What to do when things go wrong Part 1: LGO

It is by doubting that we come to investigate, and by investigating that we recognize the truth.  - Peter Abelard

Local Government Ombudsman

The LGO is a statutory oversight body. Its mandate arises from the Local Government Act 1974 which enables the LGO to provide redress to a complainant who has suffered injustice as a consequence of maladministration by a local authority. Parliament intended the LGO to provide a thorough, impartial investigation of complaints of maladministration against bodies under its jurisdiction. The LGO’s own guidance confirms that it should undertake its duties by pursuing direct primary evidence wherever possible (because this is clearly more objective) in preference to secondary personal opinions (see the Ombudsman’s Strategic Objectives)The LGO’s Strategic Objective 2 confirms that all “decisions [must be] well-founded and evidence-based and supported by a rigorous internal review procedure”.  

Maladministration is not defined in legislation but it has been interpreted broadly and is understood to encompass a broad range of administrative failure, including “bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude [and] arbitrariness” R v Commissioner for Local Administration ex parte Bradford City Council [1979] 1 QB 287The LGO website sets out specific examples of administrative actions or omissions which may constitute maladministration including:
  • delay
  • incorrect action or failure to take any action
  • failure to follow procedures or the law
  • failure to provide information
  • inadequate record-keeping
  • failure to investigate
  • failure to reply
  • misleading or inaccurate statements
  • inadequate liaison
  • inadequate consultation
  • broken promises
The LGO should seek to uphold and promote compliance with the law as a matter of good administrative practice.  Consequently, although acts of maladministration will not necessarily be unlawful, unlawful actions by public bodies are highly likely to involve maladministration.

Similarly, injustice is not defined in law. Section 26(1) of the 1974 Act simply confirms that :

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 this Act applies,   being action taken in the exercise of administrative functions of that authority, a Local Commissioner may investigate that complaint.

Injustice has, in practice, been construed flexibly to include pure economic loss, distress, lost opportunity, loss of amenity and even the time and trouble spent in pursuing a complaint.   Injustice is, therefore, much broader than the idea of 'damages' or loss in a civil case and it requires no legal causation - the LGO cannot tell you that you have to prove maladministration has caused 'damage' in the legal sense. It is sufficient that it causes injustice which arises from the fault of the local authority. There is no requirement in law that injustice has to be of any specific level or quantity despite the fact that the LGO claims on its website that you must have suffered "significant personal injustice" for it to consider your case. The LGO gives some examples of injustice on its website:

  • hurt feelings, distress, worry, or inconvenience
  • loss of right or amenity
  • not receiving a servoce
  • financial loss or unnecessary expense
  • time and trouble in pursuing a justified complaint.  

    Parents may turn to the LGO when things go wrong during the SEN process, particularly when their child's statementing provision has not been put in place. The LGO guidance for dealing with these cases is found hereHowever, despite the very clear law on the absolute duty to arrange provision from the date the statement is issued, sadly, my own experience, and that of other parents I have spoken to, is that the LGO’s decision-making in SEN matters consistently excuses local authority delay and prevarication. This does nothing to promote compliance with the law or to protect children’s legal rights. 

    For example, the LGO and its lawyers state in writing that they believe it is perfectly ok for children with SEN to be without provision for several months - not because the LA doesn't have access to a particular therapist, or because someone was ill, or because they had any other pressing excuse but just as a matter of routine practice with no particular explanation needed for the delay.

    Also, despite the fact that the SEN COP states at para 8.109 that LAs must ‘arrange the special educational provision...from the date on which the statement is made’, the LGO says this doesn't really mean what it says so,although the duty is absolute, delay is acceptable. The consequence of this approach is that the child's entitlements (and the effect of being deprived of them) are entirely overlooked as the LGO focuses on excusing delay. It is, sadly, very common for the child and his/her disabilities to be given very scant regard in judgments, despite the obviously clear legal duties on local authorities (of which they are fully aware) and the human rights implications for the failure to support children with disabilities. 

