The work of the Local Government Ombudsman - Communities and Local Government Committee Contents


3  Handling of complaints

Introduction

49.  In this chapter we examine the criticisms that have been made about the handling of complaints by the Local Government Ombudsman (LGO). It is important, however, to acknowledge the volume and nature of the work that the LGO carries out. As we have noted, the LGO dealt with 21,840 complaints and enquiries and its investigative teams pursued 11,249 complaints in 2010-11.[78] On the nature of challenge facing Commission staff we found the assessment of Gary Powell, formerly from LGO Watch and a critic of the LGO, useful:

There will always be a significant number of complaints about local authorities submitted to the LGO that are trivial, misguided or vexatious. [...] it was ironically the case that I developed some sympathy for [its] officers who regularly had to deal with the stress caused by some persistent and vexatious complainants without a valid complaint, as such people would often then turn to LGOWatch for advice and assistance, and their vexatious and unreasonable behaviour would continue.[79]

"Customer satisfaction"

50.  We start with the systems that LGO has in place to evaluate the satisfaction or otherwise of those who use its services. We received evidence criticising the arrangements for collecting customers' views. LGO Watch and Public Service Ombudsman Watchers said that the LGO's 1995 and 1999 customer satisfaction surveys were quantitative in nature involving 1,000 complainants but that, following the extremely poor customer satisfaction levels highlighted in both those surveys (over 70% of all complaints dissatisfied), "the LGO switched to a qualitative customer satisfaction survey involving just a handful of specially selected and filtered complainants". It had then switched back to a quantitative survey in 2007 but it had "received an extremely poor customer satisfaction level" and in 2010 it had reverted "to a qualitative survey involving just a handful of specially selected and filtered complainants".[80]

51.  When we asked Ms Seex about customer satisfaction surveys, she recalled that the last survey, a quantitative survey carried out in 2007, "had about 26% satisfied with the outcome of their complaint".[81] She added that the research showed that it was:

almost impossible to extricate outcome from handling. We followed that quantitative research up with qualitative research because, in doing the survey, MORI had told us that it was very difficult for people who had got an outcome that they did not like or expect to separate that from comments on the organisation.[82]

Looking to the future, Ms Seex said that she would envisage surveys done "about once every three years and to supplement them with qualitative research" and that the Commission needed "to be able to correlate people's reporting of bad experiences with the actual practice that was applied to their complaint".[83]

52.  We accept the LGO's point that outcome may colour responses to customer satisfaction surveys but this is neither unique to the LGO nor grounds to abandon a regular customer satisfaction survey. What is of concern to us is that the perception has grown that LGO does not have a clear and consistent approach to customer satisfaction surveys. We see a strong case for the LGO in partnership with other Ombudsmen in the British Isles developing a common methodology, which would allow comparison between broadly similar organisations and measure changes over time. With the extent of the reorganisation taking place over the next three years we consider that it is essential that the effect of the changes on those coming to the LGO for redress is monitored and measured. We recommend that the LGO develop and publish a methodology for measuring levels of customer satisfaction to apply for the next ten years and, if possible, develop the methodology in partnership with other Ombudsmen in the British Isles. We also recommend that having developed the methodology the Commission carry out a survey in 2013 and triennially thereafter.

Handling of cases by the Local Government Ombudsman

53.  In this section we examine the most common criticisms made against the LGO:

a)  excessive delay in handling cases;

b)  confusion between "mediation" and the LGO's quasi-judicial functions;

c)  where the LGO carries out a quasi-judicial function it neither follows due process nor has the LGO the legal expertise to weigh issues correctly;

d)  the LGO's lack of expertise in areas such as adult social care; and

e)  bias in favour of local authorities.

