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rudeness (though that is a matter of degree);
unwillingness to treat the complainant as a person with rights;
refusal to answer reasonable questions;
neglecting to inform a complainant on request of his or her rights or entitlement;
knowingly giving advice which is misleading or inadequate;
ignoring valid advice or overruling considerations which would produce an uncomfortable
result for the overruler;
offering no redress or manifestly disproportionate redress;
showing bias whether because of colour, sex, or any other grounds;
omission to notify those who thereby lose a right of appeal;
refusal to inform adequately of the right of appeal;
faulty procedures;
failure by management to monitor compliance with adequate procedures;
cavalier disregard of guidance which is intended to be followed in the interest of equitable
treatment of those who use a service;
partiality; and
failure to mitigate the effects of rigid adherence to the letter of the law where that produces
manifestly inequitable treatment.

Maladministration has ˜nothing to do with the nature, quality or reason-
ableness of the decision itself ™, per Lord Donaldson MR in R v Local
Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855,
863. It has been said that ˜maladministration comes in many di¬erent guises™
and that while it may overlap with unlawful conduct, they are not synonymous:
Henry LJ in R v Local Commissioner for Administration, ex p Liverpool City
Council [2001] 1 All ER 462, [17]. The Ombudsman cannot investigate if the
complaint is simply that a department™s decision a¬ecting the complainant was
wrong, if there is no suggestion that the complainant™s case was mishandled in
some way, as by disregarding relevant facts, drawing unjusti¬ed conclusions,
mislaying information, giving inaccurate or misleading advice “ ˜and so on™.
626 British Government and the Constitution


Injustice “ also unde¬ned “ may be experienced as hardship, or ¬nancial loss,
or the forfeiture of some bene¬t, or simply as distress, anxiety or inconvenience,
or ˜the sense of outrage aroused by unfair or incompetent administration™
(Sedley J in R v Parliamentary Commissioner for Administration, ex p Balchin
[1996] EWHC Admin 152 at [15]“[16].
The investigatory jurisdiction of the Parliamentary Ombudsman extends to
most kinds of administrative action by over 300 government departments and
non-departmental public bodies. There are some notable exclusions, such as
public service personnel matters, contractual or other commercial transactions
and decisions from which there is a right of appeal to a tribunal or a remedy in a
court of law (see further section 5 and Schedule 3 to the 1967 Act). Contracted-
out functions performed on behalf of listed departments remain subject to the
Ombudsman™s jurisdiction. (See the Deregulation and Contracting Out Act
1994, section 72.)
The Ombudsman has wide powers for carrying out her investigations and
may adopt whatever investigative procedure she considers appropriate in the
circumstances of the case. She has the same powers as the High Court to compel
witnesses to attend for examination and can require any minister or civil servant
to provide relevant information or documents. (But material relating to the
proceedings of the Cabinet and its committees may be withheld from her.) The
Ombudsman is subject to the ordinary supervisory jurisdiction of the courts
and her ¬ndings may be set aside if she should exceed her statutory powers, act
unlawfully or fail to consider a relevant factor (see eg, R v Parliamentary
Commissioner for Administration, ex p Dyer [1994] 1 WLR 621 and comment by
Marsh [1994] PL 347); and R v Parliamentary Commissioner for Administration,
ex p Balchin (No 2) [1999] EWHC Admin 484, (1999) 2 LGLR 87 and comment
by Giddings [2000] PL 201).
If the Ombudsman ¬nds injustice caused by maladministration she may rec-
ommend to the department concerned whatever action she thinks should be
taken by way of redress, but has no power of enforcement. Departments nor-
mally comply with the Ombudsman™s recommendations, although compliance
has occasionally been grudging and exceptionally has been refused. Redress may
take the form of an ex gratia payment, so as to restore the complainant to the
position in which he or she would have been had the maladministration not
occurred, or an apology, or the reversal of the decision of which complaint was
made. A department may also revise its procedures or standing instructions for
the future. If it appears to the Ombudsman that an injustice will not be reme-
died she may make a special report on the case to Parliament (s 10(3) of the 1967
Act). A demurring department is unlikely to defy the Ombudsman™s recom-
mendation if she is supported by the select committee.
Probably the most complex and wide-ranging investigation so far undertaken
by the Parliamentary Ombudsman was that of 1988“89 into the Department of
Trade and Industry™s handling of matters relating to the Barlow Clowes group
of companies. The collapse of Barlow Clowes resulted in considerable loss to
627 Parliament and the responsibility of government


many investors, who made complaints about the Department™s exercise of its
regulatory functions in relation to the investment business of the companies. In
his report (The Barlow Clowes A¬air, HC 76 of 1989“90) the Ombudsman
identi¬ed ¬ve areas in which there had been, in his view, ˜signi¬cant maladmin-
istration™ by the Department resulting in injustice to investors ˜which ought to
be remedied by the payment of compensation™. The Government disagreed with
a number of the Ombudsman™s speci¬c ¬ndings but recognised that the events
had caused great hardship and agreed, without admission of fault or liability, to
make substantial payments to investors who had su¬ered loss. (See Observations
by the Government on the Ombudsman™s report, HC 99 of 1989“90 and see
further Gregory and Drewry, ˜Barlow Clowes and the Ombudsman™ [1991] PL
192, 408.)


