LGSCO Guidance on Jurisdiction – Summarised

The LGSCO’s guidance on jurisdiction has recently been updated. It includes updated information on the LGSCO’s right/power to administer justice and to apply laws. The guidance incorporates recent developments in the law about jurisdiction, such as Milburn, while not referencing the case explicitly. More useful information about frequently asked questions regarding complaints to the LGSCO and challenging its decisions can be found here. 

Part 1: Introduction 

• Jurisdiction – The right or power to administer justice and to apply laws
• The LGSCO must be careful to operate in line with the legislative framework which gives it its powers, under the Local Government Act (“LGA”) 1974. 

Part 2: Maladministration and Service Failure

2.1 Introduction 

• ‘Maladministration’ is not defined in law and there is no explicit threshold for what constitutes it. 
• The LGSCO can investigate alleged/apparent maladministration or service failure but presents them as ‘fault’ in decision statements. There is no need to explain the differences between various types of fault, unless it makes the analysis unclear. 

2.2 What is maladministration? 

• The LGSCO decides whether something amounts to maladministration, but in general terms, it is ‘administrative fault by the body in jurisdiction’ or ‘fault in an action taken by a body acting on behalf of the body in jurisdiction’ (the ‘BinJ’).
• Maladministration should not be considered by itself. The LGSCO must assess the question whether it caused injustice for the complainant and whether a remedy is suitable. 
• The guidance gives examples of what maladministration might include in broad terms, such as flaws in policies or decision-making. 

2.3 Assessing maladministration 

• Whether there has been injustice depends on all the evidence, including mitigating factors associated with either party’s actions. A decision will be made about what actions/inactions were reasonable, fair or appropriate in all the circumstances. 
• The LGSCO’s conclusion about fault should never be about whether the BinJ’s actions were reasonable, as it confuses reasonableness/unreasonableness (a public law concept for the Administrative Court) with the concept of ‘maladministration’. 

2.4 What is “Wednesbury unreasonable”?

• The LGSCO should not apply the “Wednesbury unreasonable” test ie whether something is ‘wholly or utterly unreasonable’ in the view of the Administrative Court. 
• A council’s decision will be rarely viewed as wholly unreasonable, which can also be referred to as ‘perverse’, but it must be acknowledged that the process preceding any such decision is likely to have involved fault at some point. 

2.5 Service Failure 

• The introduction of ‘service failure’ into the 1974 legislation in 2007 was not so revolutionary, but rather a tidying-up exercise to make it more in line with other public sector ombudsman legislation. 
• The broadening of ‘matters subject to investigation’ to include ‘service failure’ should not lead to a change in investigative practice, which caselaw confirms. 
• The 2007 amendment only confirms that there does not need to be any aspect of blame, intent, or bad faith involved in a body’s actions in order for the LGSCO to find fault.
• ‘Service failure’ derives from an objective test, and can be present in the absence of specific flaws in policy or process and despite the best endeavours of the body concerned. In such cases, the LGSCO should be clear about the surrounding context. 

2.6 Recording maladministration and service failure in ECHO

• The guidance gives many examples of issues the LGSCO needs to consider when deciding whether to record a finding of no maladministration, including asking what the nature of the fault was, how significant it was and whether others were affected by it. 
• Minor issues that have not caused injustice can be recorded in ECHO, which is the LGSCO’s case management system, as ‘no mal’ if appropriate. 
• It is up to an investigator whether to record a finding of maladministration in ECHO, which may depend on the circumstances. The guidance provides four examples of how different circumstances may determine the recording of a finding of maladministration in ECHO. 

Part 3: Is the authority within jurisdiction? 

3.1 Part IIIA

• The LGSCO can investigate the actions of a PRIVATE ‘adult social care provider’ operating without the involvement of any local authority commissioner under the Care Act –  actions towards those aged 18 or over, within the meaning of Part 1 of the Health and Social Care Act 2008. This means a provider offering regulated activities as defined by that Act. 
• Complaints about care providers not registered with the Care Quality Commission (CQC) may be within the LGSCO’s jurisdiction, but not pass that second criterion, but should be considered in a normal way. 