DELAYS IN HANDLING CASES

54.  In their written submission Robert Murrow and Debbie Sayers expressed concern about the effect on cases concerning children with special educational needs: "Complaints to the LGO may take a year to resolve in which time, parents and carers report that placements may have broken down and relationships deteriorate with schools and [local authorities] because of lengthy investigations. Delay in such circumstances is unacceptable".[84] When he gave oral evidence Guy Crivello, Managing Director of Care for Community Living Ltd, told us that:

there are time limits for local authorities to reply, but my experience over the years is that those are not rigorously enforced. A great deal of latitude is given in terms of what is called a complex case. You can be two and a half years into a case and just be told that it is very difficult to get this information; the local authority has to work very hard to get it. I would certainly have far more rigorously enforced time limits.[85]

55.  From the local authority perspective, Devon County Council said that consistency should be applied in the way the LGO set deadlines both with local authorities and her own investigators. The Council told us that it was "not aware of any timescales for investigators to consider complaints" and pointed out that in the past, investigators themselves have been delayed and this seems to be acceptable. The Council cited one case where it had:

provided a response to the Ombudsman on 22 July 2011 and received an email on 4 November 2011 stating that a different investigator had taken on the complaint offering his apologies that he had "not written to [the Council] before now". In another case, the Council provided a response on 19 December 2011 and received correspondence on 10 February 2012 stating that the investigator was "considering the information". In yet another case, the investigator wrote to the Council stating that a delay had occurred due to "personal circumstances".[86]

56.  When the Ombudsmen came before us on 30 April we put concerns about the time they were taking to determine some cases to them. We set out below the exchange.

Chair: We have had reports [...] that it has taken months for you to come to a decision. People who have put in a grievance tend to ring up to find out where they are at only to be told they are on your desk, and that has been for literally months—I am not talking about two or three months, but six months, or up to a year.

Anne Seex: That is true.

Chair: Is that reasonable?

Anne Seex: No, it is not reasonable, and it is an unfortunate by-product of the interregnum that we have been through. It isn't typical, and it certainly isn't typical of our whole organisation, where 85% of complaints are decided within 26 weeks.

Chair: Sorry, but why is it a by-product of the interregnum? There have been two of you there for some time. There are two of you there now. Why should it take up to 12 months for you, as an individual, to decide some issues?

Anne Seex: It shouldn't. In an ideal world, you would not want that. You would want to be able to pick up a complex case straight away and to devote all the time it needed to reach a decision, but that is not often the world we are in. Sometimes the case is incomplete. Sometimes it takes a long time to complete the work, get additional information and reach a view.

Chair: When someone out there is waiting for a decision, taking 12 months sounds a bit to me like maladministration.

Anne Seex: Very probably. It is not something that we want to see happen, but it is not that that case is sitting there waiting and action is not being taken, or the work isn't being done. It is about how much time you can devote to one particular issue among all the others that need dealing with.[87]

57.  We found Ms Seex's concession that the LGO's delay in determining some cases was itself likely to amount to maladministration grounds for serious concern. An organisation, whose primary job is investigating and determining whether maladministration by others has taken place, must itself take care to avoid maladministration. If it does not, it will undermine its own role and credibility. As Brian Thompson from the University of Liverpool pointed out it was "essential that a body which is seeking to help others improve, practises what it preaches".[88] We urge the Commission to review its current administrative arrangements, as well as those that emerge as a result of the reorganisation, to ensure that the delay in determining cases which amounts to maladministration ceases immediately. We recommend that all processes should be strictly timetabled and that cases for decision through the quasi-judicial process—other than in exceptional circumstances and with the agreement of the parties—should be determined within three months.

58.  When we asked the LGO whether complainants were informed about delays Dr Martin replied "that would usually be the case".[89] We recommend that as part of any new timetabling arrangements complainants are always informed if there is going to be a delay.

CONFUSION BETWEEN "MEDIATION" AND QUASI-JUDICIAL FUNCTION

59.  In its written submission the LGO explained that its job was to provide independent resolution of complaints.[90] Given the volume and nature of the complaints that the LGO receives there has to be more than one process for carrying out its work. These can range from advising those who contact the LGO how to complete the internal complaints processes of a local authority[91] to the full investigation and determination of maladministration cases. Between these poles lie processes some of which have the characteristics of mediation.

