Ombudsman told reports not necessary in settled complaints cases

R v Commissioner for Local Administration for England ex p
Maxhuni (12 July 2002) is a case which concerns the local
government ombudsman’s power to “settle” complaints cases
without producing a formal report.

In over 1,000 cases a year the ombudsman will start an
investigation into a complaint that local authority
maladminstration has caused injustice to a person. However, large
number of these complaints are compromised with the local authority
offering to make changes or to pay some compensation to the person

If the ombudsman believes the offer is a sufficient one then a
letter is sent to the complainant stating why this is so and
stating that the ombudsman will no longer investigate the
complaint. No further publicity is given to the case and sometimes
the compromise is subject to a no publicity clause.

In terms of social services complaints, only about 35-40 of the
complaints made actually result in a full investigation report
being written, which then, by law, has to be publicised by the
local authority.

However, in section 30 of the Local Government Act 1974 it is
stated that where the commissioner “conducts an investigation” he
must “send a report of the results of the investigation” to the
complainant. If he decides not to investigate a complaint he must
“send a statement of his reasons for not conducting an
investigation” to the complainant.

In this case (which concerned housing benefits) it was argued
that the wording of section 30 meant that where the ombudsman had
started an investigation, which he then decided to discontinue (for
instance, because of settlement proposals), there was an obligation
on him to produce a report in any event (which would then have to
be publicised by the local authority).

However, the court of appeal disagreed. It decided that for the
purposes of the section “conduct” meant “initiate and carry through
to completion”, and therefore a report was not required in
discontinued cases, and all that was required was a statement of
reasons for the decision to discontinue.

Comment: The case has cleared up an uncertainty in the statutory
language, but to the disadvantage of complainants whose main
purpose in making complaints to the ombudsman is to seek publicity
about the maladministration by the local authority. It would
clearly have been difficult for the ombudsman to have produced
reports in every case – and some councils may have been
reluctant to settle if they knew the grievance would still be
publicised through the report, but surely such a system would have
added to greater transparency, and to an increased sense that the
grievance had been fully dealt with.

Stephen Cragg

Doughty Street Chambers

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