Written evidence from LGSCO[1] (EDE 22)[2]

Public Administration and Constitutional Affairs Committee

The Evolution of Devolution: English Devolution

Executive Summary

1.                  The statutory framework for the LGSCO is the Local Government Act 1974. This legislation is rooted in a mid-twentieth century municipal model. Since then, successive reforms and devolution have resulted in a fragmented and sometimes opaque system. Public routes to redress are not always clear. Some post-1974 arrangements, such as the Mayor of London, are hardwired into the framework, while others are left vague and ambiguous. 

2.                  All new local authorities and bodies should have in place a complaints system which replicates existing rights and jurisdictions, including escalation to the LGSCO. Devolution must not lead to an inadvertent reduction in public accountability or blurring of the right to redress.

3.                  To achieve this, all English local government administrative functions and services should fall clearly and unambiguously within our jurisdiction.

4.                  Our legislation should be updated to enable us to look at so called ‘public interest complaints’. This would significantly improve redress in local government.

5.                  Combined authorities have made mixed progress towards putting in place a complaints system we would judge to meet the needs and rights of their service users.

6.                  The LGSCO provides numerous resources that can and should be used by new bodies when creating their complaints handling processes.

7.                  People should have access to redress when using any local services, irrespective of who they are delivered by. Therefore, we consider it desirable for our jurisdiction to be extended to include where citizens have been let down by their parish or town council.

Answers to questions

2.  What aims and principles should underpin devolution in England?

8.                  The right to redress is fundamentally important in any restructuring or creation of new bodies. Service users and other concerned citizens should be able to access a coherent system of independent, impartial accountability that is easily understood and applied across England.

9.                  Clear pathways must be built into any new arrangements to address public complaints and signpost the right to independent redress through the LGSCO. These should, as a minimum, replicate existing rights and jurisdictions. Devolution must not lead to an inadvertent reduction in public accountability or blurring of the right to redress – particularly where new organisations are being created with which the public will be unfamiliar.

10.             Where devolution results in powers drawn down from central government to local government (for example through Mayors and their leadership of combined Authorities), any potential accountability gap needs to be removed. combined authorities currently draw together responsibility for certain functions that do not clearly fit within our jurisdiction, deriving their statutory authority from a wide range of pre-existing legislation.

11.             A key, underpinning principle should therefore be to create clear and unambiguous lines of public accountability, firstly through local complaints systems, then to the Ombudsman for all local democratic entities (including Metro Mayors, combined authorities and cross-regional bodies).

12.             This should also extend to all the functions the devolved structures deliver or commission. Where services are commissioned or delivered through public-public, public-private or public-third sector arrangements, accountability should remain with the commissioning organisation. This will robustly lock-in accountability through local democracy and then, as an independent backstop, to the Ombudsman

13.             To achieve this, all English local government administrative functions and services should fall clearly and unambiguously within our jurisdiction.

14.             Our experience of over 40 years of local complaints handling, has shown us that ‘getting the basics right’ is fundamentally important when creating new systems and organisations. We know from our casework that if something is done right the first time, local authorities will save time and resources, and it will result in better decisions being made for service users. We would encourage all new bodies to embed good complaints systems, including a culture of welcoming and learning from complaints, and independent redress into their governance arrangements from day one.

15.             Some combined authorities didn’t have full complaints processes in place at their inception. As their remit is now expanding into service areas that are likely to generate complaints – for example around passenger transport, this is likely to cause problems downstream. We will continue to work with these and other newly created bodies to help develop effective complaint handling measures.

16.             Restructuring or creation of new bodies can also represent an opportunity to simplify public access to redress and iron-out any gaps or confusion in the current landscape. We believe that, with the creation or expansion of every new devolved authority, there is the opportunity, and the necessity, to create a simple, integrated complaints system that will be:

1. better for the public
2. better for local accountability and scrutiny, and                         
3. better value for money

17.             All newly created bodies should follow our Principles of complaint handling in combined authorities and devolved settings, including signposting to the LGSCO. 

18.             Limited anecdotal evidence of problems with public understanding or access to redress through the current disjointed system is shown by a desktop review of recent complaints our office has received concerning Combined Authorities.  In 2018 we published Principles of complaint handling in combined authorities and devolved settings. Yet in the 2019 – 2020 financial year we received only 11 complaints registered against Combined Authorities. Although combined authorities are largely strategic in nature this exceptionally low number of complaints suggests problematic accountability routes for increasingly key public services.

19.             In the case of seven of these authorities we received no complaints at all over that year. A recent survey of combined authority websites shows that although most have worked well to create accessible local complaint procedures that refer to us, three have no easily accessible published complaint procedure at all. It is unsurprising therefore we have had no complaints concerning those authorities.

20.             At individual complaint level we have sometimes encountered a lack of clarity and staff awareness at local level about which devolved body is responsible for delivering and accountable for specific public services. Again, evidence from investigation points to public confusion about who does what, with accountability lines split across existing metropolitan boroughs, transport commissioners, combined authorities and sometimes other regional or sub-regional delivery arrangements.

4. To what extent should there be consistency in devolved and local governance within England, and to what extent is asymmetry necessary?