60.  We detected two concerns about the mediated process. First, whether it was the most suitable procedure to adopt. Mr Crivello expressed concerns:

The LGO has an institutional prejudice that most complaints can be redressed by talking things over or at most securing an apology. This is a clearly prejudiced constraint placed on the LGO by itself, and cannot be viewed as a credible or impartial approach to commercial concerns, which of course will require commercial remedies or in other words, proportionate financial redress for any financial damage caused by a Council's maladministration or wrong doing.[92]

61.  Second, looking across the representations we received we were not convinced that complainants were always fully aware of the distinct between the mediated process and investigation and determination. Our concerns were underlined by a finding in the Strategic Business Review:

LGO management data shows that during 2010/11 of the total cases investigated, around 15% were determined to be as outside jurisdiction and a further 20% were concluded following exercise of Ombudsman's discretion not to investigate further. The impact of this scenario is that a lot of complainants received two conflicting messages: initially, "yes, we will investigate", later "no, we will not investigate further". The review believes this raises questions of whether work was carried out that could have been avoided, and whether good customer service was delivered.[93]

62.   In our view it is self-evident that the facility to provide a mediated process must be available to the LGO to be used where it is appropriate to achieve redress. Indeed, the Strategic Business Review considered that there was evidence that suggested there were a significant number of cases that were amenable to seeking early resolution.[94] As we have already noted, the reorganisation and transformation programme may lead to fewer cases following the investigative route to formal determination. In these circumstances we consider that the Commission needs to be completely clear how the distinct processes operate and differ as well as the criteria against which complaints are allocated to these resolution processes. In addition, when a case moves from one process to another—for example, if mediation fails and the case is moved to investigation—the shift to a different method of handling has to be made clear to all the parties.

PROCESSES IN CASES THAT ARE INVESTIGATED AND DETERMINED

63.  Where a case falls for investigation and determination by the LGO there is an expectation that the LGO is acting in a quasi-judicial capacity and therefore follows judicial procedures. In its memorandum LGO Watch and Public Service Ombudsman Watchers drew an unfavourable comparison between the LGO and the courts and tribunals, pointing out, among other matters, that:

  • court proceedings were normally held in public;
  • the judge was qualified;
  • a judge could not delegate his or her job to a junior member of staff;
  • all evidence was shown to both sides;
  • a judge was not able talk to one side without the other side being present;
  • courts followed case law or provided a valid reason for not doing so;
  • statements were not accepted as the truth by a judge without (a) being made under oath and (b) tested by counter argument and cross examination by the other party.[95]

64.  In his oral evidence Mr Crivello said LGO handled evidence in a "distinctly un-forensic" manner[96] and he explained that:

In terms of the exchange of information, we have had things cited which have no references whatsoever. Again and again, you get terms like, "The council's officers feel" or "the council have said". When we are submitting evidence we give specific references of the type you will be able to replicate and use in court, not hearsay. That occurs again and again within reports. [...]

The consequences are that it is very difficult to rebut what the person is saying. If the LGO are telling you it is all fine because they have been told by the local authority that they did in fact do something, you might ask when they did it, who did it and whether there is any record to show that, or whether they are just taking an assurance. It is the validation of the evidence put before the LGO and the ability of the complainant to cross-examine it that I think is distinctly un-forensic.[97]

65.   Neither Dr Martin nor Ms Seex has a legal background. Dr Martin pointed out, however, that:

we were appointed at separate times as local government ombudsmen, and being a lawyer or having legal experience was not part of the role. What we bring, I hope, is a common-sense approach to administrative justice. We have legal advisers and professional staff to ensure that our investigations are conducted impartially and robustly, working within a legal and regulatory framework. But our role as ombudsmen with the authority vested in us is to make findings and recommendations of remedy based on the evidence and facts put in front of us.[98]

Ms Seex also pointed out that they were "confident that we should publish all our decisions, and then people will be able to look at them on the website"[99] and in its memorandum the LGO explained that:

During the next year, the LGO intends to establish an open publication scheme where the final decision statement on all cases will be published in an anonymised format on the LGO's website This will provide a comprehensive picture of complaint outcomes for the public and for bodies in jurisdiction and a greater wealth of information on maladministration, service failure and injustice, as well as where practice is validated through an LGO investigation. This will help service providers and users of services to judge their own experience of local service provision and the role of the local authority.[100]

66.  We welcome the publication of the LGO's decisions. Comprehensive publication will provide a body of precedents and standards, to guide not only local authorities but those considering making a complaint on the grounds of maladministration.

