Monday, March 31, 2008

Draft report arrives

I received the draft report on Friday and sent my response back on Sunday. The report is confidential until published by the Ombudsman but once the report is in the public domain I will be free to publish my side of the story.

Sunday, March 30, 2008

Wise words

After 11 years experience with the Local Government Ombudsman my advice is to avoid them at all costs. If if you use them you'll regret it. Maybe not today, maybe not tomorrow, but soon and for the rest of your life because you are putting your faith in a system of justice that doesn't exist.

Saturday, March 29, 2008

The ultimate price of injustice

This is an example of the unnecessary stress levels people have to endure through Public Authority maladministration and incompetence. To the public authority staff concerned it's just a job but to the person concerned it's their life.

Click here to read the full story

I wonder what 'creative compensation' would have been awarded had the LGO been involved. Assuming of course that they actually found the council guilty of anything in the first place. That as everyone knows is a very rare event indeed.

Thursday, March 27, 2008

Equality and Human Rights Commision

If the complaint you submitted to the Local Government Ombudsman included equality and human rights issues (and the majority do, look at the cases they publish on their own website) then the new Equality and Human Rights Commission web site is worth a look.

Promoting and protecting human rights

Public authorities in the UK have obligations to promote and protect human rights, and all public authorities must act in a way that is compatible with the European Convention on Human Rights. This means treating individuals fairly, with dignity and respect, while also safeguarding the rights of the wider community.

The Human Rights Act 1998 makes it possible for individuals to challenge in the UK courts any actions or decisions of public authorities that they believe have violated their rights. Previously, individuals had to take such a challenge to the European Court of Human Rights. UK courts must take account of human rights in their deliberations.

The Act applies to all public authorities (such as central government departments, local authorities and NHS trusts) and other bodies performing public functions (such as private companies operating prisons). These organisations must ensure that they are acting compatibly with the Convention rights when providing a service or making decisions about individuals.

Although the Act does not apply to private individuals or companies (except where they are performing public functions), sometimes a public authority has a duty to stop people or companies abusing human rights. For example, a public authority that knows a child is being abused by its parents has a duty to protect the child from inhuman or degrading treatment.

The Act urges public authorities to apply a human rights framework to decision making across public services in order to achieve better service provision.

Applying a ‘human rights framework’ means including core human rights values, such as equality, dignity, privacy, respect and involvement in decision making, whether a public service is being delivered directly to the public or a new plan or procedure is being devised.

Public authorities must take human rights into account in their everyday work.

Monday, March 24, 2008

News at last?

I have been told to expect news about my case this week.

During August 2007 I published a post called the chronology of delay. This posts updates that chronology.

Chronology to February 2008 in blue. March 2008 to date in black.

June 1997 Borough Council threaten to complete a roadway that would impact on my property.
June 1997 Submitted my first complaint to Local Government Ombudsman.
October 1998 Ombudsman produced a report and asked the council to provide a remedy. Council promise the Ombudsman that the roadway will be redesigned so it does not impact on my property.
June 2001 County Council, without the necessary planning permission, attempt to redesign and complete the roadway. Their plans prove the roadway would still impact on my property.
March 13th 2002 Submitted a second complaint to Local Government Ombudsman.
March 20th 2002 Local Government Ombudsman end their involvement (supposed to be monitoring the Councils actions) with my first complaint.
April 2002 Local Government Ombudsman refuses to investigate my second complaint.
May 2006 After an epic 4 year struggle the Local Government Ombudsman agree to 'comeback' on my 2001 complaint. Informed by Ombudsman that due to the delay my case will now receive some priority.
February 2007 Informed by Ombudsman that the provisional report was nearly ready.
August 27th 2007 Still waiting for the Council to provide a remedy for my first complaint. No provisional report into my second complaint. At this time I have still not even seen the Councils defence of my second complaint.
November 2007 Provisional report arrives at last. 9 months after it was first promised.
December 5th 2007 I submit my response to the provisional report.
February 2nd 2008 Nearly six years since submitting my second complaint and I am still waiting for the final report,
still waiting for the Council to provide a remedy for my first (1997) complaint, still waiting to see the Councils defence to my 2002 complaint and still waiting to see the expert evidence relied on by the Ombudsman.
March 20th 2008 I am finally told I will receive some news about my case after Easter.

