hot however mandatory and if the Council chooses not to follow the recommendations the only redress by the Ombudsman is to issue a further report criticising the Council for not following the recommendations and such second report also needs to be advertised in the press and reported to full Council.
3 Numbers of Complaints
3.1 Complaints Received
In 2004/5 the Ombudsman received 32 complaints against the Council, 9 fewer than last year. This level of complains is considered relatively low by the Ombudsman.
3.2 Complaints Determined
In 2004/5 the Ombudsman determined 25 complaints, not counting complaints received which were premature on the basis that the Council had not had an opportunity of investigating them internally. There were no findings of maladministration causing injustice, compared to one last year.
3.3 The number of matters determined since 1 April 2004 (excluding those considered to be premature) has remained similar to last year. Of the 25 that have been determined since that date and of those the Ombudsman determined that 4 were outside of his jurisdiction on the grounds that they related to matters which had been or could have been dealt through appeal or court processes.
3.4 The ombudsman determined 6 cases should be discontinued using his discretion – a variety of reasons can be given for this decision. Often it has been decided that there is no or insufficient injustice to warrant continuing the investigation.
3.5 Short details of the remaining cases are shown on the appendix to this report for information and discussion as appropriate. By virtue of Section 32 of the Local Government Act 1974 it is not possible to disclose details of the complainant’s names or addresses or any further information obtained by the Ombudsman in the course of his enquiries.
3.6 Members will note that no formal findings of maladministration causing injustice have been made against the Council but that in five instances the Council acknowledged that the matter could have been dealt with better. Details of the five local settlement cases can be seen in the Appendix.
4 Liaison with LGO
4.1 Due to the retirement of the past Head of Legal Services a new Link Officer has been appointed and is booked on the next Link Officers seminar to be held on 1 & 2 November 2005.
4.2 Responses to the LGO are generally to be completed within 21 days. The Councils average response time is just over 40 days which must be improved upon. The Policy Directorate has just begun a review of the corporate complaints procedure. Delays in dealing with complaints at service unit level will be investigated as part of the review. It is hoped that through addressing the reasons for the delays this will lead to an improved response rate to the LGO.
T M Martin, LL.B Solicitor
Head of Legal & Democratic Services
August 2005
Report-Ombudsman Cases 2004-5
1
APPENDIX
COMPLAINTS RECEIVED AND DECISIONS MADE :1.4.04 - 31.3.05
REFERENCE
/ SUBJECT MATTER / FINDING03/B/01395
/ Housing & Community Services – failure to properly handle an application for housing after being placed in temporary accommodation following B&B / Local settlement – alternative accommodation offered and accepted.03/B/12867 / Planning – misplacement of letter of objection to a planning application and failed to consider the loss of amenity / Local settlement - payment in recognition of the maladministration and the time and trouble in pursuing the complaint
04/B/14692 / Revenue & Benefits: Failure to notify of Fixed Penalty Notice, failure to allow appeal to Parking Adjudicator. / Ombudsman’s discretion - cannot investigate as court dealt with this matter
03/B16021 / Transportation/Legal: Complaint regarding decision on applications for the inclusion of 4 slipways on the public Rights of Way map. / Outside jurisdiction - the complaint was made more than twelve months after the subject matter of the complaint arising.
04/B/18367 / Poole Housing Partnership Ltd: Delay in addressing neighbour’s alleged anti social behaviour. / Still outstanding as at 31.3.05
04/B/03018 / Planning: Development of flats on adjoining site - allegations of bias (as the Council sold the land to the developer), of failure to take account properly of objections and of failure to enforce against the commencement of work in advance of planning permission being granted. / No maladministration
04/B/03210 / Planning: Failure to take enforcement action concerning an extension. / Premature - referred back to be dealt with under internal complaints procedure.
04/B/14209 / Poole Housing Partnership Ltd: Failure to deal with anti-social behaviour and breach of confidentiality. / Premature complaint
04/B/04893 / Transportation: Broken pavement leading to fall causing injury. / Outside jurisdiction - the complainant could bring civil action in the County Court.
04/B/06000 / Adult Social Services (Commissioning): Complaint concerning administrative errors regarding the payment of fees for elderly relative in residential care home. / Outside jurisdiction - the subject matter arose more than twelve months from the complaint being made.
03/B/19307 / Planning: Delay in investigating breaching Planning Permission. Failure to take enforcement action, inadequate committee consideration of proposed works. / No maladministration
03/B/19026 / Poole Housing Partnership Ltd – failure and delays resulting from complaint about anti social behaviour / No maladministration
03/B/19309 / Planning: Delay in investigating breaching Planning Permission. Failure to take enforcement action, inadequate committee consideration of proposed works / No maladministration
REFERENCE
/ SUBJECT MATTER / FINDING03/B/19310 / Planning: Delay in investigating breaching Planning Permission. Failure to take enforcement action, inadequate committee consideration of proposed works. / No maladministration
04/B/11817 / Poole Housing Partnership Ltd – unreasonable decision issuing Notice of Seeking Possession and victimisation / Still outstanding as at 31.3.05
03/B/19313 / Planning: Delay in investigating breaching Planning Permission. Failure to take enforcement action, inadequate committee consideration of proposed works. / No maladministration
04/B/14055 / Planning Design & Control: Designation of conservation area. Insufficient time and justification. / Ombudsman’s discretion – no finding of injustice caused to the complainant.