The Channel Tunnel Rail Link: exceptional hardship
In February 1995, for only the second time in the history of the o¬ce, the
Ombudsman laid a special report before each House of Parliament (under
section 10(3) of the Parliamentary Commissioner Act 1967) stating his view
that injustice had been caused to persons in consequence of maladministration
and had not been remedied (Fifth Report, HC 193 of 1994“95). Complaints had
been forwarded by MPs to the Ombudsman from householders who had been
unable to sell their properties as a result of the blight caused by prolonged delay
in settling the route of the Channel Tunnel rail link. Existing compensation
schemes did not cover a number of persons who, as the Ombudsman found,
had su¬ered ˜exceptional or extreme hardship™ in consequence of the delay. He
concluded that the Department of Transport, in failing to consider ex gratia
redress for householders who had been a¬ected in this extreme degree, had been
guilty of maladministration resulting in injustice. The Department did not
agree and made no o¬er of redress.
The Select Committee on the Parliamentary Commissioner acted upon
the Ombudsman™s special report in taking evidence from the Ombudsman
and the Department and, in line with the principle that maladministration
included ˜a failure to mitigate the e¬ects of rigid adherence to the letter of the
law where that produces manifestly inequitable treatment™, agreed with the
Ombudsman that maladministration causing injustice had occurred. The com-
mittee recommended that the Department should reconsider the payment
of compensation to those who had su¬ered exceptional hardship. If the
Department should remain obdurate, they would recommend ˜that as a matter
of urgency a debate on this matter be held on the ¬‚oor of the House™ (Select
Committee on the Parliamentary Commissioner, Sixth Report, HC 270 of
1994“95). While continuing to deny that maladministration had occurred,
the Department then agreed to reconsider the question of redress ˜out of respect
for the PCA Select Committee and the o¬ce of the Parliamentary Com-
missioner™. The Department subsequently formulated a scheme for identifying
628 British Government and the Constitution


and compensating those who had su¬ered exceptional hardship (Select
Committee on the Parliamentary Commissioner, Second Report, HC 453 of
1996“97; Annual Report of the Parliamentary Ombudsman, HC 845 of 1997“98,
para 5.10. See also James and Longley [1996] PL 38.)


A Debt of Honour; Trusting in the Pension Promise
In the 2005“06 parliamentary session the Ombudsman twice reported to
Parliament under section 10(3) of the Parliamentary Commissioner Act 1967
that injustice had been caused by maladministration and that the Government
did not intend to remedy it.
In A Debt of Honour (HC 324) the Ombudsman dealt with a complaint about
the administration by the Ministry of Defence of a scheme for making ex gratia
payments to (among others) British civilians who had been interned and ill-
treated by the Japanese during the Second World War. The complainant had
been denied compensation on the ground that the scheme, as varied after its
introduction, was limited to British claimants born in the United Kingdom or
with a parent or grandparent who had been born there. The Ombudsman
found that there had been maladministration in the manner in which the
scheme was brought into e¬ect (with the criteria for eligibility left unclear) and
also by reason of inconsistency in its operation. Maladministration on the
¬rst ground was admitted by the Government, which made due apology and
modest ¬nancial recompense, but the ¬nding of inconsistency was initially
rejected. The Ombudsman™s section 10(3) report was considered by the Public
Administration Committee, which concluded that there was ˜ample evidence
to support the Ombudsman™s ¬nding of maladministration™ (First Report, HC
735, para 37); at the same time the Ministry™s further investigations led it to
acknowledge that there had indeed been inconsistencies in the operation of
the scheme and that errors had been made. In the result the Minister agreed to
make changes to the eligibility criteria and to ensure that the new criteria would
be properly introduced and applied.
From 2004 to 2006 the Ombudsman investigated the actions of several gov-
ernment bodies which had led to the referral by MPs of over 200 complaints to
her o¬ce. These related to certain ¬nal salary occupational pension schemes
which had been wound up with insu¬cient assets to pay the promised bene¬ts,
so that scheme members su¬ered substantial ¬nancial losses. In Trusting in the
Pensions Promise (HC 984) the Ombudsman found that the Government had,
in promoting such schemes, provided inaccurate, incomplete, unclear and
inconsistent information which had misled participants as to the risks involved.
Having concluded that there had been maladministration resulting in injustice,
the Ombudsman recommended that the Government should consider appro-
priate arrangements for the restoration of bene¬ts to those who had su¬ered
loss. The Government rejected the Ombudsman™s ¬nding of maladministration
and her principal recommendations, upon which she laid her report before
629 Parliament and the responsibility of government


Parliament under section 10(3) of the 1967 Act. The Public Administration
Committee supported the Ombudsman™s conclusions (Sixth Report, HC 1081),
saying:

In future, we hope that the Government will engage with the Ombudsman positively, and
start from the presumption that it is her job to determine whether or not maladministration
has occurred, not its own.

