By Nicholas Dobson, Pinsent Masons, Leeds


Abuse of power

'An abuse of power of nightmarish proportions.' Such was the comment of the Local Government Ombudsman (LGO), Jerry White, following an investigation into a complaint that Manchester City Council's anti-social behaviour team had used the anti-social behaviour order (ASBO) process in the Crime and Disorder Act 1998 in respect of a resident, without having taken steps to check the truth of the allegations made against her.



The LGO considered it extraordinary that the council in these circumstances would seek an ASBO against the resident 'at first behind her back and then by serving papers on her just days before a court hearing'. Equally extraordinary was that the council had never sought third-party corroboratory evidence, even when some of the allegations (such as loud music) could have been verified by such enquiries. Such an abuse of power should never be allowed to happen again.



The LGO had no doubt that the injustice to the resident was considerable and that her feeling of outrage was entirely justified. And the council's grudging acceptance that the resident should receive some sort of redress came far too late and rubbed salt in the wound. In the circumstances, the LGO recommended that the council pay the resident £2,000, offer her a meeting with a suitable senior officer to discuss her complaint, and also review its practices in the administration of ASBO responsibilities to ensure that such maladministration does not recur.



Manchester City Council does, of course, have a deservedly high reputation for innovative and high-quality work. But the report illustrates how the work of one team can unfortunately register on the corporate seisometer. It is all too easy for those in public bodies to steer off the road and overturn spectacularly on rough ground. It is therefore essential to remember that a public body is required to act fairly when reaching a decision which could adversely affect those subject to it.



In this case, the relevant council team appeared to lose the necessary objectivity and accepted apparently uncorroborated allegations. However, as this case demonstrates, it is important that local and other public bodies exercise considerable care when making decisions that affect the interests of different parties.



Authorities must loyally accept LGO findings

This has been clear since the observations of Lord Donaldson in R v Local Commissioner for Administration ex parte Eastleigh Borough Council [1988] 1 QB 855 that in the absence of a successful application for judicial review and the giving of relief by the court, local authorities should not dispute an LGO's report and should carry out their statutory duties in relation to it.



But on 21 February 2007 in the Administrative Court, in R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242, Mr Justice Bean pointed out that in saying that local authorities should 'loyally accept' an LGO report, Lord Donaldson only intended to refer to findings that maladministration had occurred and not to recommendations. Since the 1974 Act gives the ombudsman no power to make mandatory orders, it would be 'extraordinary if an LGO could do so by the back door in the form of recommendations'.



The bottom line, though, is that unless an LGO has gone well off the rails (in which case judicial review is the remedy), an authority is expected to bite the bullet and (as they used to say) 'do the decent thing'. In the Manchester case, the director of housing accepted the findings and offered her deepest apologies to Mrs X. She said the council has learnt lessons from the way it dealt with Mrs X in 2004 and fully reviewed its procedures in 2005.



Local Government and Public Involvement in Health Bill

But bad news beckons for authorities feeling under the LGO cosh. For Clause 174 of the Local Government and Public Involvement in Health Bill - in its 23 May 2007 manifestation, when a consolidated print travelled from the Commons to the loftier realms of the Lords - proposes expanding the LGO's remit. In addition to maladministration, the LGO will also be able to investigate an alleged or apparent failure in, or failure to, provide a service.



If, as is likely, this becomes law, the LGO will clearly need to be careful not to stray off-piste into areas which are the province of the authority. For it is, of course, the council that has the relevant statutory functions and it is not for ombudsmen, courts or anyone else to purport to exercise them. What will be legitimate, though, is to check out maladministration and service default - that is, poor or no service.



Among the other delights in the Bill is the proposed new statutory regime on local area agreements (LAAs), which are a key government policy for local government. An LAA is an agreement between a local authority and certain partner authorities (see clause 106(2)) approved by the secretary of state and produced when the secretary of state directs (clause 108). The agreement will, among other things, contain local improvement targets - for improvement in the economic, social or environmental well-being of the relevant authority's area - to be drawn up in consultation and co-operation with partner authorities.



The policy surrounding the new LAA process takes on board the concept of so-called 'place shaping', highlighted in the Lyons report issued on 21 March 2007, whereby local functions and services are informed by 'local character and history, community needs and demands, and local politics and leadership'. The government points out that the regime will place more emphasis on area-based service delivery, more local freedom in spending decisions and fewer central targets and reporting systems.



However, while LAAs potentially offer a significant local devolution opportunity - which has been enthusiastically embraced by some senior local authority players - the regime does remain closely regulated by the Secretary of State. Civil servants have pointed out that this is uncharted territory for central government and so therefore something of a voyage of discovery. It remains to be seen how the LAA ship will bear up to the inevitable storms that will blow up on the passage. If all works well, it may well provide a positive blueprint for the future. However, if both sides - central and local - return hurt and disappointed, we could return to the old 'us and them' days when the compulsory competitive tendering flag flew high.



Relevance of codes of practice in legal proceedings

What authority do official publications from government departments have within civil proceedings? If a particular document supports your client's position, the temptation is to parade around the court with it displayed on sandwich boards. But if it does not, a much more discreet approach is likely.



On 5 July in Ellis v Bristol City Council [2007] EWCA Civ 685, the Court of Appeal gave a view on this in the context of health and safety, and in particular of regulation 12(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992. This regulates the condition of floors and provides, among other things, that a floor should not be slippery so as to expose any person to a risk to his health or safety.



The appellant care assistant had appealed against the dismissal of her personal injury damages claim after she had slipped in a pool of urine left by a resident on a corridor floor. The judge at first instance had declined to take into account a code of practice issued by the Health and Safety Commission under section 17 of the Health and Safety at Work etc Act 1974 which gave advice in the material area.



However, Lady Justice Smith thought that the judge was wrong to refuse to have any regard to the code as an aid to construction. She pointed out that it is well established that official publications emanating from the relevant government department can be referred to in civil proceedings as an aid to construction. She also took the view that a code of practice designed to give practical guidance to employers as to how to comply with their duties under statutory regulations can be taken as providing some assistance as to the meaning it was intended the regulations should have. Nevertheless, it is always necessary to treat such guidance with caution. It may be wrong and does not carry the authority of a decision of the courts.



Directors of adult social services

David Behan, director-general of social care at the Department of Health, has written to local authority chief executives to indicate that the government intends to make the requisite statutory order under the Children Act 2004 to require relevant authorities to appoint a director of adult social services by 1 January 2008.



Duty of care and child abuse

Finally, Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446 is worth a quick mention. For here, on 15 May, the Court of Appeal confirmed that the principle established in D v East Berkshire Community Health NHS Trust [2005] 2 All ER 443 - namely that there is no duty of care owed by investigating professionals to parents suspected of child abuse - continues to apply following the Human Rights Act 1998.



As Lord Justice Auld said: 'The public interest in effective and fair investigation and prevention of criminal behaviour has fashioned the common law to protect those suspected of it from malice or bad faith, but not from a well-intentioned but negligent mistake... the basis for that distinction is the need to provide protection to those who have a duty to enforce the law in good faith from the imposition of a duty in negligence that could or might tend to inhibit them in the effective fulfilment of that duty.'



While this will be a blow for those acting for parents and other subject to child abuse investigations, it will be widely welcomed by local authority lawyers and others acting for professionals involved in such investigations.