Bradford

R v Local Commissioner for Administration, ex p Bradford Metropolitan City Council [1979] QB 287

Case report (vLex)

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Parties and outcome

Claimant

Bradford Metropolitan City Council (appellant)

Defendant

Local Commissioner for Administration for the North and East Area of England (respondent and cross-appellant)

Outcome

The Commissioner won: the Council’s appeal was dismissed and the cross-appeal allowed. The Commissioner was declared entitled to investigate all four complaints.

Cited by

• Eastleigh

  The action referred to in paragraph 29 consisted of exposing that part of the sewer which lay between two manholes and adjusting the pipe work to eliminate the undulation. The ombudsman's cross-appeal Section 34(3) This subsection is in the following terms: "It is hereby declared that nothing in this Part of this Act authorises or requires a Local Commissioner to question the merits of a decision taken without maladministration by an authority in the exercise of a discretion vested in that authority." "Maladministration" is not defined in the Act, but its meaning was considered in Reg. v. Local Commissioner for Administration for the North and East Area of England, Ex parte Bradford Metropolitan City Council [1979] Q.B. 287 . All three judges (Lord Denning M.R., at P. 311, Eveleigh L.J., at p. 314, and Sir David Cairns, at p. 319) expressed themselves differently, but in substance each was saying the same thing, namely, that administration and maladministration in the context of the work of a local authority is concerned with the manner in which decisions by the authority are reached and the manner in which they are or are not implemented. Administration and maladministration have nothing to do with the nature, quality or reasonableness of the decision itself. The key to this part of the cross-appeal lies in identifying the policy decision of the council in relation to the inspection of drains. This was, as I have stated, to inspect at four of the more important of nine stages in construction. It did not condescend to the nature of the inspections. These houses were built in 1977 and that was the policy in that year. In 1980 and 1984 the policy was modified, so that not all houses were inspected, but that is immaterial for present purposes. That being the 1977 policy of the council, it was for its building control officers to implement that policy as a matter of administration. Nolan J. read paragraph 30 of the ombudsman's report, which I have set out in full, as questioning the merits of that policy. I do not so read it. I can best illustrate my understanding of that paragraph by adding words which render explicit what, in my judgment, is implicit:

  Section 26(1) This subsection is in the following terms: "Subject to the provisions of this Part of this Act where a written complaint is made by or on behalf of a member of the public who claims to have sustained injustice in consequence of maladministration in connection with action taken by or on behalf of an authority to which this Part of this Act applies, being action taken in the exercise of administrative functions of that authority, a Local Commissioner may investigate that complaint." Clearly this subsection does not prevent the ombudsman from investigating a complaint of maladministration which prima facie may *865 have led the complainant to sustain consequential injustice (see the Bradford Council case [1979] Q.B. 287 ), but it does mean that he cannot report adversely upon an authority unless his investigation reveals not only maladministration, but injustice to the complainant sustained as a consequence of that maladministration.

  He can therefore examine or investigate a decision, as Eveleigh L.J. said in Reg. v. Local Commissioner for Administration for the North and East Area of England, Ex parte Bradford Metropolitan City Council [1979] Q.B. 287 , 316-317: "If the commissioner carries out his investigation and in the course of it comes personally to the conclusion that a decision was wrongly taken, but is unable to point to any maladministration other than the decision itself, he is prevented by section 34(3) from questioning the decision."

• Croydon

  p 1043

  Their meaning was considered in R v Local Comr for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council [1979] 2 All ER 881, [1979] QB 287 and recently has again been considered by the Court of Appeal in R v Comr for Local Administration, ex p Eastleigh BC [1988] 3 All ER 151, [1988] QB 855.

  p 1043

  Parker LJ in the Eastleigh case [1988] 3 All ER 151 at 158, [1988] QB 855 at 868 cited with approval a passage from the judgment of Eveleigh LJ in the Bradford case ([1979] 2 All ER 881 at 902, [1979] QB 287 at 316) in which Eveleigh LJ said:

• Balchin (No 1)