3.2 Part III

• The guidance reproduces the authorities listed in Section 25 of the LGA 1974 which are within the LGSCO’s jurisdiction: 

Local authorities

Any joint board the constituent authorities of which are all local authorities

Combined authorities (CA)

• The guidance provides extensive details of whether the LGSCO has jurisdiction for handling complaints about the following entities: 

3.3 Metro Mayors – Within jurisdiction, subject to statutory constraints 

3.4 Multi agency bodies and partnerships – Highly dependent on circumstances 

3.5 Councils delegating services to councils, cross council collaboration boards and other structures – Normally within jurisdiction, subject to arrangements 

3.6 Integrated health and adult social care teams – Depends on the Joint Working Team’s ‘initial look’ 

3.7 Health and social care partnerships – Highly dependent on circumstances 

3.8 Health and wellbeing boards – Within jurisdiction 

3.9 Formal arrangements under s75 of the NHS Act 2006 – Depends on the subject of the complaint 

3.10 Fire and Rescue authorities and Police, Fire and Crime Panels – Within jurisdiction 

3.11 Passenger Transport authorities – Highly dependent on circumstances 

3.12 Police and Crime Commissioners (PCC) – Only the PCC’s actions are within jurisdiction

3.13 Police and Crime Panels (PCP) – Non-criminal matters are within jurisdiction 

3.14 Community Safety Partnerships – Not within jurisdiction

3.15 Multi-Agency Risk Assessment Conferences (MARAC) – Not within jurisdiction, but a council’s actions as part of the MARAC is 

3.16 Multi-Agency Public Protection Arrangements (MAPPA) – Not within jurisdiction 

3.17 Emergency planning and preparedness – A council’s actions in relation to contingency planning or actions taken participating in Local Resilience Forms are within jurisdiction

3.18 Speed camera partnerships/safer road partnerships – Not within jurisdiction, unless tied to the actions of a council 

3.19 National Anti-Fraud network – Not within jurisdiction, unless tied to the actions of a council 

3.20 Local Enterprise Partnerships (LEP) – Within jurisdiction only in relation to the exercise of the relevant council’s functions within the LEP

3.21 The Environment Agency and Regional Flood Defence Committees – WIthin jurisdiction but only in connection with flood defence and land drainage matters

3.22 Any body of persons acting for the authority under s 101 of the Local Government Act 1972 – Within jurisdiction but only relating to joint committees 

3.23 Waste partnerships and waste authorities – Within jurisdiction where a joint committee has been formed 

3.24 Purchasing, tendering or procurement organisations – Highly dependent on circumstances 

3.25 Internal drainage boards (IDB) – All within jurisdiction

3.26 Sea fisheries authorities – Sea fishers and conservation authorities are within jurisdiction 

3.27 The Homes and Communities Agency (HCA) – Only within jurisdiction if complaints are about “action in connection with functions in relation to town and country planning”

3.28 Education appeal panels (EAPs) – Within jurisdiction, apart from academy schools and the appeal panels considering academy appeals 

3.29 School governors – Within jurisdiction when acting on admission matters, excluding governors of academy schools 

3.30 Meetings under the school admission Fair Access Protocol (FAP) – Within jurisdiction

3.31 Learning disability partnerships – Only the council’s actions in jurisdiction where appropriate 

3.32 Child protection conferences (CPC) – Not within jurisdiction, but there are some matters that can be investigated 

3.33 Safeguarding Adults Boards (SAB) – Within jurisdiction, subject to the nature of the complaint 

3.34 Channel Panels – Subject to the consideration of adult safeguarding boards 

3.35 Development Corporations – Those listed in the LGA 1974 are within jurisdiction 

3.36 Business Improvement Districts (BIDs) – Not within jurisdiction, but the act of a council on behalf of a BID is very likely to be 

3.37 Council owned companies – Highly dependent on circumstances

3.38 Complaints about actions by organisations whose relationship with a body in jurisdiction is unclear – Highly dependent on the answers to the questions included within the guidance 

Part 4: Actions we can investigate

4.1 Section 26(1) lists the actions that may be investigated

• The guidance reproduces the list of actions the LGSCO can investigate as per s.26(1) of the LGA 1974. 

