3 Handling of complaints |
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.
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.
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".
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".
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.
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
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
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".
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.
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".
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
monthsI 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.
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".
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 processother than in exceptional circumstances
and with the agreement of the partiesshould 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".
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.
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
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.
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
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.
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 anotherfor example, if mediation
fails and the case is moved to investigationthe shift to
a different method of handling has to be made clear to all the
PROCESSES IN CASES THAT ARE INVESTIGATED
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.
64. In his oral evidence Mr Crivello said LGO
handled evidence in a "distinctly un-forensic" manner
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
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.
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.
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"
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.
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"
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".
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.
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
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.
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.
c) There is no adequate mechanism for appealing
against a decision of the LGO.
d) The LGO has a bias in favour of local authorities.
Its officers are too close to the bodies they should be investigating
e) There is no external independent academic
or legal scrutiny of complaints about decisions.
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.
f) There are no audits to assess quality and
consistency in approach across teams and offices in LGO investigation
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.
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 evidencethe facts
of the matterand it is absolutely critical that the public
have confidence that the investigations we carry out are impartial
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".
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".
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:
- Openness and Transparency
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
Ev w4, para 2.9 Back
Ev w20, para 3.06; see also Ev w21, para 2 and Ev w5, para 3. Back
Q 145 Back
Q 147 Back
Q 150 Back
Ev 38, para 24; see also Qq 55-59 [Robert Murrow]. Back
Q 18 Back
Ev w11, para 4 Back
Qq 106-09; see also Qq 110-13. Back
Ev 33, para 23; see also Q 73. Back
Q 121 Back
Ev 39, para 1.1 Back
Ev 40, para 3.2 Back
Ev 28, para 3.6 Back
LGO, Commission for Local Administration in England: Strategic
Business Review, July 2011, para 95 Back
LGO, Commission for Local Administration in England: Strategic
Business Review, July 2011, para 110 Back
Ev w18, para 3.02 Back
Q 30 Back
Qq 31-32 Back
Q 80 Back
Q 138 Back
Ev 43, para 4.19 Back
Ev 40, para 2.11 Back
Ev w30 Back
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,
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
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
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
For example, Ev w5 [Gary Powell], para 3.11, Ev w12-13 [Paul
and Gill Robinson], Ev w28 [DA Burnett] Back
Ev w1 [Sandhya Dass] Back
LGO, Commission for Local Administration in England: Strategic
Business Review, July 2011, para 134 Back
Ev w1 [Sandhya Dass] Back
Ev w11 [Mr and Mrs Wain], para 7 Back
Q 134 Back
Q 139 Back
Q 157 Back