Wednesday, May 17, 2006

The misuse of discretion

Introduction

The purpose of this posting is to illustrate that many of the Local Government Ombudsman's (LGO) decisions are unlawful because they have misused their discretionary powers.

Background to the LGO’s discretionary power

The Local Government Act 1974 gave the LGO a statutory discretion whether or not to initiate or terminate a complaint of maladministration.

The reasons why the LGO needs discretion is obvious and numerous and I have no argument with that providing the LGO exercise this legally, fairly and for the right reasons.

What is discretion?

One dictionary defines discretion as, ‘the power of a judge or public official to make decisions on various matters based on his/her opinion within general legal guidelines.’

How does the law interpret discretion

Public bodies, including the LGO, must correctly understand and apply the law, including the Human Rights Act, that regulates their decision making powers. Furthermore, an action or decision may be unlawful if the decision maker had no power to make it or exceeded the powers given to him/her. The LGO’s discretion must be used within their express statutory authority.

It is a general maxim of the law that a statutory body cannot extend their statutory powers through the use of discretionary powers.

In addition public bodies also have to be fair. This deals with the process for reaching an unbiased decision and includes the right to a fair hearing. The courts have also recently extended the idea of fairness to prevent abuses of power where public bodies have sought to go back, without sufficient justification, on promises made (called 'legitimate expectations').

When do the LGO misuse their discretionary power.

The LGO misuse their discretionary powers for a number of reasons but none so blatantly offensive than their discretionary use of ‘local settlements'. I believe this is an unlawful exercise of their discretionary power. Therefore, I have decided to focus on that to illustrate my arguments.

The 1974 Local Government Act gives the LGO no express statutory power to implement or use ‘local settlements’. In fact it makes no mention of ‘local settlement’ or settlement at all. When challenged the LGO states that their discretionary power gives them the authority to implement and use ‘local settlements’.

I believe this is wrong for a number of reasons. Firstly, The 1974 Act gives the LGO the express statutory authority to investigate a complaint about injustice caused by maladministration. In addition the 1974 Act also gives the LGO the statutory discretion to investigate or not investigate as they see fit. and to terminate an investigation for any reason.

With such wide discretionary powers, it would appear, superficially at least, that their assertions that ‘their discretionary powers give them the statutory power to use ‘local settlements’ would be difficult to disprove.

However, when you start to look a little deeper you realise that their assertions are just an illusion. They have and have never had the authority, discretionary or otherwise to implement and use ‘local settlements’.

There is no argument that the LGO have the right to terminate an investigation for any reason. In fact I can think of numerous reasons why they would need such a discretionary power. The two parties may have mutually agreed to settle, making the investigation somewhat redundant. It may become obvious during an investigation that the complaint was malicious or vexatious. The public authority may hold their hand up and admit their guilt, again making the investigation somewhat redundant. The list goes on and on.

However, the LGO also terminate an investigation because of what they deviously call a ‘local settlement. The point I want to make here is that a ‘local settlement’ is agreed between the LGO and the Council, the complainant has no say in the matter. So in essence the LGO are creating the reason for terminating an investigation.

The arguments

My first argument is quite simple, the 1974 Local Government Act gives the LGO the statutory discretion to terminate an investigation for any reason but it does not give them the discretionary power to create a reason for terminating an investigation. It would be a different matter if the Council and the Complainant agreed to settle the case.

Therefore, by creating the reason for terminating an investigation they have exceeded their statutory powers. Remember what I stated earlier, an action or decision may be unlawful if the decision maker had no power to make it or exceeded the powers given to him/her.

Now lets turn to fairness. The Council can agree to a ‘local settlement’ or not, however, the complainant has no say in the matter. If the LGO says so they must accept the termination of their complaint through a local settlement.

My second argument is about the unfairness of the discretionary use of ‘local settlements’. The courts have recently extended the idea of fairness to prevent abuses of power where public bodies have sought to go back, without sufficient justification, on promises made (called 'legitimate expectations').

The 1974 Local Government Act states that the LGO can investigate a complaint about injustice caused by maladministration, so I can well understand a complainant having the ‘legitimate expectation’ that the LGO will do exactly that.

The 1974 Local Government Act also give the LGO the discretion to terminate a complainant so I can well understand a complainant having the ‘legitimate expectation’ that their complaint may be terminated.

However, nowhere in the 1974 Local Government Act does it state or imply that the LGO may create the reason for terminating an investigation. In essence, the complainant expects one thing and the LGO give them another.

My third argument is about the LGO fettering their discretion. The LGO has a discretionary comeback procedure. Essentially this states that if no report has been issued and one of the comeback criteria is met than the LGO can comeback on a complaint.

The problem is that the LGO and Council agree a settlement. That saves the LGO the time and trouble of investigating and as a result no report is issued. However, that leaves the complainant free to request comeback on their complaint. So my argument is straight forward, the use of ‘local settlements’ must fetter the LGO discretion when it comes to Comeback.

If a complaint has been ‘locally settled’ how can the LGO comeback on the complaint. The answer is they can’t. They have made a deal with the Council so they cannot comeback on a complaint they have settled. However, they did not settle it with the complainant so the complainant is free to request comeback. A conundrum the LGO overcomes by fettering the use of their discretionary power regarding comeback on a complaint.

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