4.2 Section 34B (Part IIIA complaints)

• The LGSCO may investigate a matter which relates to action taken by an adult social care provider in connection with the provision of adult social care. 

4.3 What are administrative functions?

• The guidance provides details about what administrative functions are, which include all functions that are not exclusively judicial or legislative.

• Most other actions of officers are actions taken in the exercise of the administrative functions of a council, but the guidance draws attention to the following, which includes individuals ove which the LGSCO may or may not have jurisdiction: 

4.4 Superintendent Registrars

4.5 The Registration Officer

4.6 Approved mental health professionals

4.7 Other health professionals

4.8 Coroners

4.9 Councillors

4.10 Complaints that the councillor has breached the Councillors Code of Conduct

4.11 Contractors or other authorities acting for the body in jurisdiction

4.12 Civil enforcement officers (also known as bailiffs)

4.13 Councils subject to Government intervention

Part 5: Who can complain? 

5.1 S26A

• The guidance reproduces s.26A of the LGA 1974, which sets out who can make complaints about a matter. These are usually those who have directly been affected by injustice, but they may include the following:
  • A personal representative, where there is a good reason for their involvement
  • Someone authorised to act on behalf of the person affected, with their consent
  • Subject to guidance, someone who does not have formal authorisation
• ss.26A and 27 exclude from the LGSCO’s jurisdiction complaints from public bodies that are otherwise within and outside the LGSCO’s jurisdiction.

5.2 Who are members of the public?

• Many different types of people and groups qualify as members of the public, including the following:
  • Individuals – They do not have to be a citizen/resident in the area served by a Local Authority.
    • MPs
    • Councillors
    • Volunteers working with bodies in jurisdiction 
  • Groups of individuals 
  • Companies, organisations or other bodies 
    • The guidance includes examples of bodies that fall within the category, such as charities like CASCAIDr, and those which do not, such as local authorities. 

5.3 Complaints “on behalf of” a member of the public

• There are no restrictions on who can complain on someone’s behalf, but it must usually be done with their consent. Other documents can be accepted instead, such as a Power of Attorney for Property and Financial Affairs. 
• The guidance lists who can validly complain, including relatives and friends, but consent should not be presumed. 

5.4 Where a person affected has died or does not have capacity to provide consent

• Investigators have to decide whether a representative is suitable depending on all the circumstances, including conflicts of interest or if someone else is more suitable. 

5.5 Part IIIA complaints

• Part IIIA complaints are subject to the same criteria as those in Part III. 
• Section 34C(2) of the LGA 1974 allows complaints to be made by personal representatives or by a person who appears to the LGSCO to be suitable to represent someone who might have made a complaint has died or is otherwise unable to authorise another person to act on their behalf. 

5.6 Complaints made by LGSCO staff or others individuals working with LGSCO

• This can be found in other guidance. 

5.7 Matters coming to our attention (s26D)

• The guidance reproduces s.26D of the LGA 1974, which sets out matters the LGSCO can investigate during investigations if someone who has not complained may have suffered injustice as a result. 

Part 6: Is the complaint in time? 

6.1 26B Procedure for making complaints

• The guidance reproduces s.26B of the LGA 1974, which details the procedure for making complaints, including that complaints must be made in writing. 
• The time limit for bringing a complaint to the LGSCO is 12 months, but not all complaints that are made beyond the period should be excluded. The time bar does not apply to people who may have lacked or continue to lack capacity. 

6.2 When does the 12 month period run from?

• The period runs from the day the person affected had notice of the maladministration they complained about. The guidance gives examples of how this applies. 

6.3 What do we mean by “making the complaint”?

• This means more than producing background correspondence. If a complaint is made to someone within 12 months, such as a councillor, and they delay referral to the LGSCO, it will still be valid. 

6.4 When might we exercise discretion to investigate a late complaint?

• The guidance notes the guidelines that should be taken into account when noting and detailing the reasons for exercising or not exercising the discretion to investigate, such as taking into account the fact that the complainant was ill or unable to act. 

6.5 Continuing fault

• In cases of continuing fault, the LGSCO may decide that the 12-month period does not begin until the fault ends. 
• The guidelines provide examples of the exercise of discretion, such as allowing a complaint where someone found out about alleged maladministration a year after they experienced it. 

