Eastleigh
R v Local Commissioner for Administration, ex p Eastleigh Borough Council [1988] QB 855
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
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
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
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."
Cited by
- Croydon
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.
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:
- Dyer
Before passing from this part of the case I should mention briefly two authorities with regard to the exercise of the courts' review jurisdiction *627 over local commissioners' reports — Reg. v. Local Commissioner for Administration for the South, the West, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire, Ex parte Eastleigh Borough Council [1988] Q.B. 855 and Reg. v. Commissioner for Local Administration, Ex parte Croydon London Borough Council [1989] 1 All E.R. 1033 .
Only in Ex parte Eastleigh Borough Council [1988] Q.B. 855 , 866, was the jurisdictional issue raised, Lord Donaldson of Lymington M.R. stating: “Let me start with the fact that Parliament has not created a right of appeal against the findings in a local commissioner's report.
As Lord Donaldson of Lymington M.R. said in Ex parte Eastleigh [1988] Q.B. 855 , 867: “… I am very far from encouraging councils to seek judicial review of an ombudsman's report, which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed …” Both those cases were, of course, concerned with judicial review applications by local authorities against whom the local commissioner had reported adversely.
- Balchin (No 1)
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.
- Kirkham (2006)
- Bradley
16.The judge reached the conclusion that subject to exceptions identified by this Court in R v Secretary of State for the Home Department, ex parte Danaei [1997] EWCA Civ 2704 – "namely where the findings are objectively shown to be flawed or irrational, or peripheral, or there is genuine fresh evidence to be considered" – the findings of the Ombudsman were binding on the Secretary of State. His reasoning may, I think, fairly be summarised as follows: (1) The decision of this Court in R v Local Commissioner for Administration, ex parte Eastleigh Borough Council [1988] 1 QB 855 – and, in particular the observations of Lord Donaldson of Lymington, Master of the Rolls, (ibid, 867B-D) – was authority for the proposition that, in the absence of a successful application for judicial review, the findings of a Local Government Ombudsman are binding on the relevant local authority. (2) Although there were differences between the scheme established under Part III of the Local Government Act 1974 - under which a Local Government Ombudsman conducts investigations and make reports - and the scheme established under the Parliamentary Commissioner Act 1967, those differences were not such as to render the proposition established in the Eastleigh case inapplicable to a case under the latter scheme. (3) The proposition established in the Eastleigh case must be read with the observations of this Court in R v Warwickshire County Council, ex parte Powergen plc [1998] EWCA Civ 2280 and in R v Secretary of State for the Home Department, ex parte Danaei [1997] EWCA Civ 2704. Although those observations were made in the context that the fact finding exercise which had preceded the relevant decision – in the first case, a planning inquiry and, in the second case, a hearing before an immigration adjudicator - had been "the exercise of adjudicative powers following an oral adversarial hearing", the different nature of the investigative process under the 1967 Act did not lead to the conclusion that those observations were not in point. The judge's reasons for upholding the first finding of maladministration
52. The judge was persuaded that observations in this Court, in R v Local Commissioner for Administration, ex parte Eastleigh Borough Council [1988] 1 QB 855, provided authority for the view that the Secretary of State was bound by the Ombudsman's findings of maladministration unless he could establish that those findings were, themselves, flawed by irrationality. The claimants – as respondents to the Secretary of State's appeal – seek to uphold that conclusion.