03/B/19314 / Planning: Delay in investigating breaching Planning Permission. Failure to take enforcement action, inadequate committee consideration of proposed works. / No maladministration
04/B/08057 / Poole Housing Partnership Ltd: Tenant unable to succeed to tenancy. / Premature complaint
94/B/07901 / Planning: Staff unfairly brought into question standard of complainant’s tree work / Local settlement - the Ombudsman found that the Council had contributed to a deterioration in the working relationship with the complainant.
04/B/05799 / Council Tax: Issue of Summons for unpaid Council Tax whilst Council Tax Benefit claim still outstanding. / No maladministration
04/B/16294 / Planning Design & Control: Loss of light and privacy relating to construction of garage. / Premature complaint
04/B/02225 / Planning: Failure to take enforcement action re unauthorised business use at former Council house. / No maladministration
04/B/12637 / Planning: Inaccuracies in a planning report; Planning Committee not following its own policies. / No maladministration
04/B/08830 / Adult Social Services (C): Failure to provide a satisfactory management of care package; failure to account for charges; failure to investigate and respond to complaints. / Ombudsman’s discretion - remedies sought already provided by Stage III complaint
04/B/09706 / Planning: Failure to give adequate consideration to neighbour’s loss of light; delay in dealing with complaints; failure to take enforcement action. / Still outstanding as at 31.3.05
04/B/13241 / Planning Design & Control: Wrongly included the complainants property in conservation area on the Revised Local Plan / Still outstanding as at 31.3.05
04/B/13244 / Planning Design & Control: Wrongly included the complainants property in conservation area on the Revised Local Plan / Still outstanding as at 31.3.05
REFERENCE
/ SUBJECT MATTER / FINDING04/B/10948 / Leisure/Environmental & Consumer Protection Services: Deposit of building materials on the beach between Shore Road and Flaghead Chine. / Ombudsman’s discretion - no significant injustice to complainant personally.
04/B/11347 / Planning: Enforcement issues delay; Committee member not impartial / Ombudsman’s discretion - delay found but prompt action would not have lead to a different outcome.
04/B/12898 / Planning: Publication of letter of objection and personal details on the internet. / Outside jurisdiction
04/B/13449 / Children & Families: inadequate consideration of complaints & unreasonably refusing reinstatement as registered foster carers after upholding of complaint / Still outstanding as at 31.3.05
04/B/12973 / Planning: Publication of letter of objection and personal details on the internet. / Premature complaint
04/B/11904 / Poole Housing Partnership Ltd: Unfair accusation of racism and intimidation of complainant. / Premature complaint
04/B/13253 / Poole Housing Partnership Ltd: Failure to take action against tenant for breach of tenancy conditions. / Premature complaint
04/B/09411 / Highways: Refusal to refund costs re successfully disputing a parking charge notice / Ombudsman’s discretion - refund of costs insufficient evidence of injustice once parking fee refunded.
04/B/11283 / Housing & Community Services: Incorrect advice regarding terminating tenancy. / Premature complaint
04/B/11510 / Environment & Consumer Protection Services: Unfair dealings with clam fishermen; incorrect interpretation of the law. / Premature complaint
04/B/11728 / Children & Families Services: Failure to include father in assessment process; failure to keep him informed as to progress. / Local settlement - the Ombudsman found there had been delays in the core assessment and failure to keep the complainant informed.
04/B/12449 / Planning: Development in breach of democratic process and in breach of planning consent. / Premature complaint
04/B/12602 / Planning: Publication of letter of objection and personal details on the internet. / Premature complaint
03/B/19306 / Transportation: Taxi licence application. Wrong form completed led to delays by Criminal Records Bureau and loss of earnings. / Local settlement - the Ombudsman found delays in processing by the Borough contributed to the application (2 weeks out of 9 accepted by the Borough, 7 weeks accepted by the CRB).
SM/PL
1
21 June 2005
9
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Mr J McBride
Chief Executive
Poole Borough Council
DX: 123820
POOLE 7
Our ref: JRW/NM
(Please quote our reference when contacting us)
If telephoning contact: Mrs S Vaile on 024 7682 0033
email:
Dear Mr McBride
Annual Letter 2004/05
I wrote to you in January 2005 to explain our proposals for annual letters for 2005 and to invite your comments on the format of statistics and plans to make the letters more widely available in the future. We are grateful to all those councils, including yours, who replied.
As a result of the comments received, we have decided not to include the proposed simplified heading of ‘complaints upheld in full or part’ above the figures for reports finding maladministration and local settlements. We agree with those who say this would misrepresent those cases where a local settlement is offered by a council before I, or one of my colleagues, have decided whether to uphold a complaint; and that it could undermine this practice, which would not be to the benefit of complainants.