It may be noted, as regards both of the Ombudsman™s inquiries considered
above, that there have been parallel proceedings for judicial review, directed not
to the question of maladministration but to the legality of decisions taken by the
departments concerned.
The number of complaints received by the Ombudsman is not great, but has
increased in recent years. In the 2005“06 session, 1,964 cases were accepted for
investigation. A signi¬cant number of complaints referred to the Ombudsman
fall outside her jurisdiction (about 1,000 in 2005“06); still more are declined
after initial consideration, for instance, if there is no evidence of maladminis-
tration or no worthwhile outcome is likely. Many complaints are resolved infor-
mally after the Ombudsman has made inquiries of the department or public
body concerned. If the matter is not concluded in any of these ways a full inves-
tigation is undertaken. A resolution of the complaint may be achieved in the
course of this; otherwise the investigation proceeds until concluded by a formal
investigation report sent to the referring MP and the department or public
body. In 2005“06, 54 per cent of complaints investigated were fully or partly
upheld.
The Department for Work and Pensions with its agencies and HM Revenue
and Customs are major sources of complaints, large numbers of individuals
being directly a¬ected by the operations of these departments.
As well as securing redress for victims of maladministration, the
Ombudsman has the objective of enhancing standards of service to the public
by bringing about improvements in departmental procedures and decision-
making. The Government has responded by issuing a guidance document for
civil servants, The Ombudsman in Your Files (rev edn 1997), which seeks to
encourage good practice and an avoidance of conduct that may lead to com-
plaints. The Ombudsman is at present developing a set of Principles of Good
Administration or ˜broad statements of what the Ombudsman believes bodies
within our jurisdiction should be doing to deliver good administration and
good customer service™. It is hoped that the Principles will help ˜to shape a
common understanding of what constitutes good practice in public adminis-
tration™. The draft Principles can be found at www.ombudsman.org.uk.
Separate Ombudsman schemes are established in Scotland, Wales and
Northern Ireland. (See the Scottish Public Services Ombudsman Act 2002, the
Public Services Ombudsman (Wales) Act 2005 and the following Orders
in Council relating to the Northern Ireland Ombudsman: the Ombudsman
630 British Government and the Constitution


(Northern Ireland) Order 1996, SI 1996/1298 and the Commissioner for
Complaints (Northern Ireland) Order 1996, SI 1996/1297.) These schemes are
not quali¬ed by a parliamentary or assembly ˜¬lter™ and complaints may be
taken directly to the Ombudsman.
The various Parliamentary and Local Government Ombudsmen in England
became concerned that the system under which they worked had become
in¬‚exible and outmoded, presenting particular di¬culties for any person
whose complaint involved more than one sector of public administration (see
the Annual Report of the Parliamentary Ombudsman, HC 593 of 1999“00). In
1998 they made a joint proposal to the Government that there should be a com-
prehensive review of the organisation of public sector Ombudsmen in England.
The review was undertaken by the Cabinet O¬ce and its report, Review of the
Public Sector Ombudsmen in England (the Collcutt Report), was published in
April 2000. The principal recommendation of the Collcutt Review was that a
new, collegiate Commission should be established which would combine the
o¬ces of the Parliamentary Ombudsman, the Health Service Commissioner for
England and the Commissioners for Local Administration for England. There
would be direct public access to the Commission, providing a single ˜gateway™
for all complaints within the Ombudsmen™s jurisdiction. The individual
Ombudsmen would be appointed ˜as o¬ce-holders with a personal jurisdiction
across the entire work of the new Commission™, although by internal arrange-
ment each Ombudsman would deal with a particular group of bodies under
jurisdiction.
The Government accepted the Colcutt Review™s main recommendations and
was supported by the Parliamentary and Health Service Ombudsman, Ann
Abraham, in saying that the constraints in existing legislation ˜prevented the
Ombudsman from providing a seamless, accessible and responsive service™.
(See Reform of Public Sector Ombudsmen Services in England (2005), para 28.)
In her Annual Report for 2005“06, HC 1363, she emphasised ˜the need to
reform the legislative framework governing working arrangements between
Ombudsmen to allow them to publish joint reports and share information™
and looked forward to the introduction of legislation which would achieve this
(pp 5, 21).


(b) Legislation
Legislation as a governmental function was considered in chapter 7; what
follows should be read in the light of the material considered there.

(i) Primary legislation
The passage of government bills through Parliament is a process in part collab-
orative and in part adversarial, the mixture depending on the extent to which
the bill arouses party controversy. The parliamentary process not only provides
the formal legitimation of government legislation but allows for the delivery
631 Parliament and the responsibility of government


of an attack on the principle of the bill “ mainly at second reading “ and for
argument on the detail of its provisions “ mainly at the committee stage.

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