Local Government Ombudsman

July 1st, 2022

In PIFFS ELM LTD v COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND (2022) EWHC 1547 (Admin) the Court holds that the Local Government and Social Care Ombudsman (the LGO) has an implied power, under Section 30 in Part 3 of the Local Government Act 1974 (LGA 1974) to withdraw a Final Report, in order to conduct further investigation, under Sections 24A, 26 and 28, and potentially to issue a further Report, with a different outcome.

The statutory provisions confer a very wide discretion on the LGO to decide what complaints he/she should or should not investigate and whether or not to continue or discontinue any such investigation, subject to review by the Court on the usual public law grounds.  Authorities have emphasised the informal nature of the process.

The Courts have noted the utility of the practice of the LGO of inviting comments on their draft Report from the authority and the aggrieved person before the decision is issued.

Section 26(6) provides:-

“A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say-

(c)        any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law;

 

Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or have resorted to it.”

As to the point in time at which Section 26(6) can apply, the Judge said, at paragraph 21:-

“i)  Section 26(6)(c) contains a jurisdictional bar to the LGO conducting an investigation into any action where the person has a remedy by way of legal proceedings, save where he/she is satisfied that it is not reasonable to expect that person to resort to or to have resorted to that remedy (so that the proviso of s.26(6) applies);

  1. ii) Once an investigation has commenced, s.26(6) does not itself apply, but if it becomes apparent that the issues under investigation could be resolved in a Court of law, the LGO is required to exercise his general discretion to continue to discontinue an investigation (now conferred by s.24A(6)) in a way that reflects the terms and intent of s.26(6);

iii) Although the existence of a legal remedy is not a complete bar to the LGO investigating a matter, the general thrust of s.26(6) is that questions which can be resolved on an application for judicial review will be more appropriately considered by this Court; and

  1. iv) Where a LGO conducts an investigation in circumstances where he/she had no jurisdiction to do so because of a statutory prohibition, that investigation would be ultra vires, as discussed by Collins J in M v LGO, at paras 35-38 (in relation to whether the investigation in that case offended the prohibition in s.26(8) LGA 1974 read with Sch.5 para 5(2)).  However, where the continuation /discontinuation of an investigation is for the LGO’s discretion, the Courts will only interfere with that exercise of discretion on conventional public law grounds.”

It was common ground that LGA 1974 contained no express power permitting an Investigation to be re-opened, and a Section 30(1) Report to be withdrawn, after it has been issued. From para 63, the Judge addressed the legal principles and case law relating to functus officio.  At paragraph 74 she said:-

“I will not attempt to identify an exhaustive list of relevant matters, and the particular statutory provisions and context will always be of central importance. However, these authorities do indicate certain factors that are likely to assist in determining whether a public authority has an implied power to re-take a particular action or decision or it is functus officio once it has exercised the relevant function, in particular:

  1. i) Whether the statutory provisions create a comprehensive and detailed code in respect of that function;
  2. ii) Whether the statutory scheme is consistent with re-taking the particular action or decision;

iii) Whether a power of withdrawal would promote or undermine the legislative scheme;

  1. iv) Whether the function in question determines or impacts upon substantive rights;
  2. v) Whether a measure of discretion and/or informality is involved;
  3. vi) Whether express provision is made for more limited circumstances in which an action or decision may be withdrawn and re-taken;

vii) Whether there is an apparent reason for the absence of an express power’

viii)    Whether the existence of absence of an implies power would result in practical difficulties and/or undue complexity, delay or expense; and

  1. ix) The extent to which attaining finality is of particular importance in that context.”

She concluded:-

“85.    Having considered all the circumstances, I conclude that there is an implied power to withdraw a final report and remake the decision (with such further investigation as is necessary) where the LGO reasonably considers that the decision is flawed by legal error; and that such a power is consistent with, rather than contrary, to the LGA 1974 provisions. In particular I note that:

  1. i) The statute confers on the LGO: a broad power to investigate (s.24A(6)); a broad power to decide on the appropriate procedure (s.28(2)); and a broad power to determine what standards to apply and what does or does not amount to maladministration (para 15 above);
  2. ii) The LGA 1974 does not expressly confer a more limited power of review, it is simply silent on the point;

iii) The LGO does not determine legal rights (s.28(4)) and as set out in s.31, the LGO makes recommendations as to actions the authority should take, he/she does not issue directions requiring, for example, an amount of compensation to be paid or other steps to be taken (paras 10 and 12 above). Further, the legislation contemplates that where legal action is available, questions of law will usually be determined by the Courts rather than by the LGO (paras 19 and 21 above); and

  1. iv) The issuing of a report under s.30(1) does not conclude the LGO’s role in relation to the complaint. In para 12 I have described the process that followings including (potentially), two stages of the LGO making recommendations as to the steps the authority should take consequent upon the report.  In addition, to the general point that the LGO’s role is not at an end, I accept that it would be undesirable if the LGO had to embark on this process in respect of a report that he/she believed to be flawed in its reasoning until it was quashed by the Court.
  1.       I do not accept Mr Hunter’s submission that, on analysis, the terms of LGA 1974 point in the opposite direction. In particular:
  1. i)  I do not consider it significant that s.24A(6) makes no express reference to withdrawing a report or re-opening an investigation. This does not in itself indicate that Parliament did not intend such a power to exist. As I have indicated, if s.12 IA 1978 applies, a power of withdrawal is simply ancillary to a power to make the decision on more than one occasion; and in terms of the statutory language, if the LGO considers the report that has been issued is flawed so that further work is necessary, then it can be said that their investigation “continues”;
  2. ii) I do not attach significance to the word “completes” in s.30(I); it simply indicates when a report should be prepared and provided; its terms do not preclude a decision to re-open the investigation and provide a further report;

iii)      I do not agree that the terms of s.31 are inconsistent with a power to withdraw a s.30(I) decision. Mr Hunter emphasised that the stages identified in s.31 are detailed and prescriptive. Even if that is correct, s.31 is concerned with action to be taken consequent upon a report, not with whether the report itself can be withdrawn after it has been issued.

  1. Furthermore, I do not consider that an implied power to withdraw a decision that the LGO reasonably considers to be flawed by legal error would undermine the statutory scheme. To the contrary, this would be consistent with and promote good administration. A limited power of this nature would not encourage a lack of finality; the alternative would be likely to take longer. If a report is legally flawed by the LGO has no power to withdraw it, a judicial review application would have to be brought and a quashing order, or equivalent relief, obtained before further investigation could be undertaken. The LGO could not apply to judicially review his/her own report, so presumably either the complainant or the authority would need to be prepared to do so.  Inevitably, additional costs, as well as delay, would be involved. Furthermore, withdrawing a report because its reasoning is flawed by legal error, is closely analogous to the exceptions to the functus officio principle that have already been recognised to exist (para 64 above).

 

  1. On the other hand I do not see that any particular unfairness would result from the existence of such a power. A party who preferred the original decision will still have the opportunity to challenge the new report and/or the withdrawal decision if they considered that it is flawed by public law error.

 

  1. For all these reasons I would be strongly inclined to conclude that the LGO does have the power to withdraw a report that he/she considers to be flawed by legal error and to re-open the investigation and issue a new report. …”

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