Gallagher
R (Gallagher) v Basildon District Council [2010] EWHC 2824 (Admin)
Parties and outcome
- Claimant
- Paula Gallagher and Mary McCarthy
- Defendant
- Basildon District Council
- Interested party
- Commission for Local Administration in England
- Outcome
- The claimants won: the Council’s challenged decision was quashed.
Citations in this work
Eastleigh
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.”
Bradley
16. This decision, of course, pre-dated the Local Government and Housing Act 1989 which made specific provision for the second report to contain recommendations as to action that should be taken by the authority (see above). Eastleigh thus establishes that the only way to dispute the findings of the LGO is to challenge the report itself. It is common ground that for this purpose the findings include both the finding of maladministration and the finding of injustice arising from the putative maladministration. The statement of Lord Donaldson of Lymington MR has been reaffirmed by Lord Justice Wall in the Court of Appeal (see R (Bradley) v Secretary of State for Work and Pensions [2008] ECWA Civ 36 [2009] QB 114 (“ Bradley”) at 139).