Local Government and Public Involvement in Health Act 2007 Explanatory Notes

Part 9: the Commission for Local Administration in England

Introduction

415.The Commission for Local Administration, more commonly known as the Local Government Ombudsmen, is an independent body established under Part 3 of the Local Government Act 1974. The Commission comprises a body of Commissioners, consisting of the Local Commissioners themselves, any advisory Commissioners who have been appointed, and the Parliamentary Commissioner for Administration.

416.The Local Commissioners may conduct investigations into complaints from members of the public that they have sustained injustice in consequence of maladministration by certain authorities. The Local Commissioners may also give advice and guidance to authorities on good administrative practice. The Local Commissioners’ jurisdiction covers all local authorities (excluding town and parish councils); police authorities; education appeal panels; and a range of other bodies providing local public services.

417.Part 9 of this Act clarifies and updates the Local Commissioners’ jurisdiction to reflect modern means of local service delivery. It also clarifies and modifies their powers of investigation. It provides for changes to the appointment and removal of the Commissioners, greater flexibility in how complainants access the Commissioners’ service, and wider powers for the Commissioners to delegate their functions. It also amends the funding and reporting requirements on the Commission, and clarifies the Commissioners’ power to issue and publish reports and statements.

Section 168: Appointment and removal of Commissioners

418.This section amends section 23(4) of the Local Government Act 1974 to remove the requirement for the Secretary of State to consult with representatives of authorities in England in advance of making recommendations to the Crown for the appointment of new Commissioners (including advisory Commissioners).

419.New provisions are substituted for section 23(5) of the Local Government Act 1974, which provided for appointments as Commissioners to be full-time or part-time. The new subsection (5) makes it clear that a Commissioner’s terms of appointment can be changed with his or her consent from full-time to part-time, or vice versa. New subsections (5A), (5B) and (6A) provide for Commissioners to be appointed for a non-renewable fixed term of not more than seven years.

420.Section 23(6) is amended to remove the requirement for the Commissioner to vacate office at the age of 65. This brings the position of the Commissioners into line with the position of other similar office-holders.

Section 169: Responsibilities of Commissioners

421.Section 23 of the Local Government Act 1974 provides that each Local Commissioner must be given responsibility for cases relating to a particular geographic area or areas. Section 169 amends section 23 to give the Commission greater flexibility to allocate matters between the Local Commissioners.

Section 170: Annual reports

422.The requirement for the Commission to prepare an annual report is amended so that, in future, the Commission will be required to lay a copy of the report before Parliament. This section also repeals the requirement for the Commission to give authorities and bodies representing authorities the opportunity to comment on the report and on the reports of individual Commissioners.

Section 171: Power to investigate

423.This section inserts a new section 24A into the Local Government Act 1974, which sets out the circumstances in which a Local Commissioner may investigate a matter. The Local Commissioners will continue to have a wide discretion to decide whether to initiate, continue or discontinue an investigation. In particular, section 24A(7) makes it clear that a Local Commissioner may decide not to investigate, or to discontinue an investigation, where he is satisfied with the action that the authority concerned has taken or proposes to take.

Section 172: Authorities subject to investigation

424.This section amends section 25 of the Local Government Act 1974. The amendments clarify which bodies are to be treated as an ‘authority’ to which Part 3 of the Local Government Act 1974 applies, i.e. an authority whose actions may be investigated by the Commissioners. In particular, the amendments make clear that services delivered under partnership arrangements with such authorities fall within the Commissioners’ jurisdiction.

Section 173: Matters subject to investigation

425.This section amends section 26 of and Schedule 5 to the Local Government Act 1974 to provide that a Local Commissioner can investigate an alleged or apparent failure in a service which it is an authority’s function to provide, and an authority’s alleged or apparent failure to provide such a service, in addition to his existing powers to investigate maladministration. It also removes the general restriction on a Local Commissioner’s power to investigate contractual and commercial transactions, replacing it with a number of narrower restrictions.

Section 174: Complaints and matters coming to Commissioners’ attention

426.This section inserts new sections 26A to 26D into the Local Government Act 1974. Sections 26A to 26C clarify the process for making or referring a complaint to the Local Commissioners, with some amendments. In particular, although a complaint must usually be made in writing, sections 26B(3) and 26C(4) amend the 1974 Act to allow a Local Commissioner to disapply this requirement at his discretion.