    This means that parents can feel that the LGO just doesn't listen and that the conduct of an LGO investigation is considerably biased towards LAs, e.g. they may quote only evidence produced by the LA, they won't pursue independent evidence or your evidence, they may misquote evidence (astonishingly, in my son's case, half a sentence was taken from my MP's letter of support, out of context, to be used against me!). The rest of his two page letter was ignored. My MP's complaint about the misuse of his letter received a response only after three months and significant prompting. In my case, the Council failed to put my son's provision in place and then determined me a vexatious correspondent without warning three weeks before a SEN Tribunal confirming I could not communicate without anyone bar a complaints officer who would not respond to any further correspondence unless it raised a substantially new issue. This was devastating to my Tribunal preparation and to my ability to ensure my son's needs were met. And, I believe, this was intentionally so.

    Yet, the LGO believe this type of conduct is acceptable. They say Councils can put in place whatever policies they want and as long as they follow them, that is fine. However, in my case, the Council's policy said it was to be used as a last resort: it was not. It was imposed out of the blue and, I believe, at a deliberately difficult time just before Tribunal.

    Lawyers have acted pro bono to support me. A leading charity expressed its concern in writing. My MP wrote to support me. The LGO ignored all of them. It knows better when it comes to defending LAs. The only reference made to any of this evidence was when they referred to half a sentence from MP's letter to argue against me. Fair? Really?

    My MP complained about this misuse. They ignored him. Finally, they have now acknowledged his concern but are regurgitating the same line: the Council were getting lots of contact from the parent and have to look after their staff. The fact that the Council were in breach of my son's statement and were not responding to my complaints or putting the provision in place for my son who was out of school has never even been commented on by the LGO who say all they are interested in is whether the LA followed their policy. But they didn't!

    How is it they can refuse to investigate something but then just try and list lots of things they think support the Council and ignore all the evidence on my side. This was from the same investigator who accused me in one of her judgments of copying in people to emails I had written to her which was completely UNTRUE. I challenged her and she had apparently 'deleted' the emails. SERIOUSLY!

    The failure to even acknowledge the child's rights at the heart of all this may be down to the fact that LGO investigators and Ombudsman may not even be aware of the guidance they are expected to follow where appropriate. This includes their own internal guidance on 'Good Administrative Practcie' and national guidance on issues such as human rights. The importance of taking into account the status of the complainant is made clear in the Ministry of Justice‘s 2009 guidance “Human Rights Framework as a Tool for Regulators and Inspectorate”, However, my personal experience was that senior LGO staff did not even know of the existence of this guidance so clearly could not apply it. Further, the LGO will not deal with any issue which could be dealt with by SENDIST and they will frequently use this to sidestep dealing with complaints. I submitted written evidence to the House of Commons Communities and Local Government Committee on this issue which was published in the Committee’s report on ‘The work of the Local Government Ombudsman.

    In my case, as the pièce de résistance, after two years of fighting the LGO because of their poor handling of my son's very straightforward case, the LGO promised myself and my solicitor time to put together a complaint about the way the case had been handled. Then, before I had even sent my complaint in, an Assistant Ombudsman wrote to me by special delivery, closing my file, and telling me the LGO would not enter any future correspondence with me. This deprived me of the right to access the LGO's complaints process as set out on their own website. And yet the Ombudsman is a public body which is supposed to be ‘the independent upholder of the highest standards of efficient and fair administration’.

    Consequently, in my opinion, and based on my experience, the LGO comes with a 'health warning' in SEN matters.  I am not alone in this view. Indeed, one advocate I spoke to says she believes a complaint to the LGO actually makes thingworse as they will give the local authority a clean bill of health which will encourage the continuation of poor administrative practice. Other lawyers say they would never advise a parent to take their case to the LGO about SEN matters but would advise judicial review.

    So, please take specialist legal advice from a lawyer with experience in public law before getting caught up in potentially lengthy and stressful LGO complaints. Judicial review may be an option in some cases and legal aid may be available in your child's name. 

    This, of course, seems like an expensive waste of public resources when the public already pay for an oversight body like the LGO but our children's rights deserve proper protection.

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