During a recent clash between a council and the ombudsman the following comments were made.
Councillor: John Bevan, cabinet member for housing, said: ‘It is not the ombudsman’s role to second-guess councils’ interpretation of the law in complex areas like homelessness.
‘The ombudsman’s remit is administration, not legal interpretation, and in this case he is clearly overstepping the mark.’LGO: Mr Redmond stood by his report. He said: ‘There is no clear record of what decisions the council took or why it took them, and this is why there was a finding of maladministration.’
This exchange highlights one of the fundamental flaws in the current system of administrative justice in England. I am not suggesting for one minute that this particular council exploited this flaw but their comments do highlight what it is.
All an unscrupulous council has to do, to avoid a serious finding of maladministration, is tell the ombudsman there are 'legal' issues involved. Whether it's true or not is irrelevant because this manoeuvre effectively castrates the ombudsman leaving them with little choice but to restrict any further investigation to minor and inconsequential administrative errors such as delay or failure to keep records. The system is such that a councils can 'manipulate' the complaint to become a legal issue or even manufacture a legal issue out of thin air. Either way it stops the LGO dead in their tracks.
Here is a hypothetical example:
A council infringes your legal and/or human rights. You complain to the LGO. The council states it took legal advice on the subject and as far as they are concerned they didn't interfere with your legal and/or human rights. LGO cannot find them guilty of maladministration even if they know the council interfered with your legal and or/human rights. The best the LGO can do is identify a minor administrative error such as delay and report on it.
Unfortunately the LGO compounds this flaw by failing to inform complainants clearly and concisely about this serious deficiency in their ability to fully investigate complaints. The reason they do this is because they don't want the general public to realise that the administrative justice system currently operating in England is just a worthless sham.