21.             Differing approaches to devolution across England have the potential to create confusion for individual service users, practical difficulties in resolving simple problems and unnecessary complexity for citizens seeking redress.

22.             An example of the current problems we encounter with consistency is our jurisdiction over complaints about the actions of Metro Mayors. The London Mayor, Greater London Authority and combined authorities are explicitly referred to in our jurisdiction. However, to decide whether a Metro Mayor’s actions are in our jurisdiction we need to consider whether the action concerned falls within the specific devolution deal for that particular combined authority.

23.             Another example of avoidable complexity and confusion is illustrated by our jurisdiction over passenger transport authorities. Previously largely outside our remit, these are increasingly being integrated within the structure of Combined Authorities. This would appear to bring them within our jurisdiction but in practice this needs to be considered on a case by case basis. For example, we must look at how the specific body complained about was set up and its legal status, to establish whether it is in jurisdiction for the matter complained about.

24.             For example, Merseytravel (the passenger transport executive for Liverpool city region), despite being an executive body of the Combined Authority, remains legally the Passenger Transport Executive established under the Transport Act 1978 and so outside our jurisdiction.

25.             Conversely Greater Manchester Combined Authority (a body in our jurisdiction) has delegated to Transport for Greater Manchester Committee (also a body in our jurisdiction) the functions of monitoring and overseeing the performance of Transport for Greater Manchester. Therefore a complaint about bus services in Manchester could, depending on the circumstances, be in our jurisdiction, while a complaint about bus services in Merseyside would not be.

26.             Similar ambiguities and uncertainties concern our jurisdiction over other post-20th century evolutionary devolution models, such as fire and rescue authorities (where they combine with police and mayoral structures), and police and crime commissioners. The resultant confusion and uncertainty may dissuade and frustrate citizens seeking redress and adds time and therefore avoidable cost to the complaint system.

27.             An additional example is our inability to consider complaints about services provided by parish and town councils. Our powers to investigate complaints are set out in our governing legislation. Currently we do not have the power to investigate complaints against parish and town councils. 

28.             We can investigate complaints about principal authority services that are delegated to parish/town councils, for example through service-level agreements. This is because those services are provided by the parish council on behalf of the principal authority which therefore remains the body in jurisdiction against which a complaint is registered.

29.             However, awareness of this is likely to be limited among parish councils and those in receipt of their services. They are unlikely to be signposted to the Ombudsman once local complaint resolution is exhausted. The problem will be exacerbated where services are fully devolved, rather than delegated from principal authorities. In such situations legal responsibility no longer remains with the principal authority. We therefore have no legal locus to investigate complaints about those services. A trend towards increasing devolution from the principal authority covers service areas such as, open spaces, sports pitches and street lighting. These are all areas that residents would have a right to raise complaints about with the LGSCO if they were the responsibility of the unitary authority.

30.             The creation of unitary authorities can therefore see residents being left without a right of redress if, as part of that reorganisation, responsibility for services is given to parish and town councils.

31.             We believe, as a matter of principle, that people should have access to redress when using any local service provided by a democratic organisation, irrespective of who they are delivered by. Therefore, we consider it desirable for our jurisdiction to be extended to become as comprehensive as possible, covering services delivered by all tiers of local government. This should include where citizens have been let down by their parish or town council. If this were to be pursued, we believe it needs to be done in a way that is proportionate and careful consideration of the practical implications would be needed, while also avoiding imposing any arbitrary limits on the availability of redress.

32.             The Committee on Standards in Public Life report on Local Government Ethical Standards[3] also drew attention to this issue from the perspective of standards and ethical behaviour. The government has previously consulted on proposals to widen our jurisdiction to include larger town and parish councils.[4]

Proposals for improvement

In addition to our response to the relevant questions above we also have some proposals for changes to our legislation which we believe would improve redress within local government:

1. Updating the Ombudsman’s statutory remit to reflect new structures of local government

33.             The current focus on devolution and in particular the potential Devolution White Paper, represents a welcome opportunity to re-set the LGSCO’s jurisdiction and restore a simple, universal remit that is fit for current and future arrangements. This should be based on the clear and unambiguous lines of public accountability set out in our answer to question 2 above.  It should aim to tidy up current complexity, not expanding our remit but instead making it clear to the public, and to public bodies, what is in jurisdiction. 

34.             We believe this could partly be achieved through a minor amendment to section 25(1) of the 1974 Local Government Act to clarify that actions of Metro Mayors are within our remit.

2. Complaints raised in the public interest

35.             The current limitations around public interest disclosures (including some aspects of “whistleblowing”) create a clear gap in the system of local accountability.  The current pathways to raise concerns are at best fragmented and do not provide a clear route for members of the public, councillors, MPs, or local authority staff to raise concerns about matters of public concern, as opposed to matters that affect them personally and directly.

36.             While the LGSCO is empowered to carry out investigations into most local authority functions, the historic provisions governing who can make a complaint can sometimes be a barrier to investigating concerns of this nature.  This can effectively prevent enquiries into disclosures in which the person is raising a matter of wider public interest, rather than a personal injustice they have suffered.  These rules date from 1974, and do not reflect contemporary public expectations.

