Transcript Document

Governance: Planning and the
Public Services Ombudsman for
Wales; Conduct
Damien Welfare
2-3 Gray’s Inn Square
17th September 2007
Public Services Ombudsman
• Public Services Ombudsman (Wales) Act
2005, in force from 1 April 2006
• PSOW replaced LG, Health, Welsh
Administration and Social Housing
Ombudsmen.
• Appointed Oct 2005
• Accountable to NAW
• 1st Annual Report 2006/7
Ombudsman (cont)
• Primary role:
- to investigate complaints made by
members of public about way in which
treated by public body (eg local govt, NHS,
NAW, community councils [after 1/4/06])
- to promote good administration by
investigating alleged breaches of local
government members’ code
Ombudsman’s service priorities
• 1. Public bodies to treat people fairly & efficiently
• 2. Outreach: to make PSO service accessible
• 3. Informal resolution: where helpful and does not
compromise wider public interest
• 4. Formal investigation where appropriate, but
concern to conclude matters as soon as possible
• 5. Vigorous in seeking redress
• 6. Alert to similar cases; proactive in redressing
• 7. Guidance on administrative practice (sparingly)
Remit of Ombudsman
• Services within remit include:
• Social services, planning, education, social
housing (council and HA), hospital services,
GP services
• Complaints: 25% re planning (2006/7)
• 21 s 16 reports in 2006/7.
Main legislative provisions
• PSOW appointed by Queen (Sch 1, para 1)
• 7 year term
• Power to remove on recommendation of
Assembly, supported by two thirds of
members (Sch 1, para 3)
PSOW Act 2005, s 2
• S2: power to investigate if..
• Complaint “duly made”: by person aggrieved who
claims injustice or hardship (or by person
authorised, or considered appropriate by PSO – s
4); in writing, within 12 months (s 5)
• Complaint “duly referred”, by a “listed” authority
(Sch 3) within 12 months of complaint (s6)
• Or may investigate if complaint not written/made
within 12 mths if he thinks reasonable – s2(4))
PSOW Act 2005, s 3
• S 3: alternative resolution of complaints
• PSO may take any action he thinks
appropriate to resolve, in addition to or
instead of conducting an investigation
(s3(2)
• Any such action must be in private
PSOW Act, s 7
Ombudsman entitled to investigate:
(a) Alleged maladministration in connection with
relevant action (ie discharge of administrative
functions)
(b) Alleged failure in a relevant service (ie a service
which authority has function to provide)
(c) Alleged failure by authority to provide a relevant
service
PSOW Act, s 9
• PSO may not investigate where person
aggrieved has or had:
- Right of appeal to tribunal
- Rt of appeal to Minister/Welsh Minister
- Remedy in proceedings
• Unless PSO satisfied not reasonable to
expect person to resort to it – s9(2)
Section 9 (cont)
• S 9(3): PSO may investigate only if satisfied:
- matter brought to attention of authority
- reasonable opportunity to investigate and respond
• Unless he is satisfied that reasonable to investigate
in particular circumstances – s9(4)
• cf: direct complaint in England (s 26(2), LGA 74).
• PSO interpreting as first time complainant
receives formal written response from authority, or
stage 2 of social services complaint
Exclusions from remit (Sch 2)
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•
•
•
•
Sch 2: exclusions from remit include:
Crime and security
most staffing matters
housing rents
conduct or instruction given in schools
Process of reporting
•
•
•
•
Reports of investigations (s 16)
Publicity for reports (s 17)
Alternative procedure for reports (s 21)
Special reports (ss 22 and 23)
PSOW Act, s 11
• May not question merits of decision taken
without maladministration in exercise of a
discretion – s 11(1)
• Other than as result of exercise of
professional judgement in provision of
health or social care – s 11(2)
• cf s 34(3), LGA 1974 and Eastleigh case
(below)
Meaning of maladministration
• Maladministration: not defined
• cf Section 26(1), LGA 1974: local commissioner
may investigate where member of public claims to
have suffered “injustice in consequence of
maladministration”.
