LGO Investigator's guidance notes

You should then work out what you need to find out to establish whether there has been maladministration and whether it has caused injustice. Once this is decided, you need to decide which route you should use to obtain the information needed to fill the gaps.

Gathering further information from complainant

• materials/documents

• interviewing

Informal approaches to the local authority

• telephone requests

• e-mails

• short interviews

• seeing files

• Enquiry letters

• statement of complaint

• what to ask

• proposals to settle

• what to send

• further enquiry letters

Examining the files

• at the Commission's offices

• at the local authority

• what should be copied/recorded

Formal authority interviews

• who to interview

• method

• preparation

• conduct

• afterwards

• example interview notes

Getting information about the site

• documentary evidence / photographs

• visits

Round table discussion

• Internet

• useful websites

• local authority information

• list of local authority websites

• legislation and government guidance inspection

• search engines

Commission guidance

• internal

• external

Other sources

• good professional practice

• guidance for professional bodies

• list of bodies giving advice

• outside consultancy

Third parties

 
Comparable cases

Sifting evidence

• Preparing a document file

• Preparing a chronology

• Example chronologies

• Allegation lists

• Preparing a brief analysis at key stages

Maladministration

• Crossman

• Generic list of faults drawn from LGO talk

Injustice

• No injustice

• Scope of injustice

• When to pursue injustice

Sifting evidence

Investigators will develop their own set of techniques for sifting the evidence, but the following techniques are offered by way of example.

Preparing a document file

Documents are rarely sent in order, and come from a variety of sources. Putting the documents in order, possibly further subdivided down to reflect the various elements of the complaint, may be helpful. Documents sent by the complainant should be noted as such as we may need to return them at the conclusion of the investigation. Any original documents sent by the complainant should usually be
copied and returned immediately.

Preparing a chronology

A chronology lets the investigator map out the key events relevant to the complaint. And it makes it easier to identify the key players and to structure enquiries and lines of questioning. It can be added to as further information is gathered.

Allegation lists

The basic approach is to draw up a list of the complainant's allegations on one side of the paper, and then the local authority's response (or the investigator's view) on the other. This could then transplant into an allegation by allegation structured provisional view letter.

Preparing a brief analysis of the complaint at key stages - eg, receipt, after getting the authority's comments.

If any of the answers to these questions are 'no' then it is likely that the LGO would consider there had been maladministration.

Crossman catalogue

• Arbitrariness

• Bias

• Delay

• Inattention

• Incompetence

• Ineptitude

• Neglect

• Perversity

• Turpitude

And so on ..

• Illegality

• Misinformation

• Unfairness

An alternative way of looking at maladministration is to review against a generic list of faults drawn from talks given by an Ombudsman:

Failing to comply with or take proper account of procedures

• The law

• Circular advice

• A local authority's own policies and procedures

Inadequate or improper consideration

• Take account of all relevant considerations

• Ignore irrelevant considerations

• Consider all available options

• Report that account has been taken of relevant matters

Fettering discretion

• Never say never

• Closing your mind

Failure to respond

• investigating the matter complained of

• Correspondence

• Complaint handling

Delay

• Excessive or unreasonable

• Monitoring and keeping in touch

Failure to act corporately

• Liaison with and between departments

• Proactive advice/one-stop shop

Giving wrong or inadequate advice

• Misleading and wrong advice

•  Partial or insufficient information

• Informing people of their rights

• Broken promises

Failure to keep proper records

• Telephone conversations

• Site visits

• File notes

Note: In some cases under ii) and iii) above, we may identify fault or maladministration and this can and should be drawn to the attention of the local authority, in the closing letter or report, to avoid the recurrence of similar mistakes. Such cases should also be recorded on the LA info screen on Corntrac so that they can be considered in the context of Annual Letters (see Capturing information).

The scope of injustice The Act does not define injustice. As with maladministration, this is left to the Ombudsman to determine. However, in introducing the Bill for the Parliamentary Commissioner, Richard Crossman said that the Government had not tried to define injustice by using such terms as loss or damage because they might have legal overtones which could be held to exclude one thing which he was particularly anxious should remain, and that was the sense of outrage caused by unfair or incompetent administration. The Courts have also upheld 'outrage' as an injustice (eg, Balchin) In considering the effect of actions or inactions on a complainant, the Commission, therefore, takes a broad view of injustice to include both objective loss or damage and subjective feelings.