6.6 Restricting the scope of the investigation

• Where appropriate, the LGSCO may investigate a problem from the moment it became more severe. 

6.7 No good reason to exercise discretion

• A late complaint should not be considered unless there are good reasons for doing so. 

6.8 Historical allegations

• The LGSCO should exercise caution about investigating historical allegations (where so much time has elapsed since the fault occurred) for several main reasons:
  • Evidence – Material facts may be more difficult to establish.  
  • Context – Current standards or guidance may not be possible to apply. 
  • Remedy – It may be more difficult to achieve a meaningful remedy. 
• The guidance outlines a two-stage test that must be very clearly satisfied if historic cases are to be investigated, but a presumption exists against investigating such cases:
  • There is a realistic prospect of reaching a sound, fair, and meaningful decision. 
  • The complainant could not reasonably be expected to have complained sooner.
• The seriousness of an allegation is immaterial to the evidential requirements for investigating historical allegations. 

Part 7: Is the complaint premature? 

• s.26(5) of the LGA 1974 covers things a Local Commissioner should satisfy themself about before proceeding to investigate a matter. 
• The LGSCO normally expects complainants to show that they have exhausted local authorities’ and service providers’ multi-staged complaints procedures (which exist in most cases) before using the LGSCO service. 
• In most instances, urgent appeals for services will be met more quickly by service providers than the LGSCO. 
• Subject to other statutory time limits, the LGSCO allows local authorities or service providers around 12 weeks to complete the consideration of a complaint, but may allow longer where someone has delayed progressing their complaint. Only in limited cases would the LGSCO consider an issue before allowing local authorities or service providers reasonable time to respond. 
• The guidance outlines the worthwhile outcomes of ensuring people exhaust local procedures before coming to the LGSO, which include affording local authorities and service providers an opportunity to learn from mistakes and take remedial action as early as possible in response to a justifiable complaint. 
• The guidance sets out exceptions to the general caution the LGSCO should exercise about starting an investigation where local resolution methods have not been exhausted, including the cases where a local authority or service provider has been notified of a complaint but failed to respond within a reasonable time frame. 
• The presumption will be against disapplying s.26(5), and it should only be done for very clear reasons and if the LGSCO is confident that it would be fair to the parties involved. 
• Care should be taken to avoid taking an inconsistent approach in either Intake, Assessment or Investigation on the same complaint.

7.1. Complaints about Council-commissioned services and prematurity

• Under ss.25 and 25(8) of the LGA 1974, the LGSCO can treat third parties’ actions as if they were actions of the council if such third-party arrangements exist. 
• Councils keep responsibility for third-party actions, including complaint handling, notwithstanding their arrangements. 
• The guidance presents a set of principles the LGSCO will use to deal with complaints about third parties commissioned by councils, which the public can use to seek independent redress at the earliest opportunity, including the principle that councils should have clear arrangements in place for handling complaints when they commission other organisations to provide services on their behalf. 
• The guidance also sets out the LGSCO’s position on complaint handling, including that complaints will be forwarded to Assessment for further consideration and not automatically treated as premature, even though the matter may not have been through a council’s own complaints procedure.

Part 8: Is there an alternative remedy? 

8.1 Introduction

• s.26(6) of the LGA 1974 sets out the matters a Local Commissioner shall not conduct an investigation in respect of, including any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment.

8.2 Three-part test

• s.26(6) requires the LGSCO to consider three questions throughout its investigation: 

1. Is there an alternative remedy for the complaint?
2. Has the alternative remedy been used?
3. Is it reasonable for the complainant to use the alternative remedy?

• The LGSCO can be challenged about whether it failed to consider the first question, was misdirected about it, or the decision to investigate or not investigate was “Wednesbury unreasonable”. 
• The guidance sets out other obligations imposed upon the LGSCO, such as those to do with recording and reviewing the exercise of direction. 