67.  The result of the introduction of what the LGO describes as a "new business model with a refocused, more robust, intake and assessment process"[101] arising from the planned reorganisation may result, as the Secretary of State suggested, in "the Commission's processes for handling complaints [being] wholly re-engineered with the focus on those cases involving serious service failure".[102] If this is the case, we can see the advantage in a review of the LGO's handling of evidence in such cases, specifically the review should address to what extent the LGO's processes should be brought into line with judicial procedures such as full disclosure of all submissions. We therefore recommend that the LGO, as part of its reorganisation set up a review of the arrangements for treating evidence in cases involving serious service failure, specifically to what extent the LGO's processes should be brought into line with judicial procedures such as full disclosure of all submissions, with, if necessary in sensitive cases, redactions of personal information.

Mediated cases

68.  As we have noted, the result of the proposed changes may be more mediated cases. Where the mediated process results in an agreement we consider that, in the interests of transparency, these agreements should also be published by the LGO, if necessary in anonymised form.

REVIEW AND EVALUATION OF THE LGO'S DECISIONS

69.  Finally, we considered the representations we received about the quality of decisions made by the LGO and whether the arrangements for reviewing the LGO's decisions needed to be changed. The following points were made to us.

a)  The LGO's staff did not have the expertise to comprehend and report on cases of alleged maladministration arising from all parts of her remit.[103]

b)  The consequence of the LGO failing to follow norms commonly applied by the courts (as noted above) was that it was not able to ensure transparency and fairness between parties and that it was able to handle and test evidence.[104]

c)  There is no adequate mechanism for appealing against a decision of the LGO.[105]

d)  The LGO has a bias in favour of local authorities.[106] Its officers are too close to the bodies they should be investigating impartially.[107]

e)  There is no external independent academic or legal scrutiny of complaints about decisions.[108] In regard to the volume of complaints about the LGO's handling of complaints, we noted that the Strategic Business Review indicated that data for investigating reviews showed that around 10% of cases investigated received a request for a review from the complainant.[109]

f)  There are no audits to assess quality and consistency in approach across teams and offices in LGO investigation work.[110]

g)  There was no published set of criteria as to what should trigger a joint investigation by the Local Government Ombudsman and the Parliamentary and Health Service Ombudsman.[111]

70.  When we put some of these concerns to the Ombudsmen at the oral evidence on 30 April, Dr Martin expressed concern if there was a perception that the service was too close to local authorities. She said that "all our decisions, findings and routes to remedy are based on the evidence—the facts of the matter—and it is absolutely critical that the public have confidence that the investigations we carry out are impartial and independent".[112] Ms Seex added that it would be a "cardinal sin for anybody in our organisation to make a decision based on evidence and not say what that evidence was" and that the routine practice was to "make available to the person who has made the complaint the evidence that we rely on in our decision. Sometimes we cannot do that if the evidence involves third parties".[113] On ensuring consistency of decisions, Dr Martin said that she encouraged "investigatory teams to work very much as teams and to share experiences and support each other" and that jointly with Ms Seex she held "case conferences on the adult social care new jurisdiction and the schools new jurisdiction".[114]

71.  The Parliamentary and Health Service Ombudsman in her written evidence pointed out that in considering how the LGO operated the British and Irish Ombudsman Association's five key criteria for membership should be kept in mind:

  • Independence
  • Fairness
  • Effectiveness
  • Openness and Transparency
  • Accountability.

