Saturday, September 12, 2009

Section 32(3) notices

The council wrongly served a Section 32(3) notice on the LGO during my complaint but the LGO didn't do anything about it. Just let the council waste everyone's time with impunity. The LGO didn't even attempt to get the notice lifted and only persuaded the council to lift the notice after many months of pressure from me.

Therefore, I thought it would be interesting to find out just how many notices were served on the LGO by councils, how many times the LGO has asked the Secretary of State to lift the notice and how many times the LGO had found the council guilty of maladministration for wrongly serving a Section 32(3) on them.

My Freedom of Information request can be read here. As with my previous Freedom of Information requests to the Local Government Ombudsman if they try to avoid giving me the information I will make the same request to every single council in country. [I had to do this when they refused to tell me how many times they had informed a council that a council officer had lied to them during an investigation. Not only did I get the information the resonses clearly indicate why the LGO did not want the information to become public knowledge.]

For those that don't know what a Section 32(3) notice is the following may be of interest.

Section 32(3) of the 1974 Local Government Act is supposed to help councils stop the LGO from disclosing the content of sensitive documents, such as written advice from their legal counsel/barrister or other experts, to the complainant.

During an investigation the LGO should, but often don't, ask the council for a defence to the complainants allegations together with their evidence. On many occasions the council don't even want the complainant to even see and their defence let alone the advice given to them by their own legal counsel. On other occasions they don't want the complainant to find out they have no evidence to support their position.

Therefore, many councils wrongly serve a Section 32(3) notice on the LGO to stop them giving the complainant information which they are actually entitled to. Unfortunately this stops the LGO in their tracks because they cannot give the complainant any knowledge of the information subject to the Section 32(3) notice.

What the LGO should do, if they feel the council is wrongly using the notice to delay the investigation, is immediately ask the Secretary of State to lift the notice. However, they very rarely, if ever, do so, they normally waste the next few months and sometimes years trying to sweet talk the council into lifting the notice voluntarily.

After the council has used the delay to their advantage they eventually comply and lift the notice so the investigation into the complaint against them can continue. The LGO then quietly forgets that the council misused a Section 32(3) notice.

During the long delay between the serving of the Section 32(3) notice and the eventual lifting of the notice the council has given themselves more than enough time to go through the complaint against them in detail and construct a much better defence to the complaint than would have otherwise been the case. All whilst the LGO stands idly by watching from the sidelines.

When the investigation continues the complainant is usually faced with some 'newly identified/created evidence' to support the councils position, which the LGO accept and promptly close down the complaint without giving the complainant the time to properly respond to the 'new evidence'.

If you ever go to court you will find that they have a system that ensure the simultaneous transmission of evidence between parties. Can you imaging if one party managed to get the other party's evidence months before they had to disclose theirs? The advantage is obvious but something that our so called 'impartial' Local Government Ombudsmen let happen on a daily basis.

More on this subject when I receive a response to my Freedom of Information request.

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