28th June 2021
The recent report from the independent panel on Daniel Morgan used the concept of ‘institutional corruption’ – and on this you can see my Financial Times video here and my post here.
But the deployment of such a term makes one think of other terms that come and go in law and policy – and one such term is ‘maladministration’.
It is an odd term – it does not quite mean ‘illegal’ or ‘unlawful’ and so it does not fit into the neat binary of what is called ‘public law’ – the law that regulates what public bodies can and cannot do.
In principle, it would appear that a thing is capable of being maladministration without it also necessarily being unlawful – either as a matter of public law or as an instance of misconduct/misfeasance in public office.
The notion is that maladministration goes to the thing being complained of having an administrative remedy – rather than a judicial remedy.
*
The term ‘maladministration’ is used in English law, see section 5(1)(a) of the Parliamentary Commissioner Act 1967 that established the office known as the ‘ombudsman’ (emphasis added):
‘[the ombudsman] may investigate any action […] to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where […] a member of the public […] claims to have sustained injustice in consequence of maladministration in connection with the action so taken […].’
The act, however, does not define ‘maladministration’ – and all one can glean from the provision quoted is that the term is something to do with the performance of an administrative function.
In R v Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council (1979), the court of appeal averred that ‘maladministration’ had an open-ended meaning, covering ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’.
This is a broad definition.
In 1993 the ombudsman said that ‘maladministration’ included an ‘unwillingness to treat the complainant as a person with rights; refusal to answer reasonable questions; knowingly giving advice which is misleading or inadequate; offering no redress or manifestly disproportionate redress; and partiality’.
These are serious things – indeed these can even constitute criminal offences.
*
Given the breadth of the definition of ‘maladministration’, and the seriousness of what it can cover, it is strange that we do not have more use of the word in the public discussion of failures in the public sector.
For example, the Guardian and the Financial Times each seem to have used the word only twice in respect of United Kingdom matters in 2021.
And this is despite ‘maladministration’ being a term recognised at law and for which parliament has provided a scheme for administrative remedies.
*
Why do we hear so little of the term ‘maladministration’?
The reason cannot be that there is no maladministration – from the post office scandal and the Daniel Morgan report to the problems to do with Covid procurements and the exams fiasco, maladministration, like love and Christmas, is all around.
At least the failures that are covered by the word ‘maladministration’ are all around.
*
So these leaves two possibilities.
Either: the system of administrative remedies is working so well that that the maladministration that does take place is quickly remedied and the complaints resolved.
Or: the system of administrative remedies is not working, and so complainants are having to resort to public law and other means for their complaints to be addressed.
If the latter, this could mean that the reason we hear so little of the word ‘maladministration’ is that is not a practically useful term.
And if that is the case – that the reason we hear so little of the term ‘maladministration’ is that it is not practically useful – then why would that be the case, when parliament has set up an elaborate (and expensive) ombudsman scheme to deal with ‘maladministration’?
Given the ombudsman scheme – formally known as the the parliamentary commissioner for administration – and given the sheer amount of public sector failings, one would expect that the term ‘maladministration’ would be a commonplace in law and policy discussions.
But it hardly features.
So: is the real reason we hear so little of the term ‘maladministration’ in United Kingdom law and policy that the scheme of (to use the ombudsman’s full title) is not working?
Some posts coming up on this blog are going to find out.
**
Please support this blog – and please do not assume it can keep going without support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
I’m fairly sure that I wrote an essay on the meaning of maladministration as part of my first-year constitutional law module in 1967, when the topic was new and exciting. Fortunately for all concerned, I have not kept a copy of the essay. But it’s interesting that the concept (or the term, anyway) has so little traction today. I look forward to your future posts on the topic.
I came to an interest in the law, and the justice system more generally, via a trading standards/consumer affairs qualification in the 1980’s. Ombudsman, mediation, arbitration, consumer complaints, industry codes of practice etc systems – I’ve used them assiduously on behalf of self and others for some four decades. Half of those years were before the internet and word processing etc, which year by year has made access the various routes to having things put right easier. This has increased the volume of complaints but, at the same time, it has also made it easier for organisations to develop cut and paste responses which reject (and sometimes misunderstand) the request for attention. Today I find it difficult to get more than a standard well rehearsed reply out of such systems, which too often seem to have lost the capacity to listen and respond to the points made and the questions put. The stamina needed to pursue rights gets drowned out by a white noise cocktail of too much information, cynicism, fatigue. “Free time” seems scarcer than ever and so people make choices about how much time they will spend pursuing their rights rather than doing something else.