• Richard Crossman (on Parliamentary
Commissioner Bill 1967): “bias, neglect, delay,
incompetence, ineptitude, perversity, turpitude,
arbitrariness and so on”.
Maladministration (cont)
• Local Commissioner, 2000/01 report, listed
six most common causes:
–
–
–
–
–
–
Unreasonable delay
Incorrect action
Failure to provide adequate information, advice
Failure to compile/maintain records
Failure to take appropriate action
Failure to take relevant considerations into a/c
Maladministration (cont)
• R v Local Commissioner ex p Bradford MBC
[1979] QB 287: the “Crossman catalogue” (L.
Denning); “faulty administration”
• R v Local Comm. ex p Eastleigh BC [1988] QB
855 at 863: “manner in which decisions are
reached and..are or are not implemented.. nothing
to do with the nature,quality or reasonableness of
the decision itself” (Lord Donaldson MR)
• Interpretation of s 34(3)
Injustice
• Some prejudice to applicant must be
established - eg loss of opportunity. But
damage not required. R v Local Comm ex p
S (1998) 1 LGLR 633
• May include sense of outrage – R v Local
Comm. Ex p Balchin [1997] COD 146
Administrative functions
• Legislative and judicial functions excluded
• R v Local Comm ex p Croydon LBC [1989]
1 All ER 1033. Decision-making by an
education appeal committee was an admin
function.
Planning decisions
• Annex A of Annual report 2006/7
• Examples of maladministration:
- failure to acknowledge effect of potential
changes in ground levels
- decision based on problem (fly-tipping)
not a material planning consideration; also
contrary to officer advice, and departure
from plan without further publicity
Planning (cont)
- failure to consider safety implications (position
of petrol tank on neighbouring land) - ie material
consideration
- failure (on balance of probability) to notify
neighbour of development to which would have
objected
- accuracy of evaluation section of report
questionable, and no specific evaluation of
development site or impact on neighbours
Code of Conduct
• Part III, Local Government Act 2000
• Conduct of Members (Model Code of Conduct)
(Wales) Order 2001 (by NAW)
• Local Authorities (Model Code of Conduct) Order
2007 [applies in Wales to police authorities]
• LGPIH Bill:
- Wales: Schedule 18 (Assembly powers)
- England: Pt 10 - role of Standards Board, and
devolution to Standards Committees
Differences and issues under
Codes
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Definition of meeting: [W, Pt 1 (wider); E, 1(4)]
When Code applies to Cllr: [W, 1; E, 2(1)(b)]
Equality duty: [W,4 (wider); E 3(2)(a)]
Confidential information [W, 5(a); E, 4(a)(iii) and
(iv), new exemptions]
• Criminal offences: [W, 6(1)(a); E, 2(3) &(4) –
convictions only; only limited private conduct]
• Duty to report misconduct [W, 6(1)(c); E,
dropped]. No E duty to report crime [W, 6(1)(d)]
Codes (cont)
• LA Code of publicity [E, 6(c)]
• Improper use of position [W, 7(a); E, 6(a) –
does not apply to private conduct]
• Decisions on merits [W, 8(a)]
• Registration of gifts, hospitality [W, 9(b); E,
8(1)(a)(viii) - £25 or over]
Members’ interests
• Difference of regime re interests:
– Personal/personal or prejudicial interests
– Narrower definition of “prejudicial” interests under
2007 Code [W, 13 & 14; E, 10]
– No voting in Wales where any personal interest (eg
where relates to other authority of which member)
– Rules on withdrawal eased in England [W, 16(2); E,
12(2)]
• Sensitive information [E, 14]
• Bias/predetermination rules
Concluding questions
• Planning: scope of PSO re maladministration?
• Conduct:
- PSO in strategic guidance role?
- Changes to Code: eg narrower definition of
interests requiring withdrawal? right to make
representations before leaving? declaration, rather
than loss of vote, for some interests?
- or distinct approach?