Notes Of Cases
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01547.x |
| Published date | 01 July 1979 |
| Date | 01 July 1979 |
NOTES
OF
CASES
THE
LOCAL
OMBUDSMAN AND CHILDREN
IN
CARE
R.
v.
Local Commissioner for Administration for
the
North and
East Area
of
England, ex
p.
Bradford Metropolitan City Council,’
concerned
a
local authority’s application for prohibition to prevent
a
Local Commissioner investigating four complaints relating to the
authofity’s action in taking two young children into care. The
children’s mother had joined the father in London, leaving the
children in Bradford with
a
ndghbour. When the mother returned
some weeks later, she found that the authority had taken the child-
ren into care and placed them with foster parents. With the assist-
ance of the father’s father (whom she later married), the mother
complained first to
a
local councillor and then, once the councillor
had investigated and ‘refused
to
refer the matter himself, to the
Commission for Local Administration. Four complaints were made
:
the authority failed in their duty under section
1
of the Children
and Young Persons Act
1963;
a
senior social worker said that she
would strongly oppose the mother having the children back as the
girl suffered from fits but later said that she did not
so
suffer; the
children were separated against the mother’s wishes and assigned
to different foster parents; the senior social worker said that she
would have the children adopted without the mother’s consent and
that they were placed with prospective adopters without consulting
the mother.
May
J.
held that the Local Commissioner could investigate the
first, second and fourth complaints, but that the third was outside his
jurisdiction, being
a
challenge to the merits of the decision rather
than an allegation
of
maladministration. The Court of Appeal dis-
missed the authority’s appeal and allowed the Commissioner’s
cross-appeal on the matter of the third complaint. The result was,
therefore. that the Commissioner was permitted to investigate all
four allegations.
When is
a
Commissioner properly seized of a complaint such
that he may consider whether to investigate? Section
26
(2)
of the
Local Government Act
1974
prov,ides: “A complaint shall not be
entertained under this part
of
the Act unless (a) it is made in
writing to
a
member of the authority, or of any other authority
concerned, specifying the action alleged to constitute maladministra-
tion..
. .”
It was argued by the authority that a complaint must
specify the particular maladministration which had led to Enjustice
to the complainant, that the form of the third complaint did not
meet this requirement, and therefore that the Commissioner was not
properly seized of the matter and could not exercise his discretion
to investigate. Sir David Cairns, dissenting from the majority.
1
[1979]
2
W.L.R.
1.
447
448
THE
MODERN
LAW
REVIEW
[Vol.
42
agreed:
“If
it had been intended to allow
a
complaint which did
not make it clear
in
what way there was maladministration, the
appropriate language for subsection
2
(a)
would have been
‘.
.
.specifying the action in connection with which there was
maladministration.’
”
a
It is true to say that Commissioners’ investigations based on such
non-specific complaints have presented local authorities with con-
siderable difficulties.g
To
accept the authority’s argument, however,
would have raised
a
practical problem. How could the complainant
know what was the nature of the maladministration from which
injustice ensued?
As
Lord Denning
M.R.
said:
“
In the nature
of
things
a
complainant only knows
or
feels that he has suffered
injustice. He cannot know what was the cause of the injustice
. . .
It would be putting too heavy
a
burden on the complainant to
make him specify the maladministration: since he has no knowl-
edge of what took place behind the closed doors of the adminis-
trators’ offices.”
To
resolve the statutory construction difficulty,
he adopted
a
purposive interpretation
:
“
Expanded fully. section
26
(2)
(a)
should read
‘
specifying the action taken by
or
on behalf
of the authority in connection with which the complainants com-
plain there was maladministration.’
”
This conclusion may also be supported
on
grounds
of
policy.
Harlow suggests, in relation to the Parliamentary Commissioner,
that
‘‘
the individual complaint is primarily
a
mechanism which
draws attention
to
more general administrative deficiencies.” To
limit the Commissioners to the investigation of allegations specified
in complaints would have a most restrictive effect
on
their ability
to bring about greater administrative efficiency. The problem dis-
cussed here
is
central to an understanding of the role of the various
Ombudsmen.
If
the Court
of
Appeal had accepted the authority’s
arguments, the Local Commissioners’ role would have become more
like that of a satisfier of small claims than an important agency
of
administrative reform.’
A
further important issue relates to the concept of
“
maladminis-
tration.” Although the precise meaning
of
the term has not been
agreed,
it
has generally been taken to refer to the procedure by
which an administrative decision is made or put into operation.
rather than to the merits of the particular decision itself. The
judgments of Lord Denning
M.R.
and Eveleigh
L.J.
tend to con-
firm this view. Lord Denning
M.R.
felt able to refer to Professor
Wade’s book, which quotes the
“
Crossman catalogue
”
from the
a
At
p.
21
B-C.
J
See N. Lewis and
B.
Qateshlil,
The
Commission
/or Local Adminisrrarion:
R
4
At
p. 22B-C; see also the observations
of
the Northern Ireland
Commissioner
6
“
Ombudsmen in Search
of
a
Role
”
(1978)
41
M.L.R.
446,
452.
7
For
tho Commission’s impact on local authority procedures during the
first
year
of
its work,
see
Lewis and Gateshill,
op.
cif.,
at pp.
51
el
seq.
Preliminary Appraisal
at pp. 42-44.
in his Annual Report
for
1971,
quoted
in
Lewls and Gateshill,
op.
cir.
at p. 42.
6
At
p.
22E-€7.
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