8.3 Question 1 – Is there an alternative remedy?

• The guidance is framed with regard to the three subsections of s.26(6): 

1. Where the person affected has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment
2. Where the person affected has or had a right of appeal to a Minister of the Crown 
3. Where the person affected has or had a remedy by way of proceedings in any court of law

s.26(6)(a)

• The guidance sets out the main tribunals relevant to complaints to the LGSCO:
  • The Information Commissioner (ICO) 
  • Education appeal panels
  • Office of the Schools Adjudicator (OSA) 
  • The First-Tier Tribunal (Social Entitlement Chamber) and The Upper Tribunal (housing benefit appeals)
  • Valuation Tribunals (VTs) 
  • The Upper Tribunal (Lands Chamber)
  • The First-Tier Tribunal (Property Chamber), Agricultural Land and Drainage (AL&D)
  • The First-Tier Tribunal (Property Chamber) now hears appeals formerly heard by the Leasehold Valuation Tribunal
  • Adjudicators Appointed to the Traffic Penalty Tribunal (TPT) (formerly the National Parking Adjudication Service (NPAS) and (in London) the Parking and Traffic Appeals Service (PATAS) – known as London Tribunals since July 2015
  • First-Tier Tribunal (Special Educational Needs and Disability) (SEND)
• The guidance sets out bodies with are not tribunals for the purposes of s.26(6)(a):
  • The district auditor
  • Education Transport Appeal Panels
  • The district valuer 

s.26(6)(b) 

• The guidance sets out the main appeals for the purposes of s.26(6)(b), such as planning appeals including those against non-determination of a planning permission.
• The guidance also lists matters that are not rights of appeal (not caught by s.26(6)(b)), such as objections to the Minister against compulsory purchase orders (CPOs). 

s.26(6)(c) 

• The remedy must be against the body in jurisdiction, not a third party.
• The guidance provides examples of when s.26(6)(c) may or may not apply, such as where in the course of proceedings the complainant has made a counterclaim against the council in relation to the subject matter of his complaint, and where the complaint could have or has been raised in defence of an action brought by the council respectively. 
• The guidance lists examples of statutory provisions that provide a specific right to go to court:
  • Magistrates’ Court
    • Highways Act 1980 
    • Building Act 1984 
    • Certain licensing provisions 
    • Licensing Act 2003 
    • Environmental Protection Act 1990 
  • County Court
    • Housing Act 1985 
    • Housing Act 1996 
    • Secure Tenant of Local Housing Authorities (Right to Buy) Regulations 1994
    • Appeals by private landlords against the service of Housing Act Notices
    • Data Protection Act 1998 
    • Equality Act 2010 
• The guidance includes information about general jurisdiction in tort and contract claims, rights to apply to the Crown Court and High Court, the process of judicial review and time limits. 

8.4 Question 2 – Has the remedy been used?

• The general rule is that where a complainant has exercised his/her right of appeal, reference or review or remedy by way of proceedings in any court of law, the LGSCO has no jurisdiction. 
• An action usually begins when there is an application to the court for a summons or writ or the lodging of an appropriate appeal. 
• The LGSCO retains jurisdiction where proceedings that have been taken are misconceived. 
• The LGSCO’s jurisdiction ceases once the litigation or appeal has started. The relevant complaint should be discontinued under s.24A(6). 
• The guidance includes advice about the extra caution required for complaints where the litigation or an appeal is proceeding and not finalised. 
• The guidance provides examples of where s.26(6)(b) will not apply to complaints, such as cases where a council has given wrong pre-application advice about the need for planning permission. 
• The guidance sets out cases where s.26(6), s.24A(6) or both are relevant to grounds for rejection where a complainant has already resorted (or resorts after an investigation has begun) to an alternative right or remedy. 
• Where the relevant legal proceedings have been instigated by the council, s.26(6) would not apply, but the LGSCO may consider exercising discretion under s.24A(6). 