57. The authority appealed from the judge's refusal of relief; and the Local Commissioner cross-appealed from the finding that he had exceeded his powers. The cross-appeal was dismissed (Lord Donaldson of Lymington, Master of the Rolls, dissenting). The authority's appeal was allowed for the reasons given by Lord Donaldson, with whom (on this point) the other members of the Court (Lord Justice Parker and Lord Justice Taylor) agreed. After referring to Mr Justice Nolan's suggestion that the authority had an adequate remedy – in that they could issue a statement disputing the right of the Local Commissioner to make the findings which he had – Lord Donaldson said this ([1988] 1 QB 855, 876A-D): " . . . Such an action would wholly undermine the system of ombudsman's reports and would, in effect, provide for an appeal to the media against his findings. The Parliamentary intention was that reports by ombudsmen should be loyally accepted by the local authorities concerned. This is clear from section 30(4) and (5) which require the local authority to make the local report available for inspection by the public and to advertise this fact, from section 31(1), which requires the local authority to notify the ombudsman of the action which it has taken and proposes to take in the light of this report and from section 31(2), which entitles the ombudsman to make a further report if the local authority's response is not satisfactory. Whilst I am very far from encouraging councils to seek judicial review of an ombudsman's report, which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed, in the absence of a successful application for judicial review and the giving of relief by the court, local authorities should not dispute an ombudsman's report and should carry out their statutory duties in relation to it."
135.By far the most important, in my judgment, is Sir John Chadwick's rejection of the proposition that the decision of this court in R v. Local Commissioner for Administration, ex parte Eastleigh Borough Council [1988] 1 QB 855 (Eastleigh) is authority for the proposition that the Secretary of State is bound by the Parliamentary Ombudsman's findings of maladministration and must treat them as correct unless and until they are quashed in judicial review proceedings. This is, in my judgment, a fundamental point, and in paragraph 5 of her written reply (undated, but received by the court on 14 August 2007, after the conclusion of the argument) the Ombudsman stated: - Before considering the issues raised by the cross-appeal, it should be noted that the Court only needs to consider these issues if it rejects the written submissions of the Ombudsman on the main legal issue. The Ombudsman submits that in considering the Report and what action to take in respect of it, the Secretary of State must proceed on the basis that the Ombudsman's findings of injustice caused by maladministration are correct unless they are quashed in judicial review proceedings. If this is accepted then that is the end of the matter as no application for judicial review has been made seeking to quash the Report. The proper, and indeed it is submitted the only, place for the lawfulness of the Ombudsman's report to be questioned is in judicial review proceedings aimed at quashing that Report.
140.This, in my judgment was what the Eastleigh case was about and why, with respect, Lord Donaldson of Lymington MR was right to hold that in the context of the 1974 Act, the Parliamentary intention was that "reports by ombudsmen should be loyally accepted by the local authorities concerned": - see [1988] 1 QB 855 at 867A-C. As is self-evident, this court in Eastleigh was discussing the work of LGOs and the 1974 Act, and I see nothing in Eastleigh which would mean that a similar consideration applied to reports by the Parliamentary Ombudsman.
- Gallagher
15. It might perhaps be noted at this juncture that in the early history of the legislation there was a significant failure of local authorities to implement the reports of the LGO. At one stage nearly 10 percent of LGO reports were rejected. Currently the rejection rate appears to be about 0.6 percent of all cases. The reduction in the rate of rejection may not be unconnected with the development of the case law in relation to the status of LGO reports. In R v Local Commissioner for Administration for the South, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire ex parte Eastleigh Borough Council [1988] QB 855 (“ Eastleigh”) Lord Donaldson of Lymington MR set out what he considered to be the correct view of the relationship between the local authority and the Ombudsman: “There is the suggestion that the Council should issue a statement disputing the right of the Ombudsman to make his findings and that this would provide the Council with an adequate remedy. Such an action would wholly undermine the system of Ombudsman’s reports and would, in effect, provide for an appeal to the media against his findings. The parliamentary intention was that reports by Ombudsmen should be loyally accepted by the local authorities concerned. This is clear from Section 30, subsection 4 and subsection 5 which require the local authority to make the report available for inspection by the public and to advertise this fact, from Section 31(1) which requires the local authority to notify the Ombudsman of the action which it has taken and proposes to take in the light of his report and from Section 31(2) which entitles the Ombudsman to make a further report if the local authority’s response is not satisfactory.”
- Kirkham & Allt (2016)
- Harlow (2018)
- Kirkham & O’Loughlin (2020)
- Craig (9th edn)
- Harlow & Rawlings (4th edn)