Governance: Planning and the Public Services Ombudsman for Wales; Conduct

1. Governance: Planning and the Public Services Ombudsman for Wales; Conduct Damien Welfare 2-3 Gray’s Inn Square 17th September 2007

2. 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

3. 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

4. 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)

5. 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.

6. 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)

7. 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))

8. 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

9. PSOW Act, s 7 Ombudsman entitled to investigate: • Alleged maladministration in connection with relevant action (ie discharge of administrative functions) • Alleged failure in a relevant service (ie a service which authority has function to provide) • Alleged failure by authority to provide a relevant service

10. 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)

11. 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

12. Exclusions from remit (Sch 2) • Sch 2: exclusions from remit include: • Crime and security • most staffing matters • housing rents • conduct or instruction given in schools

13. 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)

14. 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)

15. 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”.

16. 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

17. 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)

18. 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

19. 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.

20. 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

21. 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

22. 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

23. Differences and issues under Codes • 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)]

24. 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]

25. 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

26. 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?