Eternal vigilance may no longer, on its own, be a sufficient price to secure liberty?
There are a range of “ombudsmen” across a number of areas of public service or regulation. My experience of them is that they are poor, have little understanding of evidence and are very dilatory- in some cases, if not all, because they are overwhelmed with cases and seriously under-resourced. As a means of either producing redress or holding services to account they are weak.
Totally agree, I have had three cases to date where I have had to use the Ombudsman’s service and on all three occasions the Ombudsman had found in favour of the organisation I have complained about. On two of the three the Ombudsman had agreed that the organisation had failed but then chose not to uphold my complaint. I am in the middle of a process of using the government Ombudsman complaining about the Environment Agency of maladministration and of negligence, and of one of its staff of gross Misconduct in a public office. I will let you know the outcome.
Well it’s clear the attitude of this government to the law and its administration given the remark in answer to a question by Robert Buckland QC Minister of State for Justice and Lord Chancellor that breaking the law does not matter as the government has a popular mandate.
Akin to when Trump said he could go out and shoot someone in the street and they’d still vote for him…very disturbing position…sadly as well all the while they are in power they’ll do absolutely nothing to change the system…doubt though with Mr Starmer in control even IF Labour win next time they would change it either…as Hacker once noted, no government will reform the system that put it into power, it would be like kicking the ladder away while still standing on it
To access most if not all ombudsman, one must first exhaust all avenues and stages of the complaints processes of the organisations complained about. This is often no mean feat, requiring much stamina, attention to detail and perseverance. As others have said, we live in a time poor era, but also one where there is significant dishonesty and an abject unwillingness to admit error, wrong doing or indeed any desire to do the right thing. It is therefore left to the complainant to box the errant organisation into either, fixing the malfeasance, or blatantly failing to respond appropriately according to their processes.
In the face of this obstruction, it can require significant effort and time to even get to the regulatory adjudication stage.
I fear that while complaints processes are so arduous and defensive professional complaints management so highly regarded by organisations, the role of the ombudsman is of little value or deterrent.
Like the lack of a codified constitution, the system of addressing maladministration depends on a willingness to abide by the once expected honourable behaviour. Unfortunately, honour is in short supply, and so is a remedy to those in need.
You are so right Stephen. I am still embroiled in the ‘complaint system’ with PHSO, ICO, PACAC et al since 2014 and not at the end yet. The people I feel for are those who are inside organisations but are afraid to blow the whistle to call time on the institutionalised corruption because they know the likely outcome of putting their heads above the parapet.
Never mind ‘maladministration’, ‘turpitude’ is a word that should be brought back into general circulation.
‘The prime minister was polishing his turpitude.’
Plainly the second option. But ‘maladministration’ was always for little people, there to frighten parish councillors and scarcely anyone else. Further up the dunghill there is a system of cross coupled support and secrecy mechanisms to keep control strictly out of the hands of busybodies.
Perhaps it is time for a new souped-up Northcote-Trevelyan report – but wider and stiffer. But that won’t happen, our degradation has yet further to go.
‘[the ombudsman] may investigate any action’
maybe may is not a strong enough order to get into action.
I have spent half a decade using the must investigate all complaints of Regulation 16 of the Health and Social Care Act. As i have battled to make 8 hospitals, 4 medical experts, a CCG, 2 GP surgeries and the Regulator of health standards, the CQC, understand and amend their practice that TENDONS are not JOINTS. With increasing desperation, reminding all of their Regulation 20, the Duty of Candour obligations. All have ignored me as the gap in this ‘wonderful’ legislation is Regulation 35. Where an individual cannot enforce these regulations, only the CQC can do this. But, the CQC doesn’t get involved in individual cases. Welcome to more corruption in public service.
I had complaints upheld by the Public Service Ombudsman which were in fact misconduct issues not so much maladministration. I did ask if he could address my complaints as misconduct, to which he replied, no we can only address maladministration. I was told by the council, that if I was accusing them of misconduct in public office I should take my complaints to the police. A member of the public who has suffered hugely at the hands of her council’s planning deviances should not have to go through the ordeal of police investigations. Surely it is the responsibility of the council. My complaints were upheld in the main and I was awarded £2.000 for my time and trouble, but in fact have lost everything including my home.
