Governance: Planning and the Public Services Ombudsman for

Wales; Conduct

Damien Welfare

2-3 Gray’s Inn Square

17th September 2007

Public Services Ombudsman

• Public Services Ombudsman (Wales) Act 2005, in force from 1 April 2006

• PSOW replaced LG, Health, Welsh Administration and Social Housing Ombudsmen.

• Appointed Oct 2005• Accountable to NAW• 1st Annual Report 2006/7

Ombudsman (cont)

• Primary role: - to investigate complaints made by

members of public about way in which treated by public body (eg local govt, NHS, NAW, community councils [after 1/4/06])

- to promote good administration by investigating alleged breaches of local government members’ code

Ombudsman’s service priorities

• 1. Public bodies to treat people fairly & efficiently• 2. Outreach: to make PSO service accessible• 3. Informal resolution: where helpful and does not

compromise wider public interest• 4. Formal investigation where appropriate, but

concern to conclude matters as soon as possible• 5. Vigorous in seeking redress• 6. Alert to similar cases; proactive in redressing• 7. Guidance on administrative practice (sparingly)

Remit of Ombudsman

• Services within remit include:

• Social services, planning, education, social housing (council and HA), hospital services, GP services

• Complaints: 25% re planning (2006/7)

• 21 s 16 reports in 2006/7.

Main legislative provisions

• PSOW appointed by Queen (Sch 1, para 1)

• 7 year term

• Power to remove on recommendation of Assembly, supported by two thirds of members (Sch 1, para 3)

PSOW Act 2005, s 2

• S2: power to investigate if..• Complaint “duly made”: by person aggrieved who

claims injustice or hardship (or by person authorised, or considered appropriate by PSO – s 4); in writing, within 12 months (s 5)

• Complaint “duly referred”, by a “listed” authority (Sch 3) within 12 months of complaint (s6)

• Or may investigate if complaint not written/made within 12 mths if he thinks reasonable – s2(4))

PSOW Act 2005, s 3

• S 3: alternative resolution of complaints

• PSO may take any action he thinks appropriate to resolve, in addition to or instead of conducting an investigation (s3(2)

• Any such action must be in private

PSOW Act, s 7

Ombudsman entitled to investigate:

(a) Alleged maladministration in connection with relevant action (ie discharge of administrative functions)

(b) Alleged failure in a relevant service (ie a service which authority has function to provide)

(c) Alleged failure by authority to provide a relevant service

PSOW Act, s 9

• PSO may not investigate where person aggrieved has or had:

- Right of appeal to tribunal

- Rt of appeal to Minister/Welsh Minister

- Remedy in proceedings

• Unless PSO satisfied not reasonable to expect person to resort to it – s9(2)

Section 9 (cont)

• S 9(3): PSO may investigate only if satisfied: - matter brought to attention of authority - reasonable opportunity to investigate and respond • Unless he is satisfied that reasonable to investigate

in particular circumstances – s9(4) • cf: direct complaint in England (s 26(2), LGA 74). • PSO interpreting as first time complainant

receives formal written response from authority, or stage 2 of social services complaint

Exclusions from remit (Sch 2)

• Sch 2: exclusions from remit include:

• Crime and security

• most staffing matters

• housing rents

• conduct or instruction given in schools

Process of reporting

• Reports of investigations (s 16)

• Publicity for reports (s 17)

• Alternative procedure for reports (s 21)

• Special reports (ss 22 and 23)

PSOW Act, s 11

• May not question merits of decision taken without maladministration in exercise of a discretion – s 11(1)

• Other than as result of exercise of professional judgement in provision of health or social care – s 11(2)

• cf s 34(3), LGA 1974 and Eastleigh case (below)

Meaning of maladministration

• Maladministration: not defined• cf Section 26(1), LGA 1974: local commissioner

may investigate where member of public claims to have suffered “injustice in consequence of maladministration”.

• Richard Crossman (on Parliamentary Commissioner Bill 1967): “bias, neglect, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on”.

Maladministration (cont)

• Local Commissioner, 2000/01 report, listed six most common causes: – Unreasonable delay– Incorrect action– Failure to provide adequate information, advice– Failure to compile/maintain records– Failure to take appropriate action– Failure to take relevant considerations into a/c

Maladministration (cont)

• R v Local Commissioner ex p Bradford MBC [1979] QB 287: the “Crossman catalogue” (L. Denning); “faulty administration”

• R v Local Comm. ex p Eastleigh BC [1988] QB 855 at 863: “manner in which decisions are reached and..are or are not implemented.. nothing to do with the nature,quality or reasonableness of the decision itself” (Lord Donaldson MR)

• Interpretation of s 34(3)

Injustice

• Some prejudice to applicant must be established - eg loss of opportunity. But damage not required. R v Local Comm ex p S (1998) 1 LGLR 633

• May include sense of outrage – R v Local Comm. Ex p Balchin [1997] COD 146

Administrative functions

• Legislative and judicial functions excluded

• R v Local Comm ex p Croydon LBC [1989] 1 All ER 1033. Decision-making by an education appeal committee was an admin function.

Planning decisions

• Annex A of Annual report 2006/7• Examples of maladministration:

- failure to acknowledge effect of potential changes in ground levels- decision based on problem (fly-tipping) not a material planning consideration; also contrary to officer advice, and departure from plan without further publicity

Planning (cont)

- failure to consider safety implications (position of petrol tank on neighbouring land) - ie material consideration

- failure (on balance of probability) to notify neighbour of development to which would have objected

- accuracy of evaluation section of report questionable, and no specific evaluation of development site or impact on neighbours

Code of Conduct

• Part III, Local Government Act 2000• Conduct of Members (Model Code of Conduct)

(Wales) Order 2001 (by NAW)• Local Authorities (Model Code of Conduct) Order

2007 [applies in Wales to police authorities]• LGPIH Bill:

- Wales: Schedule 18 (Assembly powers)- England: Pt 10 - role of Standards Board, and devolution to Standards Committees

Differences and issues under Codes

• Definition of meeting: [W, Pt 1 (wider); E, 1(4)]• When Code applies to Cllr: [W, 1; E, 2(1)(b)]• Equality duty: [W,4 (wider); E 3(2)(a)]• Confidential information [W, 5(a); E, 4(a)(iii) and

(iv), new exemptions]• Criminal offences: [W, 6(1)(a); E, 2(3) &(4) –

convictions only; only limited private conduct] • Duty to report misconduct [W, 6(1)(c); E,

dropped]. No E duty to report crime [W, 6(1)(d)]

Codes (cont)

• LA Code of publicity [E, 6(c)]

• Improper use of position [W, 7(a); E, 6(a) – does not apply to private conduct]

• Decisions on merits [W, 8(a)]

• Registration of gifts, hospitality [W, 9(b); E, 8(1)(a)(viii) - £25 or over]

Members’ interests

• Difference of regime re interests:– Personal/personal or prejudicial interests– Narrower definition of “prejudicial” interests under

2007 Code [W, 13 & 14; E, 10]– No voting in Wales where any personal interest (eg

where relates to other authority of which member)– Rules on withdrawal eased in England [W, 16(2); E,

12(2)]

• Sensitive information [E, 14]• Bias/predetermination rules

Concluding questions

• Planning: scope of PSO re maladministration?• Conduct:

- PSO in strategic guidance role?

- Changes to Code: eg narrower definition of interests requiring withdrawal? right to make representations before leaving? declaration, rather than loss of vote, for some interests?

- or distinct approach?