427.Section 26D provides a Local Commissioner with a new discretionary power to initiate an investigation into possible maladministration or service failure affecting persons other than the original complainant (if any) where this has emerged in the course of an investigation.

Section 175: Reports and statements of reasons

428.This section amends section 30 of the Local Government Act 1974, which deals with the requirements for a Local Commissioner to prepare and send a report or statement of reasons in relation to a matter. In particular, it clarifies and amends what a Local Commissioner can include in a report made under section 30(1). It provides that a Local Commissioner may include recommendations in the report. Where the report relates to maladministration, those recommendations are recommendations with respect to what actions a local authority should take to remedy or prevent injustice.

429.It also clarifies and amends the circumstances in which a Local Commissioner can issue a statement of reasons rather than a full report. It provides that a Local Commissioner must issue a statement of reasons where he has decided not to investigate a matter or to discontinue an investigation of a matter; and may issue a statement of reasons where he has completed an investigation but the local authority takes or proposes to take satisfactory action to resolve it, and it would not be appropriate to prepare and send a full report.

Section 176: Power of Commissioners to make recommendations etc

430.Where a Local Commissioner produces a report, section 31 of the Local Government Act 1974 requires the authority concerned to consider the report and, within 3 months, to notify the Local Commissioner of the action which it proposes to take. If the Local Commissioner is not satisfied with the authority’s response, he is required to make a further report recommending action to be taken.

431.At present, section 31 only applies where a Local Commissioner reports that injustice has been caused to a person. Subsection (2) of section 176 extends section 31 so that it applies where a Local Commissioner reports that there has been maladministration, or a failure in, or to provide, a service, even if no injustice has resulted.

432.Subsection (3) of this section extends a Local Commissioner’s existing powers to make recommendations for action which an authority should take to remedy a matter and prevent its recurrence to cover recommendations about a failure in a service or a failure to provide a service, in line with the changes to the Commissioners’ jurisdiction made in section 173.

Section 177: Publication of reports etc by Commissioners

433.This section inserts a new section 31B into the Local Government Act 1974 to provide an express power to publish reports, statements and summaries of reports and statements, or part of a report or statement, and to supply a copy of all or part of a report, statement or summary, at a reasonable charge, to anyone who requests this. It also provides that a summary supplied in accordance with section 31B should not identify any person apart from the authority or authorities concerned, unless it is in the public interest for it to do so (except if the person identified is the Mayor of London or a member of the London Assembly).

Section 178: Making complaints etc electronically

434.This section clarifies that complaints to the Commissioners may be made in ways other than on paper, by providing that references in the legislation to doing something in writing include it being done in writing electronically, for example by e-mail or text message.

435.The new section makes one exception to the ability to communicate electronically. A Minister of the Crown or an authority subject to investigation by the Commissioners may give notice to the Commissioners to prevent them from disclosing information where they consider that it is in the public interest to do so. Any such notice must be given in traditional hard copy form.

Section 179: Disqualifications

436.This section clarifies and updates the restrictions in Schedule 4 of the Local Government Act 1974, which disqualify a person in some circumstances from:

  • becoming or being a Local Commissioner;

  • once appointed as a Local Commissioner, from investigating certain matters;

  • from taking up certain posts at the end of their term of office as a Local Commissioner.

437.The restrictions apply, for example, where there would be a risk of a conflict of interest. The amendments take account of the reorganisation of the Commission’s work under new section 23(8A) of the 1974 Act, and reflect the fact that a person may have taken action on behalf of an authority without having been a member of that authority.

Section 180: Expenses of the Commission

438.This section changes the mechanism for funding the Commission. Instead of being funded through the local government funding mechanism, the revenue support grant, this section provides for the Commission to be paid each year such amount as the Secretary of State determines is required for the discharge during that year of the Commission’s functions, subject to the approval of the Treasury.

Section 181: Delegation

439.The existing power for the Local Commissioners to delegate to an officer of the Commission is replaced with a wider power for any Commissioner (including an advisory Commissioner) to delegate their functions.

Section 182: Minor and consequential amendments

440.This section inserts Schedule 12 to the Act which contains minor amendments to Part 3 of the Local Government Act 1974 and consequential amendments arising from Part 9 of the Act.

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