I went through the Pension Ombudsman about my case were I suffered a severe traumatic brain injury in the Royal navy while serving overseas, received the wrong diagnosis on repatriation and sent back to work without any treatment. the case: https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.pensions-ombudsman.org.uk/sites/default/files/decisions/85193.doc%23:~:text%3DMr%2520Davie%2520has%2520been%2520awarded,been%2520invalided%2520from%2520the%2520Navy.&ved=2ahUKEwjjz7Wb45XyAhXNh1wKHQgmC0UQFnoECAQQBg&usg=AOvVaw3oKiUv9TxXAZkX63dLNhM8 was turned down. The RN lied to the pension Ombudsman and I proved to the PO that but she still did not change the decision. I then took it to the parliamentary Ombudsman who had my case for a few months and then told me they could do very little with my case and it left it out of time to take the case to the court of session.
The appeal process of the LGO is a beauty ! They employ “investigators” with no special skills. You present all your evidence to the investigator who may or may not interpret it correctly depending on the complexity of the case and their relevant skill level. You can appeal against the investigators decision but only on the basis of new evidence. Unless you hold something back you are stymied.
There is no option to appeal to someone who may have more relevant experience. I would never recommend anyone to bother approaching the LGO unless your complaint is very straightforward. But if it were it would never have arrived at the LGO in the first place.
Absolutely agree…
We appealed to the LGO 2-years ago about our council’s “illegal” (Because, it turns out, they had lied… twice!), action to CPO our family home. This is aside from the fact that the council’s action was ‘perverse’, flying as it does in the face of 24-years of parliamentary intent. We were required to live elsewhere to provide care for my elderly, disabled mum. This is, according to Lord Rooker and the Housing Act in 2004, a perfectly legitimate reason that does not warrant any state intervention… Anyway, the LGO said they would not investigate because we had a right of appeal to the Minister under CPO. The LGO’s own guidance confirms that we don’t!
The LGO also misconstrued our complaint, to avoid the need to investigate.
We made a second complaint about further related instances of ‘maladministration’ and illegality that post-dated their first ‘side-step’ 12-months later, but, yet again, the LGO refused to investigate because they said that they; “wouldn’t ‘re-open’ an investigation” they had [not] undertaken. They also said that the courts (Judicial Review) were the most appropriate place for our complaint; “…even though you are out of time…”.
The LGO staff guidance documents (pointlessly published on their website for openness), clearly states that, if any approach for judicial review is “misconceived” (which ours, it turns out, was…), the LGO retains jurisdiction. In addition, their Guidance confirms that the LGO should “carefully consider how reasonable it is to expect a complainant to resort to “expensive” JR – without Legal Aid”…
If this is not reason enough for them to act, as their own guidance states: the High Court themselves have found that the LGO is the most appropriate venue to investigate our complaint. But; “Computer still says “No”….
Despite having pages of helpful staff guidance – that no one seems to read / believe / feel obliged to follow(?). Even though the LGO ignore their guidance and refuse to assist us, having exhausted their “Request for Review” process, they have (chosen to) follow their guidance by confirming that they will; “add any future correspondence to our file, but will not communicate with us further”!
What is even more upsetting is that, had the LGO actually investigated when we first asked, as it seems their guidance and the courts say they should, it is likely that we would still own our home of 24-years.
Maladministration – and the inability to get any of the turkeys to vote for Christmas (Change their mind, having made a perverse decision) infects all levels of bureaucracy, from Parish, via District all the way up to Central government. It should be noted that the Valuation Tribunal is a shining jewel in this otherwise tarnished and broken culture of ‘self-serving Lip-Service’ and unaccountability.
Openness in Local Government Regulations 2014 (Reg.7) anyone? The LGO will not even investigate our Council’s refusal to disclose the legally required record of three key decisions that led to the loss of our home – records, according to the Regulations, legally required and disclosable, in the public interest, intended to hold decision makers to account for their decisions…
It is Kafkaesque, if not Orwellian, that the only way one might even possibly get the LGO to investigate an issue that both the Court and Judicial Review say they are most appropriate to investigate, is to attempt to take the LGO to expensive Judicial Review!
The system is, indeed broken – ‘Not fit for purpose’ – at least from the position of a serf.