So I have ended up with an epic 11 year delay waiting for an Ombudsman to stop a council completing a road that would clearly impact on on my property. A complaint that a five year old child would have no difficulty in understanding and resolving in weeks. So why couldn't the Local Government Ombudsman?

Thursday, March 13, 2008

Anniversary

Today is the sixth anniversary of the date my second complaint was submitted to Pat Thomas, the then Local Government Ombudsman. [My first complaint was submitted in June 1997.]

My second complaint concerned the fact that the County Council was breaking an earlier promise
[1] made to her.

Essentially, whilst Mrs Thomas was supposedly monitoring the situation, regarding my first complaint, the County Council was attempting to maladminister their way out of the problem. The plan produced by the County Council clearly show the roadway would have a serious impact on my property by interfering with my right of way, trespassing on my land and infringing my human rights.

A few weeks after submitting my second complaint Mrs Thomas ended her involvement with my first complaint and refused to investigate any further.

The current Ombudsman Mrs Anne Seex agreed to comeback on my second complaint during 2006. This has still not been concluded.

17 years (Ombudsmen involved
for the last 11 years) and I am still waiting for the problems [2] that began in the early 90's to be resolved.

[1] That the roadway adjacent to my property would be completed without any impact on my property.

[2] Problems created when the council allowed the construction of a new roadway in the wrong [3] position.

[3] Not in the planned, approved or bonded position.

[Footnote]
The developer was under a legal obligation to ensure the roadway was adopted by the Council in 1994. This Company was dissolved in 2004. Between 1994 and 2004 the Council took no action against the developer to secure completion of the roadway. During this time they allowed the developer to continue to build and sell houses. The roadway remains unfinished and unadopted. The play area and open spaces remain unadopted. The Council is maintaining the unadopted road to minimise complaints from residents and give the illusion that the roadway has been adopted. Ironically another developer, who was allowed to complete the site, is still maintaining part of the roadway that was adopted in 2005.

Since 2005 we have had the bizarre spectacle of the Council maintaining the unadopted part of a road whilst the developer maintains an adopted part of the road.

Tuesday, March 11, 2008

Negligence by design

Kane v New forrest DC [2001] E.G. 132, CS: [2001] EWCA Civ 878, distinguishing stovin v wise [1996] AC, 923 A local planning authority may not be immune from liability in negligence if it has permitted and required the construction of a foreseeable dangerous path.

In March 2005 Government published a draft Corporate Manslaughter Bill. The bill would introduce a new, specific offence of corporate manslaughter. An organisation would be prosecuted for this if a gross failing by its senior managers to take reasonable care for the safety of their workers or members of the public caused a person’s death. There have been some concerns that Highway Authorities may be liable under Corporate Manslaughter if it is found that a defect in design has resulted in death, and that this may stifle innovation in street design. The Government is alert to this issue and does not want to give design guidance the status of mandatory requirement by introducing the offence of Corporate Manslaughter. Authorities will need to show that they have carried out a risk assessment if departing from guidance, however. Again this points to the need for a documented and balanced design sign-off system that allows for authorities to move beyond normal design standards when appropriate.

Systemic maladministration

Mary Seneviratne 'Public Services and Administrative Justice' (2002) Butterworth:

It can be argued that one of the primary functions of an ombudsman is to seek out causes of injustice at the systemic level, in a way that a court of law could never do.

Harlow and Rawlings 'Law and Administration' (2nd edn. 1997) Characterise the two different functions of the ombudsmen as fire-fighters and fire-watchers. Their fire-fighting role is similar to that of the courts, providing remedies for individual grievances. The fire-watching role is that of inspection and audit. In essence seeking out causes of injustice at the systemic level).

