HC Deb 23 November 1982 vol 32 cc827-34

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Berry.]

11.58 pm
Mr. John Heddle (Lichfield and Tamworth)

I am grateful to you, Mr. Deputy Speaker, for this opportunity to raise the subject of the annual report of the Commission for Local Administration in England.

I am grateful to the Under-Secretary for attending at this late hour to listen to my points. I am particularly pleased to have the company of my hon. Friend the Member for Perth and East Perthshire (Mr. Walker). I am also pleased to see my hon. Friend the Member for Chipping Barnet (Mr. Chapman), whose knowledge of these matters is considerable and whose company I very much welcome.

As the Minister will know, if his doctor makes the wrong diagnosis; if his dentist poisons his gum; or if his surveyor fails to recognise the dry rot in a house that my hon. Friend wishes to buy in the constituency that he nurses so assiduously, he can sue those people for professional negligence. The doctor, the dentist or the surveyor has recourse to his professional negligence policy and can make good the damage that my hon. Friend the Minister may have suffered as a result of that negligence. Such is not the case if a member of the public—Mr. or Mrs. John Citizen—suffers loss through the negligence or maladministration of a local authority.

I am delighted to have the company of my hon. and learned Friend the Member for Colchester (Mr. Buck) who has, through his thriving practice at the Bar, great experience of these matters. I draw the attention of the House to the annual report of the Commissioner for Local Administration in England, who is commonly known as the local government Ombudsman. The Commissioner's terms of reference are similar to those for Scotland and Wales but, as I shall illustrate, are different from those for Northern Ireland.

The system as it works in Northern Ireland affords greater protection to Mr. and Mrs. John Citizen in two crucial respects. Direct access to the Ombudsman is available to members of the public in Northern Ireland but not to the public in England, Wales and Scotland and redress in cases when the Ombudsman finds in the complainant's favour—the complainant in this case being Mr. and Mrs. John Citizen—and that the local authority has been guilty of maladministration or negligence is different.

The office of local government Ombudsman, whose official title is commissioner for local administration, was established by the Conservative Government in 1974. People who feel that they have been treated unjustly by their local council and have thereby suffered financial loss or some other damage can obtain the satisfaction of knowing that an independent umpire—I believe that to be the definition of Ombudsman—has examined the matter but cannot necessarily obtain compensation for the damage or loss that they have suffered. They must make their complaint through a councillor.

I suspect that few of my constituents or the rate-paying public in the West Midlands know of the existence of the office of the local government Ombudsman. Few of them know that he or she resides in Queen Anne's Gate here in the City of Westminster and few know who their local councillor is. Therefore, they are debarred from making a complaint through the normal procedures.

In practice, an increasing number of complaints are sent to the Ombudsman when the general public have taken the trouble to find out what procedures are available to them without going through a councillor. When that happens, a complaint is not accepted, but the complainant is advised by the local government ombudsman of the correct procedure. My hon. Friend will know that in England, 1,953 complaints in 1981–82 as compared with 1,756 complaints in 1980–81 were made direct to the ombudsman.

The English commissioner says that about 50 per cent. of direct complaints come back, properly referred by the councillor to him. Others are settled locally and others are lost in the mists of apathy. A similar pattern has emerged with the Scottish commissioner who, in his most recent report expressed anxiety at the number of people who, having made a direct complaint, have felt disheartened by the statutory reference requirements and have not proceeded to make their genuine complaints known.

It is clear that many people are having to ask their councillor to refer their complaint to the Ombudsman. Moreover, local councillors cannot always be counted upon to make that complaint, for reasons that I shall deal with later. It is a cumbersome way of proceeding. For example, what is the position of the local councillor when he disagrees with the complainant's complaint or when he is politically in tune with the local authority? I shall give a specific case in a moment.

I shall quote from the report of the Scottish commissioner for the current year. He said: Certain councillors definitely consider it to be disloyal to refer to the commissioner a complaint against their council … There are occasions on which particular councillors may be so identified with the policy criticised in the complaint that they may find it difficult if not impossible to agree to refer the complaint to him.

Baroness Serota has just retired as commissioner for England. In her latest report, she said: Experience over eight years clearly supports the commission's proposal that people should be able to complain either direct to me or through a member", meaning through a member of the council.

The safeguard for authorities would remain because no complaint could be investigated by a local Ombudsman until the authority concerned has had a reasonable opportunity to consider it. That proposal is almost identical to that proposed by the committee of Justice that sat in 1980 and considered the whole terms of reference of the local government Ombudsman. I understand that the National Consumer Council, which has helped by providing me with background information, has been in touch with my right hon. Friend the Minister for Local Government and Environmental Services. In his reply, my right hon. Friend referred to the necessity for the local government Ombudsman to sift through trivial complaints to prevent his being inundated with trivia. I understand that.

