Eastleigh

R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855

Case report (vLex)

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Parties and outcome

Claimant
Eastleigh Borough Council (appellant)
Defendant
Local Commissioner for Administration for the South, the West, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire (respondent and cross-appellant)
Outcome
The Council won: its appeal was allowed and the Commissioner’s cross-appeal was dismissed.

Citations in this work

Bradford

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

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:

Bradford

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

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.

Bradford

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

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."

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