Examples of objective injustices are:

• financial loss

• loss of a service

• damage to property or amenity

• loss of an opportunity

Examples of subjective injustices are:

• distress

• hurt feelings

• outrage

When should injustice be pursued?

The Act refers only to 'injustice': it does not suggest that there has to be a particular level or degree of injustice before the Ombudsman investigates a complaint. However, the Ombudsman has discretion under section 26(10) about whether to start or discontinue an investigation. Bearing in mind the Ombudsman's duty to use public funds effectively and responsibly it is legitimate to decide that:

• a complaint should not be investigated because the injustice claimed is not sufficient to warrant an investigation;

• the degree of injustice caused is not sufficient to warrant recommending a remedy; or

• a complaint should not be pursued because the complainant is looking only for a remedy which is unachievable or which does not relate to the claimed injustice.

What does "not sufficient" mean?

This is a difficult area because the complainant's perception may be different from yours. While it is for the Ombudsman, or the investigator acting on his or her behalf, to come to his/her own view, you should take care in making an assessment to consider the circumstances of the individual complainant and the effect that any action may have had on them; and not to be hidebound by your own views. This is particularly the case when considering subjective issues of distress or outrage which may result from a specific outcome or from the way someone has been treated. Each case must be assessed on its own merits but there are examples to help assess when to pursue injustice. (See below)

Injustice

Examples to help assess when to pursue injustice

A. Matters which are unlikely on their own to warrant an investigation or a remedy

• The distress caused by a single instance of discourtesy.

• The annoyance caused by a failure to reply to a letter or the misspelling of a complainant's name.

• The reasonable expenditure of time in getting an error put right or a problem resolved.

• The anger caused by the loss of an opportunity to comment on a planning application where other people had made the same comments as the complainant would have done.

• Inconvenience caused by failure to deal with an obstructed footpath which the complainant used only rarely.

• Where financial loss is very small, taking into account the means of the complainant.

B. Matters which may warrant an investigation or a remedy

• The distress caused by repeated discourtesy or significant rudeness - these complaints should not necessarily be dismissed on the grounds that we will not be able to resolve any conflict of evidence. It can be hard to establish the facts in these cases, but we should consider trying to do so where the upset caused appears sufficiently serious, and we may, for example, carry out relevant interviews first to come to a view.

• The loss of an opportunity to comment on a planning application where the comments the complainant would have made were not made by others and they relate to material planning considerations.

• The loss of an opportunity to have a housing application properly considered.

• The distress caused by fault in dealing with a complaint of neighbour nuisance.

• The distress caused by the receipt of a clutch of incorrect parking penalty notices even though a fine has not eventually been paid, unless the complaint is not investigated because of consideration under Section 26 (6) (a).

• The distress caused by failure to act proportionately where a Human Rights Act article is engaged - eg, a disproportionate invasion of privacy.

'Any difference' test

In considering whether maladministration has caused injustice we sometimes have to assess whether the outcome would have been different if there had been no maladministration. The following guidelines should help decision making.

a. Where the local authority acknowledges the outcome would have been different and in favour of the complainant. This would support a finding that there would have been a difference in outcome if there had been no maladministration.

b. Where your preliminary conclusion is that the outcome may have been different. You need to decide whether, on the balance of probabilities, the outcome would have been different. You should make a thorough assessment of the facts for and against a different outcome before coming to a view. In making a decision, take care to avoid a leap of logic or faith. The possibility of a different outcome can become a real prospect of a different outcome when supported by facts as opposed to gut feeling or speculation.

There are two possible outcomes:

• A particular factor or a number of factors taken together show that there is a real prospect the outcome would have been different (ie, you can say that, on the balance of probabilities, if the maladministration had not happened the outcome would have been different).

• The assessment of the facts is not conclusive (eg, because the factors are finely balanced or because their impact is unclear). In these circumstances you would say that you cannot conclude with sufficient certainty that the outcome would have been different.

Note: In these cases there may still be other injustice requiring a remedy. For example:

• a loss of opportunity to comment on a proposal;

• not being properly considered for housing; and/or

• the complainant's continuing sense of grievance arising from his/her perception that there might have been a different outcome if there had been no maladministration.

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