72.  As we explained in the first chapter, this is a light touch review of the LGO. We are therefore not going to examine the allegations listed at paragraph 69 in detail. We have, however, considered them carefully with the points made by the Ombudsmen and we asked ourselves whether the criticisms were essentially the product of the LGO's rejection of complaints. Given the scale and nature of the evidence put to us we consider that prima facie there are grounds for further investigation to ensure that the LGO is fully meeting the criteria set out by the British and Irish Ombudsman Association. In these circumstances we consider that a new arrangement needs to be developed to give the public and Parliament the assurance that the LGO is meeting its remit and, if not, suggest improvements and changes. We recommend that the LGO working with the British and Irish Ombudsman Association bring forward arrangements to ensure that there is an annual evaluation of the LGO by an external, independent reviewer to ensure that it meets the criteria of independence, fairness, effectiveness, openness and transparency and accountability. We further recommend that the first review form part of the proposed reorganisation of the LGO and that the reviewer consider the matters we raise at paragraph 69 of this Report. The reviewer should be appointed by the end of this year and complete his or her work and publish it no later than Easter 2013.



78   Ev 41, paras 3.6-3.7 Back

79   Ev w4, para 2.9 Back

80   Ev w20, para 3.06; see also Ev w21, para 2 and Ev w5, para 3. Back

81   Q 145 Back

82   Q 147 Back

83   Q 150 Back

84   Ev 38, para 24; see also Qq 55-59 [Robert Murrow]. Back

85   Q 18 Back

86   Ev w11, para 4 Back

87   Qq 106-09; see also Qq 110-13. Back

88   Ev 33, para 23; see also Q 73. Back

89   Q 121 Back

90   Ev 39, para 1.1 Back

91   Ev 40, para 3.2 Back

92   Ev 28, para 3.6  Back

93   LGO, Commission for Local Administration in England: Strategic Business Review, July 2011, para 95 Back

94   LGO, Commission for Local Administration in England: Strategic Business Review, July 2011, para 110 Back

95   Ev w18, para 3.02 Back

96   Q 30 Back

97   Qq 31-32 Back

98   Q 80 Back

99   Q 138 Back

100   Ev 43, para 4.19 Back

101   Ev 40, para 2.11 Back

102   Ev w30 Back

103   For example, Qq 68-71 [Guy Crivello, Care for Community Living Ltd, Robert Murrow], Ev w12 [Paul and Gill Robinson], Ev w18, para 3.02, Ev 35-36, 38 [Robert Murrow and Debbie Sayers], paras 8-11 and suggestions for reform section, Ev 28-29 [Care for Community Living Ltd], para 3, Ev w24 [Sam Burns], Ev w27-w28 [Mr Williams] , Ev w28-w29 [DA Burnett], Ev w32, paras 2.4-2.5, 3 Back

104   For example, Qq 16, 30-32 [Guy Crivello, Care for Community Living Ltd], Q 27 [Robert Murrow], Ev w12 [Paul and Gill Robinson], Ev w15 [Peter Ranken], Ev w18, para 3, Ev 36-37 [Robert Murrow and Debbie Sayers], paras 12-17, 20-22, Ev w32 [Sheila Robb], paras 2.6, 3, Ev 26 [Care for Community Living Ltd], paras 1-2 , Ev w28 [Mr Williams] Back

105   For example, Qq 33, 35 [Guy Crivello, Care for Community Living Ltd, Robert Murrow], Ev w6 [Gary Powell], para 3.13, Ev w13 [Paul and Gill Robinson], Ev w15 [Peter Ranken],Ev 39 [Robert Murrow and Debbie Sayers], Ev w32 [Sheila Robb], para 3 Back

106   For example, Qq 27-29 [Brian Thompson, Robert Murrow and Guy Crivello], Ev w4 [Gary Powell], para 3.11, Ev w1-w21 [LGO Watch and Public Service Ombudsman Watchers], para 3, Ev 37 [Robert Murrow and Debbie Sayers], paras 18-19, Ev w31-34 [Sheila Robb], paras 2.3-2.4, 3  Back

107   For example, Ev w5 [Gary Powell], para 3.11, Ev w12-13 [Paul and Gill Robinson], Ev w28 [DA Burnett] Back

108   Ev w1 [Sandhya Dass] Back

109   LGO, Commission for Local Administration in England: Strategic Business Review, July 2011, para 134 Back

110   Ev w1 [Sandhya Dass] Back

111   Ev w11 [Mr and Mrs Wain], para 7 Back

112   Q 134 Back

113   Q 139 Back

114   Q 157 Back


 
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© Parliamentary copyright 2012
Prepared 17 July 2012