By Nicholas Dobson, Pinsent Masons, Leeds


No council department is an island

Local authorities are complex beasts. And, human nature being what it is, getting the internal communication circuitry working (that is, getting the different parts of the organisation to talk to each other) can be a challenge. An example was highlighted by the House of Lords on 27 February 2008 in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14.



In 2000 a document entitled Framework for the Assessment of Children in Need and their Families was issued jointly by the Department of Health, the Home Office and the then Department for Education and Employment. Paragraph 5.2 of this document indicated that, given the different statutory responsibilities owed to children and young persons by social services and housing authorities, it was important that 'joint protocols are agreed between housing and social services'. Therefore, as Baroness Hale pointed out: '. . .the statutory guidance given to both housing and social services departments stresses the need for joint protocols for assessing the needs of homeless 16- and 17-year olds. This is needed, not only to avoid a young person being passed from pillar to post, but also to ensure that the most appropriate agency takes responsibility for her'.



The case in question concerned a young person who, following family breakdown and involvement with the criminal justice system, had been provided by the housing authority with temporary accommodation from which she was summarily evicted for breach of the rules. While in custody she sought judicial review of the authority's decision on her housing need and also claimed that she was owed duties by the authority under the Children Act 1989. These duties apply in particular to a child 'looked after' by a local authority under section 22(1), that is to say a child in their care or provided with accommodation in the exercise of social services functions. However, in this case there had been no reference to children's services at all and therefore the social services duties did not apply. There was no joint protocol as per the statutory guidance and everyone in the housing department apparently assumed that the matter was 'a housing department responsibility or nothing'.



While authorities are now (under the Local Government and Public Involvement in Health Act 2007) expected to assume 'leadership of place' to achieve cohesion in local public service provision, this case is a salutary reminder of the need also for authorities to ensure they are 'joined-up' internally. For, as the poet John Donne might have advised: 'No Department is an island, entire of itself: it is part of the main.'





Maladministration

Although the statutory regimes are somewhat different, maladministration (or, to put it crudely, public authority cock-up) can affect both local and central government. In the local government corner we have part III of the Local Government Act 1974 (looking very fit for its age, albeit with a few recent facelifts), while central government fields the rather more mature Parliamentary Commissioner Act 1967. Encompassing matters such as delay, incorrect action and failure to provide information or to keep or maintain adequate records, maladministration essentially relates to problems with the efficiency, effectiveness, user-friendliness and reasonableness surrounding public authority decision processes. However, as with judicial review, ombudsmen (local or central commissioners with responsibility for the relevant functions) are concerned with the way in which decisions are reached and not with their merits. The local and central regimes have both essentially been aimed at 'injustice in consequence of maladministration' (although the jurisdiction of the local government ombudsmen has been extended by the Local Government and Public Involvement in Health Act 2007 to take on board alleged or apparent service default or failure).



On 21 February 2007, Justice Bean in R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 had decided (among other things) that decisions of the parliamentary commissioner were binding upon the secretary of state and that his decision to reject a finding of the ombudsman should be quashed. However, on 7 February 2008 the Court of Appeal took the view that while a minister could (contrary to the decision of Justice Bean) 'acting rationally' reject an ombudsman's finding, it is not enough that the minister has reached his own view on rational grounds (R (Bradley and others) v Secretary of State for Work and Pensions [2008] EWCA Civ 36). The minister's decision to reject the ombudsman's finding in favour of his own view must also not be irrational having regard to the legislative intention of the 1967 act. Therefore, the minister must have a proper reason for rejecting the ombudsman's finding. In the circumstances, Justice Bean had been correct to quash the minister's decision.



Bradley concerned a report of the parliamentary commissioner of 15 March 2006 in which the ombudsman had found (among other things) that official information from various government departments and other public bodies about the degree of legal protection concerning accrued pension rights was 'sometimes inaccurate, often incomplete and therefore potentially misleading, and that this constituted maladministration'. In giving judgment, the Court of Appeal noted that the provisions in the 1967 and 1974 acts covering, respectively, central and local government were similar but not identical. For there is no separation of powers in local government analogous to the central government separation between the executive and parliament.



This consequently alters the legal climate affecting how ombudsman reports are treated in the respective sectors. In relation to local government, Lord Donaldson in R v Local Commissioner for Administration ex parte Eastleigh Borough Council [1988] 1 QB 855 had noted the parliamentary intention as being that ombudsmen reports 'should be loyally accepted by the local authorities concerned' in the absence of a successful application for judicial review. However, given the differences in the 1967 and 1974 acts, the Court of Appeal in Bradley found that this did not apply in this way to central government bodies. For instance, there is no publicity requirement in the 1967 act applying to ombudsman reports. Also the 1967 act imposes on the government body concerned none of the duties applicable to local government in section 31(1) of the 1974 act.



So, although in the absence of successful judicial review local authorities must 'loyally accept' ombudsmen findings (if not their recommendations), government ministers are free to reject such findings provided they avoid irrationality in so doing. For the focus of the court must be on the decision to reject rather than the decision of the fact finder. So while Justice Bean had seen 'neither logic nor constitutional principle' in there being differences in the central and local regimes concerning the loyal acceptance of ombudsman findings, the Court of Appeal managed to unearth and highlight the distinctions.





Local Government and Public Involvement in Health Act 2007 - Commencement Orders

Acts of parliament are strange beasts. Although the Queen decrees statutory life at Royal Assent, many of the provisions stay frozen in suspended animation until the secretary of state breathes the magic words of a commencement order. Since the 2007 act is so labyrinthine, local authority and other lawyers with professional need to navigate its occasionally awkward corridors will want to look out for these statutory 'open sesames' as they come up. At the time of writing (4 March 2008) there have been four.



The first (statutory instrument (SI) 2007 No. 3136, made on 31 October 2007) brought into force part 1 and related provisions dealing with structural and boundary change and makes relevant savings. The second (SI 2008 No. 172, issued 30 January 2008) unleashed on 31 January, 31 March and 1 April 2008 various provisions including some relating to the audit commission and the ethical standards regime. The third (SI 2008 No. 337) arrived on 12 February 2008, among other things to bring into effect on 13 February some parish provisions as well as make various amendments and transitional and saving provisions. The fourth (SI 2008 No. 461) hit the delivery room on 19 February 2008 with a brief including the animation on 1 April 2008 of various provisions on patient and public involvement in health and social care. Those who have found these commencement orders life-enhancing are in for a treat. They are likely to be the first of many.





Unitary challenge fails

4 March was black-armband day for Shrewsbury & Atcham and Congleton Councils. For it was then that the Court of Appeal dismissed their attempt to overturn the government's unitary local government proposals for Shropshire and Cheshire. The lethal injections were administered by Lords Justice Carnwath, Richards and Waller in R (Shrewsbury and Atcham BC and another v Secretary of State for communities and Local Government [2008] EWCA Civ 148). While the challenge was valiant and managed to touch a few raw nerves, it ultimately failed to strike a fatal blow. Lord Justice Carnwath, who gave the most substantial judgment, generally supported the reasoning and conclusions at first instance. In the end, he said, he found it 'impossible to avoid the conclusion that parliament has (if only retrospectively) given its stamp of approval to the procedure in this case, and there is no evidence that the authorities have been prejudiced in presenting their opposition'. The judgment was interesting and in its course touched on some complex constitutional issues surrounding the sources of non-statutory governmental power - but unfortunately without determining them.