  Paragraph 13

  13. The meaning of maladministration, both in this Act and in the Local Government Act 1974 (which set up the parallel Local Commissioner) has been considered by the Court of Appeal in R v Local Commissioner for Administration for the North and East area of England, ex parte Bradford Metropolitan City Council [1979] QB 287. Both the Court of Appeal (Sir David Cairns dubitante) and the textbooks on public law have drawn upon the 'Crossman catalogue' offered to Parliament during the passage of the 1967 Act by the then Lord President of the Council. It is accordingly accepted that maladministration includes bias, neglect, inattention, delay, incompetence, inaptitude [1], perversity, turpitude and arbitrariness in reaching a decision or exercising a discretion, but that it has nothing to do with the intrinsic merits of the decision itself: see R v Commissioner for Local Administration ex parte Eastleigh Borough Council [1988] QB 853, 863.

• Liverpool

  Paragraph 3

  3. Maladministration is not defined by statute. Lord Denning MR adopted (see R -v- Local Commissioner for Administration for the North and North East Area of England ex parte Bradford Metropolitan City Council [1979] 1 QB 287 at 311H) a passage from the 4th Edition of Professor Wade's book on Administrative Law: "It will cover `bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on'. It `would be a long and interesting list', clearly open- ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself. It follows that `discretionary decision, properly exercised which the complainant dislikes but cannot fault the manner in which it was taken, is excluded': see Hansard, 734 HC Deb, col. 51. In other words, if there is no maladministration, the ombudsman may not question any decision taken by the authorities. He must not go into the merits of it or intimate any view as to whether it was right or wrong. This is explicitly declared in section 34(3) of the Act of 1974. He can inquire whether there was maladministration or not. If he finds none, he must go no further. If he finds it, he can go on and inquire whether any person has suffered injustice thereby."

  Paragraph 47

  47. In my view the answer to that criticism is that already given by Lord Justice Henry. Although there is a substantial element of overlap between maladministration and unlawful conduct in the context of local government, the concepts are not synonymous. There will be cases of maladministration which do not involve unlawful conduct. As Lord Denning, Master of the Rolls, observed in R v Local Commissioner for Administration for the North and North East Area of England, ex parte Bradford Metropolitan City Council [1979] 1 QB 287, at page 311H - quoting from the debate on the Bill which was enacted as the Parliamentary Commissioner Act 1967 - "It [maladministration] will cover `bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on.' It `would be a long and interesting list' clearly open-ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself." So there is no reason in principle why the considerations which determine whether there has been maladministration should, necessarily, be the same as those which determine whether there has been unlawful conduct. The Commissioner's power is to investigate and report on maladministration; not to determine whether conduct has been unlawful. So there is no reason why, when exercising the power to investigate and report, (which has been conferred on him by the 1974 Act) he should, necessarily, be constrained by the legal principles which would be applicable if he were carrying out the different task (for which he has no mandate) of determining whether conduct has been unlawful.

• Turpin

  Paragraph 33

  33. The meaning of maladministration has been considered in R v Local Commissioner for Administration, ex parte Bradford Metropolitan City Council [1979] QB 287 . Lord Denning in that case, at page 311, stated that parliament had deliberately left it to the Ombudsman to interpret the word as best he could but indicated that it would cover “bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on”.

• Kirkham (2006)
• Miller

  Paragraph 72

  72. The breadth of the ombudsman's discretion to determine the manner in which investigations are carried out is well established. In R v Local Commissioner for Administration ex p Bradford CC [1979] QB 287 per Lord Denning MR at 311 it was held that Parliament had "deliberately left it to the ombudsman himself to interpret … as best he could: and to do it by building up a body of case law on the subject". Whether the subject matter of the investigation is maladministration or service failure that principle remains sound. It follows that the court can only interfere with the standard adopted if it is Wednesbury unreasonable. Whether a standard lacks clarity, is incapable of being readily discerned or tends to produce inconsistent decisions are issues relevant to whether the standard is unreasonable.

• Morris (2019)

  Paragraph 28

  28. The Courts have considered in detail th e broad discretionary powers given to the Defendant and other similar ombudsmen, and the extent of the court’s supervisory jurisdiction, beginning with R v Local Commissioner ex p Bradford Council [1979] 1 QB 287, at 311C per Lord Denning.

• Kirkham & O’Loughlin (2020)
• Craig (9th edn)
• Harlow & Rawlings (4th edn)