37.             LGSCO regularly receives complaints of this type. Recent examples that illustrate the gap include:

1. An enquiry from a councillor alleging her authority was acting in breach of significant statutory requirements relating to its governance and transparency.  She claimed to have raised this matter with the key statutory officers and with other members, but to no avail. Because of the restrictions outlined, it is unlikely LGSCO will be able to investigate her concerns, nor is there any other agency to which we can signpost her. 
2. A referral from the Police asking the Ombudsman to look into allegations of corruption in the planning process made against local elected members, and
3. A complaint from an MP wishing to raise a concern about the loss of local control over a large travellers’ site. 

38.             These are matters about which the public and elected officials would reasonably expect to be able to raise their concerns with an independent body. However, in each instance the people raising the concerns did not have a ‘personal injustice’, meaning LGSCO could not investigate or had to apply a creative approach to bring the complaints even partially within scope. 

39.             This is something that could be changed through a minor amendment to two sections of the Local Government Act 1974, to insert reference to complaints relating to the public interest. It would fill a significant gap in the accountability framework without unnecessary complexity. It could also go some way to filling the assurance gaps highlighted in the recent independent review into local authority audit and financial reporting conducted by Sir Tony Redmond.

40.             Further to this, our current legislation expressly limits our powers to only being able to make recommendations for action to remedy injustice sustained by the person affected and to prevent injustice caused in the future in consequence of similar maladministration and service failure.

41.             Therefore, even though the courts have found this injustice can include “the sense of outrage aroused by unfair or incompetent administration’ even where the Complainant has suffered no actual loss” [R V Parliamentary Commissioner for Administration, ex parte Balchin [1996] EG 166 (CS)],  our power to make recommendations where we find fault is limited by the LGA 1974.

42.             We have investigated cases where identified fault has caused significant injustice to the wider environment – for example by denuding areas of high conservation or ecological value. Despite our findings, we have been constrained by the above legislation from proposing a ‘remedy for the environment’ as this would not be a recommendation that is in respect of injustice to the person affected, or relate to prevention of future injustice.

43.             We are therefore proposing that our legislation should be amended to include an additional clause that would allow us remedy injustice in the wider public interest.

44.             If the public interest amendments set out in this section were adopted, clearly the usual requirements would need to remain in place giving LGSCO discretion not to investigate trivial or vexatious complaints, and requiring any complaints to be made in the first instance to local statutory officers (with discretion for the Ombudsman to intervene early where appropriate). 

45.             We would also need to establish the locus of the person complaining (whether they have some defining characteristic that establishes a clear link with the alleged fault and injustice to them), ensuring we focus on complaints that go well beyond the frustrations of everyday life.

How we can support good complaints handling

46.             Our website contains resources that new authorities can use when setting up a complaints handling process.

47.             We have issued guidance on Good Administrative Practice[5] since 1993. We use this as a benchmark for the standards we expect when we investigate the actions of local authorities. Local authorities should therefore be mindful of this when designing complaints handling and other administrative processes.

48.             We have also published specific guidance for complaints handling aimed at combined authorities or other new structures, our Principles of complaint handling in combined authorities and devolved settings[6]. Drawing on our experience of over 40 years of local complaints handling, we have created a series of principles that local authorities should use when designing a complaints handling system. This document also sets out some ways in which the local authority can work, including the responsibilities of the cabinet in processing learning from complaints.

49.             We have also recently published our new Guidance on Effective Complaint Handling for Local Authorities. This is a practical guide to complaint handling for those who investigate and response to complaints[7]

50.             We have also provided training for over 80 local authorities in 2019/20 in England as part of our role to help improve local complaint handling.  

51.             The complaints we receive are a vital source of information for local authorities, as they help them to understand where services may not be working as well as they could, and give local authorities the opportunity to learn from others.

52.             We publish all our decisions on our website[8] (unless there is a risk of identifying the complainant) to ensure openness and transparency and to allow lessons to be learnt. Where we find fault, we can make recommendations to put things right. Where we find fault with the local authority’s procedures or practices, we will often recommend that the authority introduces changes so the same problem will not happen again. While our recommendations are not legally binding, the vast majority of authorities do comply with them (over 99%). The best councils take an open and mature attitude to complaints and see them as an opportunity to improve for all residents.

53.             In addition, every year, we publish our complaint statistics for all councils in England. This includes information about the complaints and enquiries we received and the decisions we made, broken down for each local authority. We send this data to local authorities in the form of our ‘annual letters’, including any important issues or concerns we might have. We release this data to promote transparency, and local authorities can use it to improve their processes. We have also recently launched an interactive map on our website which sets out our local authority performance data in an accessible format.[9]

54.             We also produce thematic reports which look in detail at individual complaints, or a group of complaints, where we think wider learning can be gained. These are published on our website and publicised widely. These can be used by local authorities to improve or design services.

55.             We would encourage all relevant bodies to use these resources when setting up new processes, going through reorganisation, when creating a new body, or in their day to day work.

56.             We hope this evidence and information will be of use to the inquiry and would welcome an opportunity to elaborate on any of the points in our submission.

November 2020