8.5 Question 3 – Is it (or was it) reasonable for the person complaining to use the alternative remedy?

• The LGSCO may conduct an investigation where it is/was not reasonable for the complainant to resort to an alternative remedy. 
• The guidance sets out the factors that should be taken into account when deciding the above question:
  • The LGSCO normally expects complainants to use appeals to a Minister, Tribunal and in response to the refusal of planning permission. 
  • The fact that a council has put a matter in the hands of its insurers
  • The complainant’s financial position 
  • The availability of legal help, help at court, legal representation and the nature of the case 
  • The possibility of court proceedings arising during an investigation

• The guidance sets out examples of why it might or might not exercise discretion under s.26(6), such as where the complainant was unaware of the right of appeal and the authority failed to advise them of it, and where there is a specific statutory right to appeal against the council’s actions respectively. 
• The guidance provides examples of when it might be more appropriate for the LGSCO to consider a matter which can be raised in judicial review proceedings, such as when the allegation can be investigated by the resources and powers of the LGSCO. The guidance also mentions other relevant considerations, such as uncertainty about whether there is a remedy by means of judicial review. 
• The guidance provides examples of how the exercise of discretion works in practice. 

Part 9: All or most? 

9.1 Is the complaint about action which affects all or most of the inhabitants of the area?

• s.26(7) of the LGA 1974 covers instances where a Local Commissioner shall not conduct an investigation in respect of any action, including those which in their opinion affect all or most of the inhabitants of a National Park authority. The rejection of a complaint under the section will be rare. 
• The legislation states that the area of an authority is the whole of a local government area, such as the whole county or district. 
• The LGSCO interprets ‘most’ to mean a sizeable majority. 
• Where a matter is out of the LGSCO’s jurisdiction, an investigator should mention the possibility of complaining to the correct authority. 
• A good test is to ask if the complainant is particularly affected by some injustice that is beyond that suffered by the public generally. 
• A Local Commissioner’s ‘opinion’ that is considered properly and fairly is unlikely to be successfully challenged. Decision statements should set out reasons.
• Investigators should probe to seek clarification about complaints that may be disguised as those which would be within the LGSCO’s jurisdiction.
• The guidance gives examples of complaints that are caught and not caught by s.26(7). 

Part 10: Is there an absolute bar? 

10.1 Part III Schedule 5 – Matters not subject to investigation

• This is covered by Schedule 5 of the LGA 1974, which the guidance reproduces. 

10.2 Caselaw – complaints about complaints where we cannot look at the substantive matter

• The LGSCO has a wide discretion to investigate or not investigate matters, based on considerations including the cost of investigating and whether a meaningful outcome can be achieved. 

10.3 Part IIIA Schedule 5A

• The LGSCO’s jurisdiction is excluded from the following matters:
  • A matter which could be the subject of an investigation by a Local Commissioner under Part 3
  • A matter which could be the subject of an investigation by the Health Service Commissioner under the HSCA 1993
  • The commencement or conduct of civil or criminal proceedings before any court of law 
  • Action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters.

10.4 Generally

• Schedule 5 lists the matters specifically excluded from the LGSCO’s jurisdiction. The guidance lists its main items, which include the commencement of court proceedings. It considers each of the following in much more detail in turn:
  • 10.5 Sch 5 Para 1 The commencement or conduct of civil or criminal proceedings in any court of law
  • 10.6 Sch 5 para 2 Action taken by or on behalf of any policing body in connection with the investigation or prevention of crime
  • 10.7 Sch 5 para 3 Contractual and commercial transactions
  • 10.8 Sch 5 para 4 Action taken in respect of appointments, removals, pay, discipline, superannuation or other personnel matters
  • 10.9 Sch 5 para 5 – Certain educational matters
  • 10.10 Sch 5 para 5A/5B Actions taken by a local authority in connection with its housing activities as they relate to the provision and management of social housing

10.11 Other exclusions (less likely to feature in complaints) in sch 5

• The guidance reproduces the exclusions of the LGSCO’s jurisdiction that set out in paragraphs 6, 7 and 8 of Schedule 5. 

10.12 Part IIIA complaints Schedule 5A

• The guidance reproduces the prohibitions imposed upon the LGSCO by Schedule 5A to investigate a complaint under Part IIIA. 

Part 11: Should we investigate?