The fire-fighting role of the UK public sector ombudsmen was set by the report that proceeded the establishment of the Parliamentary Ombudsman. It took a narrow, grievance redressing view of the function of an ombudsman, and did not even consider the objective of identifying and eradicating administrative inefficiency.

None of the public sector ombudsmen in the UK are empowered to conduct 'own initiative' investigations and in this respect they are out of line with ombudsmen in other systems.

LGO investigation manual

The investigation manual of the LGO sets out a number of useful examples of lines of enquiry that refer to the Human Rights Act for investigating complaints in councils.

  • Has the council checked relevant policies and procedures for compliance with the Human Rights Act?
  • Has the council taken (or followed) legal advice on the human rights implications of the action or decision complained about?
  • What objective was the council pursuing in restricting or interfering with the complainant's convention rights?
  • Where a complainant's convention rights have been restricted did the council consider less restrictive options than that chosen, and if so, why were they rejected?
  • Did the council consider or follow the requirements of procedural fairness arising from the Convention and Court decisions?

Human Rights: Property

Can the state interfere with how I use my property?

You have the right to peaceful enjoyment of property without interference. You have the right to use, develop, sell, destroy or deal with your property in any way you please. The right to protection of property means that public bodies cannot interfere with the way that you use your property unless there is a law that lets them do it and unless interference is justified.

Anxious Scrutiny

If a public body has interfered with your human rights the Courts must look, with “anxious scrutiny”, to see if the interference was really necessary to achieve one or more of the stated aims recognised by the Convention. If the answer is no, the Courts will find that the public body has acted unlawfully.

Interference with Protocol 1, Article 1 is permissible only if what is done:

A. has its basis in law; and

B. is done to secure a permissible aim set out in the relevant Article, for example for the prevention of crime, or for the protection of public order or health; and

C. is necessary in a democratic society, which means it must fulfil a pressing social need, pursue a legitimate aim and be proportionate to the aims being pursued.

One advantage for the citizen is that the burden of argument shifts from the claimant to the defendant public authority. The claimant no longer has to demonstrate unreasonableness, but rather the defendant needs to produce a justification for the decision that satisfies the court that it was properly made.

Human Rights implications

Audit commission, Public Sector, National Report: Improving Public Service Delivery

Because of the Human Rights Act, when public authorities are considering whether to take an action (or not to act), they should ask themselves:

1. Do I have a lawful power to do (or not to do) this?

2. Is what I am doing proportionate i.e. do the aims justify the means?

3. What is my objective? Is it relevant and necessary?

4. Is there an alternative course of (in)action which impacts less on rights while achieving the same aim?

5. Do I need to act now, or can it wait?

6. Is there a record of my reasoning, either for future reference in rights-related
situations, or in the event of a query about the current situation?

Public bodies that fail to consider human rights implications in their consultation processes have been ordered by the courts to remedy this by repeating the processes incorporating human rights elements (R (Madden) v Bury Metropolitan Council 2002).

Public authorities must ensure that their decision making processes take into account individuals’ human rights (R (Robertson) v Wakefield Metropolitan Council 2002) and (R (K) Newham London Borough 2002).

Wednesday, March 05, 2008

LGO and Human Rights

When Public Service Ombudsmen (This includes Local Government Ombudsmen) deal with a complaint of maladministration that also includes an infringement of the complainant's human rights by a public authority, Public Service Ombudsmen must not merely refrain from infringing the human rights of the complainant themselves. In order to comply with their positive obligations under the constitution, Public Service Ombudsmen may also have to take positive steps to protect the complainant's human rights from being infringed by the public authority.

Saturday, March 01, 2008

Another dissatisfied customer of the LGO

Another dissatisfied customer of the Local Government Ombudsman has put their story on-line for everyone to read. This one is about Grants, Worcester City Council and Jerry White the Local Government Ombudsman based in Coventry.