The Ombudsman already has the work involved in dealing with complaints that he or she receives directly in any event. There is no evidence that they are more or less trivial than the complaints received by the Ombudsman through councillors. Research by the English commission shows that over 90 per cent. of people who complained direct to the local government Ombudsman had already complained to the council, to a councillor or to both.

There is little sifting left to do. In some cases, the councillor may secure a local settlement to the complaint. In most cases, that possibility has been exhausted. To insist that the direct complaint should go back to a councillor who is busy with other matters imposes an unnecessary burden on the councillor who is, by and large, unpaid for the time that he gives to these services. It undermines public confidence by seeming to create yet another hurdle in the method of pursuing a grievance.

It would be far better to allow direct access generally and for the Ombudsman to decide in a consistent way which complaints to pursue. As my hon. Friend the Minister will know, this is precisely what happens in Northern Ireland. The local Ombudsman, called I believe, a Commissioner for Complaints, is able to deal with the volume of complaints satisfactorily. My concern is not with the detail but with the beginning and the end, the alpha and the omega—the ease with which Mr. and Mrs. John Citizen can apply to the Ombudsman to have his or her case considered. When the Ombudsman determines that negligence or maladministration exists, some method has to be devised whereby the public can obtain redress, damages and satisfaction from the local council, as would be possible where a doctor, dentist or surveyor is involved.

I wish now to refer to the enforcement of the Ombudsman's recommendations. The Ombudsman in England, in. Wales and in Scotland operates under terms of reference that preclude him from making his findings binding upon the local authority or the defaulting councillors. Even if the Ombudsman concludes that there has been maladministration or negligence, leading to injustice or to a loss, and suggests a remedy, the local authority is free to ignore his findings.

It is important to keep the problem in perspective. According to the local government Ombudsman for England, 856 out of 918 findings of injustice arising from maladministration between April 1974 and March 1982 were satisfactorily agreed where the final outcome was known. That is 93 per cent. This leaves 7 per cent. unresolved in the eyes of the Ombudsman and possibly more in the eyes of the complainant. Under the cumbersome procedure that operates, there may be a considerable number of complaints that never reach the Ombudsman's desk. That is by no means catastrophic, but it offends the public sense of natural justice to see a finding against a powerful and, for Mr. and Mrs. John Citizen, unaccountable public body being completely disregarded.

Those instances tend to reinforce the often unfair accusation made by members of the general public that the Ombudsman is a toothless watchdog. The purpose of my seeking the Adjournment debate is to endeavour to give that watchdog more teeth.

Mr. Bill Walker (Perth and East Perthshire)

My hon. Friend will be aware that the chairman of the Select Committee, on which I sat, on occasions had to call individuals and other people representing groups before the Committee on certain matters, when the Ombudsman was dissatisfied because action had not been taken.

Mr. Heddle

I am grateful to my hon. Friend for that contribution. I value it, knowing that he and my hon. and learned Friend the Member for Colchester have great experience of those matters. I know of my hon. and learned Friend's close co-operation with the parliamentary Ombudsman.

My hon. Friend the Under-Secretary will be aware, as is my hon. Friend the Member for Chipping Barnet (Mr. Chapman), of the classic case of a Midlands local authority. It dillied and dallied for two years on an application by a council tenant to exercise his right to buy, while the council shuffled the right-to-buy application forms from out tray to in tray, from in tray to tea tray and back again. In the meantime the value of the house that the secure tenant wished to buy increased by £1,400. So frustrated was the tenant by the delaying tactics of the hostile local authority that he reported the matter, through a councillor, to the local government Ombudsman. He called in the papers from both sides and deliberated on the matter. He determined that the council had been negligent in the way in which it had dealt with the application by the tenant to buy his home. In the intervening two-year period, the value of the house had increased by £1,400. The local government Ombudsman suggested that the local authority should reduce the price of that house for the secure tenant by £1,400. What happened? Nothing. The local authority decided to ignore the local government Ombudsman's recommendations.

The purpose of my raising the matter is to seek to ensure that no other secure tenants exercising their democratic right to buy under the Housing Act 1980—and, I hope, more, when the Housing and Buildng Control Bill, which we discussed today extends the right to buy to more people—will be subjected to municipal gazumping.

My point is not about the rights and wrongs of council house sales. It is that councils can undermine the intention of legislation. If they are found guilty of maladministration or loss, they can still ignore the findings of the umpire and go scot free. Mr. and Mrs. John Citizen are therefore left to pick up the tab.

Various solutions to the problem have been canvassed. The most draconian would be to give the Ombudsman or my right hon. Friend the Secretary of State the power to direct councils to comply with the Ombudsman's findings. That would necessitate an appeals procedure. As my hon. and learned Friend the Member for Colchester will agree, that would elevate the matter to a judicial vein. We wish to avoid that.