11.1 Introduction

• s.24A of the LGA 1974 sets the basis for how the LGSCO can use its discretion, referred to as ‘our general discretion’ or ‘Ombudsman’s discretion’. 
• The LGSCO, where proportionate, should try to complete investigations by making a finding of fault or not fault. It can choose whether to investigate, end an investigation, limit what is investigated, or decide whether there is another body better placed to deal with a matter, based on the understood circumstances, public interest, fault and remedy, but it should provide reasons. It has a very powerful discretion. 
• Arbitrary, blanket or otherwise ‘unreasonable’ decisions cannot be made. 
• The LGSCO no longer uses ‘discontinue’ in relation to ending investigations, for the reasons set out in the guidance. 
• Throughout the handling of a complaint, the LGSCO should constantly keep the exercise of its discretion under review. 
• The guidance sets out a number of cases that confirms the scope of the LGSCO’s ability to choose to put limits on what they investigate, including R v Parliamentary Commissioner for Administration, ex parte Dyer [1994] 1 All ER 375: only in rare cases can be demonstrated that the Ombudsman’s exercise of discretion was unreasonable in the public law sense, and the Court will be reluctant to intervene in the exercise of its discretion. 

11.2 Discretionary factors to consider

• The LGSCO has regard to four inter-related tests throughout an investigation: 

1. The Public Interest Test – the level of wider public interest arising from the individual case 
2. The Injustice Test – the level of personal injustice the complainant claims to have been caused as a direct result of the actions or inactions of the service provider
3. The Fault Test – the scale and nature of the fault, that the complainant alleges has occurred and whether it is directly linked to the injustice claimed
4. The Remedy Test – how likely it is we will be able to achieve a meaningful outcome to the complaint

• A finding may be reached in consideration of all four tests, or one test may be enough. There is no numerical formula. 
• The LGSCO service will make reasonable adjustments to its working processes where necessary, in line with the Human Rights Act 1998 and Equality Act 2010. 

11.3 The Public Interest Test

• The guidance sets out cases where the LGSCO is more likely to investigate a complaint, such as where it relates to an issue of significant public interest; a known issue of current concern to the Ombudsman; or clearly impacts a wider range of people beyond the individual complainant.

11.4 The Injustice Test

• The Injustice test is important in the LGSCO’s decision to end or not end the investigation of a complaint. 
• Investigations can end at any point because there is not enough evidence of injustice, but due regard should be given to the importance for the BinJ and complainant in a finding of fault, such as where it can help achieve some closure, and the wider public interest of continued investigation. All decisions must be justified. 
• The guidance provides examples of instances where the LGSCO will or will not investigate a complaint, such as where the complainant has suffered serious harm, and the alleged loss/injustice is not a serious/significant matter respectively. 
• The LGSCO normally expects the complainant to provide a causal link between fault and significant personal injustice, but complaints can also regard injustice that is more public or non-direct.
• Non-material forms of injustice can be within the LGSCO’s jurisdiction. The guidance provides a number of reasons why arriving at a consistent approach on the exercise of discretion in such cases can be difficult, including the concern that what may affront one person, may cause little or no concern to another.
• The LGSCO uses a three-stage test to determine whether non-direct/public injustice may merit investigation: 

1. Stage one – In all circumstances, is it legitimate for us to conclude the council’s alleged maladministration or service failure might give rise to significant concerns, offence or upset for some members of the public?
2. Stage two – Does the complainant have some defining element that establishes a clear link between the alleged maladministration or service failure and the non-direct or public injustice about which they complain?
3. Stage three – Are we satisfied there is no other body better suited to consider the allegations that have been made?

• Remedies for non-material injustice are more rooted in local authorities taking organisational learning and ensuring that similar incidents do not occur again, and may involve taking action to ameliorate the injustice’s impact where possible. 

11.5 The Fault Test

• Fault is a broad concept encompassing many actions or inactions. 
• The guidance outlines circumstances where the LGSCO will be more likely to investigate a complaint, such as where the type and scale of the fault amounts to a particularly serious failure to meet normally expected standards of public service.
• The guidance also outlines circumstances where the LGSCO will be less likely to investigate a complaint, such as where there is not enough evidence of fault.
• The Assessment stage is designed to conclude whether the alleged fault warrants detailed investigation, therefore it will be unusual for investigations to end at the Investigation stage due to insufficient evidence of fault. However, some considerations about fault may only become sufficiently clear at the Investigation stage.  

11.6 The Remedy Test

• The guidance sets out circumstances where the LGSCO will be less likely to investigate a complaint, including where, in its view, the service provider’s response to the complaint already represents a reasonable and proportionate outcome.