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31 JAN 2012

R (Adams) v The Commission for Local Administration In England & Ors [2011] EWHC 2972 (Admin) (2011) PLLR 062

Ombudsmen - decision making - relief - costs

The Local Government Ombudsman's decision to discontinue an investigation was unlawful in the narrow sense that there was a failure to provide reasons. However, relief was refused and the other grounds dismissed. The LGO also had no jurisdiction to award costs.

11 November 2011

Administrative Court

Bean J

(1) The claimant, Janet Adams (A), challenged the Local Government Ombudsman's (LGO) decision to discontinue an investigation into a complaint of maladministration against the London Borough of Lambeth (L). A was disabled and was inappropriately housed by L. After almost two years and the intervention of A's solicitors, A was eventually re-housed. A made a complaint of maladministration to the LGO who investigated the complaint and recommended that L pay compensation to A, which L eventually agreed to. The LGO then discontinued the investigation without publishing a report. A argued that (1) the LGO had no power to discontinue an investigation which had been completed; (2) if the LGO did have such a power, the use of the power was unlawful; (3) that there was a failure to provide a statement of reasons; (4) that the investigation had been contrary to the principles of natural justice to conduct separate correspondence with each party (see [23]); and (5) the LGO should have recommended the payment of A's solicitor's costs.

(2) Bean J held that: (1) the investigation was not "complete" for the purposes of section 30 of the Local Government Act 1974 as the matter had not reached the stage where a report could be issued [28]; (2) the use of the power was not unlawful and was consistent with regular practice [30]; (3) the LGO was required by statute to send a statement of reasons but had failed to do so [31]. This was the case even where the claimant had not suffered genuine substantial prejudice [33] - South Bucks District Council v Porter [2004] UKHL 33 distinguished. However, relief would be refused as it would be pointless [33].

(3) Although the LGO had not copied all letters to A that were sent to L there was no unfairness. The LGO was attempting to promote a settlement and was doing so in the legitimate role of a mediator [36].

(4) As for costs, it was far-fetched to read section 31(2B) of the Local Government Act 1974 as requiring the LGO to recommend the payment of A's solicitor's costs [48] - [49]. The guidance on the importance of law firms taking on legal aid work contained in R (E) v Governing Body of JFS (Rev 3) [2009] UKSC 1 and R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 applied to courts, rather than the non-legal context of the LGO [47] - R (Maxwell) v the Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 considered.     

Application allowed in part.

Key paragraphs

[20] - [22] - Local Government Act 1974

[23] - Grounds of challenge

[25] - [30] - discontinuance and "complete" investigations

[31] - [34] - requirement for statement of reasons

[33] - refusal of relief

[35] - [36] - natural justice

[43] - [46] - guidance from JFS, Bahta and Maxwell

Further Reading

Judicial Review: Law & Practice, Chapter 2 Remedies, p76

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