The informal co-operation at present between authorities and the Ombudsman could be undermined, which allows a successful conclusion to be reached in most cases. Local government could adopt a policy of voluntary compliance with the Ombudsman's findings. Many local authorities, certainly Lichfield district council and Tamworth borough council, have done that, even when they have disagreed with the Ombudsman, so that they can keep the peace and retain good will between the ratepayers and the town hall.

I should like to draw the Under-Secretary of State's attention to another solution. In Northern Ireland the operation works differently and apparently more successfully in cases of redress. I quote from the pamphlet of the Northern Ireland Ombudsman which was put out by the Commissioner for Complaints, as he is called there. The Commissioner has no power to compel a settlement, but the complainant has the right to apply to the county court for compensation for a grievance which the Commissioner has upheld but which has not been settled". That policy was endorsed by the committee of Justice in its report in 1980, which I commend to my hon. Friend. It has not led to a long succession of complaints to the courts. On the contrary, according to the information that I have received, since 1976 only one case that would have fallen within the local Ombudsman's remit in England, Wales and Scotland, would have gone to court.

It would appear that the court acts as the long-stop that is there when needed and perhaps, consequently, hardly, if ever, used. My hon. Friend the Under-Secretary of State will tell me that the Ombudsman is not a court of law or an arm of Government. I accept that. The service relies on sensible working relationships with local authorities. At the same time, it must retain its credibility with the public. That is most important. The present defects in respect of direct access and redress seem to detract slightly from the latter. They can be rectified without damage to the former, and I commend those suggestions to my hon. Friend.

12.15 am
The Under-Secretary of State for the Environment (Mr. Giles Shaw)

I congratulate my hon. Friend the Member for Lichfield and Tamworth (Mr. Heddle) on being fortunate enough to raise this subject and on the way in which he has argued his case that there should be at least two fairly major changes in the way in which the local government Ombudsman works. My hon. Friend will expect me to comment on those two matters and I shall do so. However, let me set the scene concerning the role of the Ombudsman.

My hon. Friend referred to the fact that the local government Ombudsman was set up by part III of the Local Government Act 1974. It provides the citizen who feels aggrieved at the way in which his affairs have been handled with the opportunity to place the facts before an independent person. As my hon. Friend conceded, he is not someone with a judicial role, but an independent person. His title is the Commissioner for Local Administration, but the Ombudsman is rightly his popular name. He can look into the matter impartially to see whether there has been maladministration causing injustice, and, if so, what can be done to remedy it.

I am sure that my hon. Friend would join me in paying tribute to the work of the commission and particularly that of its founder chairman, Baroness Serota, who recently retired, having done much to establish the commission in English public life. My hon. Friend referred to her trenchant foreword to the latest copy of the report for the year ending 31 March 1982. In that report, Lady Serota expresses her appreciation of the way in which most authorities have responded to requests for information, proposals about local settlements and most important of all in readily accepting a Local Ombudsman's judgment that their maladministration has caused injustice to individual complainants and offering satisfactory remedies. I do not want anything that I may say tonight to obscure the excellent work done both by the commission and by the bodies investigated in establishing the local Ombudsman system in this country.

The report shows that 2,706 complaints were referred to the commissioners during the year 1981–82, but, as the report notes, that is a small number compared with the vast amount of administrative action in the course of a year on the part of the authorities within their jurisdiction. Of the 2,500 complaints disposed of during the year, 389 were settled locally, and 279 resulted in the issue of a formal report. Maladministration with injustice was found in 158 cases, but without injustice in 15. The figure for maladministration represents 62 per cent. of the cases in which there was a formal investigation or report, but only 8 per cent. of the total number of complaints considered.

I trust that my hon. Friend will share my gratification in noting that the number of complaints settled locally is steadily increasing.

On the question of remedies for injustice, since the system was established the commissioners have found maladministration in 1,054 cases. By 31 March 1982, a conclusion had been reached in 918 of those cases and the commissioners regarded the outcome as unsatisfactory in 62. This latter figure represents between 6 and 7 per cent. of the cases settled, as my hon. Friend said.

I well understand the feelings of the complainant who takes his case to a commissioner and receives a confirmation that the local authority had mishandled a matter, only to find that the authority is not prepared to put the matter right in the way the commissioner recommends.

The intention behind the legislation is that the commissioners should achieve results by the force of their arguments, the weight of public opinion and the publicity that attaches thereto. On the whole, the figures demonstrate that this pressure works. Having made that point, however, I recognise that this is scarcely a satisfactory answer to those involved in the comparatively few cases where the authority will not accept the recommendation. However, I think that we have to weigh carefully the suggestions which have been made, and to which my hon. Friend referred, for attempting to deal with this situation by changes in the legislation.

