Whatever happened to the concept of ‘maladministration’?

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.

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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.

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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.

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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.

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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.

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12 thoughts on “Whatever happened to the concept of ‘maladministration’?”

  1. 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.

  2. 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?

  3. 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.

  4. 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.

    1. 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

  5. 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.

    1. 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.

  6. Never mind ‘maladministration’, ‘turpitude’ is a word that should be brought back into general circulation.

    ‘The prime minister was polishing his turpitude.’

  7. 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.

  8. ‘[the ombudsman] may investigate any action’
    maybe may is not a strong enough order to get into action.

  9. 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.

  10. 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.

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