To give the commissioners power themselves to enforce their recommendations would raise substantial issues of principle. It would give appointed persons the power to direct the actions of elected bodies. Although that is by no means unique, it is an important step. If that step were contemplated, local authorities would inevitably argue for a right of appeal against the decision. As my hon. Friend conceded, that would lead to increased costs and delay. It would also involve a judicial aura descending on proceedings, which inevitably makes them more formal, probably more difficult to operate, and certainly slower. I do not say that the problems are insuperable, but I think that they are formidable, and certainly they alter the characteristics of the present system which to some extent have flourished on informality and ready access to local authorities.

My hon. Friend's comment that he thought it unlikely that local electors in his constituency would know the councillor with whom they might lodge a complaint is somewhat surprising, because it is surely incumbent on all those who are elected to local authorities to ensure that they are available to constituents who have cause for complaints about the actions of the local authority. I am sure that my hon. Friend carried out that role most assiduously in attending to his constituents' requirements.

The other suggestion which has been argued is that the successful complainant should be able to apply to the courts for compensation if the body complained against fails to provide a remedy. It is true that Justice recommended that course in a report published in 1980, and it is also advocated by the National Consumer Council. My hon. Friend said that there is provision to that effect in the Northern Ireland Commissioner for Complaints Act 1967.

I remind my hon. Friend that there are substantial differences in the context in which local government is currently structured and the powers that local government currently possess in Northern Ireland. My hon. Friend may feel that the context in which complaints of the kind which may most readily come to mind in connection with the activities of the local authority are perhaps better dealt with in a slightly more judicial process than those that are available in this country, where happily the context of both local and national government is significantly different. Therefore, I do not believe that too much weight should be placed on the special provisions made under the Northern Ireland Commissioner for Complaints Act 1967. Whatever that may be, it is certainly a case to quote. My hon. Friend has evoked sympathy by the suggestion that such a route be looked at.

However, we must surely consider carefully what effect such a provision would have on the system as a whole. It would result in much more formality in the investigations. All participants would approach the investigation on the basis that it might lead eventually to proceedings in court. That could lengthen the process and lead to further delay in producing reports and in providing remedies.

May I stress my conviction that the success that has been achieved by the local government Ombudsman primarily rests upon a quick settlement of the issue? Many matters complained of lend themselves readily to quick informal settlement procedures. In that connection, too, the role of the local authorities is probably important. In most instances they can, quite rightly, be the place of first resort. The Ombudsman is frequently the place of last resort.

It is significant that, concerned though they are about these cases where local authorities will not carry out their recommendations, the commissioners have not yet argued that they, or anyone else, should have power to enforce their recommendations. I must tell my hon. Friend, as I think he is aware, that we have no plans to amend the Act on that point. However, that does not mean that we are not fully alive to the difficulties that he has posed.

We have already agreed, when a suitable opportunity occurs, to strengthen the legislation in a minor respect by requiring authorities formally to consider second reports from the local commissioner, just as they have to consider the initial reports. As my right hon. Friend the Minister for Local Government and Environmental Services said in reply to my hon. Friend's written questions on 28 October, the matter is being kept under review.

The essential factor will be the attitude of individual local authorities which are asked by the commissioners to take action. I should hope that in future they will feel able to accept the verdicts of the commissioners even though they may not agree with them in every respect. I welcome the view that my hon. Friend has quoted vis-a-vis Lichfield and Tamworth.

Meanwhile, I am pleased to be able to tell my hon. Friend that the representative body, which is the body set up under the Local Government Act 1974 to represent authorities in these matters, is also worried about the position, and is asking the local authority associations to bring to the attention of local authorities the concern which is felt about those few authorities which fail to comply with the commissioners' recommendations. I hope that the associations will respond to that approach. I am sure that an effective system operating on the present voluntary basis is far preferable to litigation or to some other solution involving compulsion.

My hon. Friend referred to the commission's proposal that the legislation should be amended to enable people with complaints to submit them either through a member of the authority—as the Act now requires—or direct to the local commissioner. That is one of a series of recommendations which the commission has put to the Department. I know that the commission feels strongly that the present requirement for reference of complaints by councillors is an unnecessary obstacle in the path of the citizen requiring help.

However, there are arguments on both sides. Local settlement, as I have already said, plays an important part in the procedures. The legislation was designed to enable the local authority member to play a positive part in dealing with grievances. The representative body is concerned that if the commission's proposal were implemented the role of the elected member, and thus of local authorities in general, would to some extent be undermined. If a member fails—

The Question having been proposed after Ten o'clock and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-eight minutes past Twelve o'clock.