Local Government Lawyer Insight February 2018 LocalGovernmentLawyer 10 although many members of its staff are qualified lawyers, the Local Government and Social Care Ombudsman is essentially a ‘lay’ system of justice, part of the “culture” of Magistrates Courts or juries, King says. Moreover, it works on an inquisitorial basis rather than the adversarial system which lawyers are more used to. “This is quite unusual in the British justice system and I think people sometimes struggle to understand that,” he says. “Obviously, we're completely independent of both the local authority, but also of the complainants. Sometimes complainants think we should be an advocate on their behalf, which we're absolutely not. “So we are an independent, impartial body who are conducting an inquisitorial, investigative process into the issue and then making the judgment on it. There are very few parts of the English justice system that operate on that basis and it’s something that’s much more of a continental model. “Sometimes we talk to local government lawyers who are used to an adversarial justice system who find this is a bit of a strange beast to deal with. But in terms of our process, we try to keep it as straightforward and accessible as possible and try to remove as much burden as we can from both the complainants and the local authorities. “We've got the powers of the High Court in making investigations, which we use where appropriate, but, actually, we try to do conduct most of the process through consent and cooperation with both parties. For example, in every case where we're making a decision, we'll do a draft decision and that goes to both parties at the same time. Both parties see what we're minded to decide and that's the key opportunity for both the council and complainant to challenge our thinking. I think that's a fundamental part of the process, which again is quite unlike a court process. It’s really important to us to make sure that we're being even- handed and fair.” In order to demystify the process, King points out that the LGO is the most transparent ombudsman scheme in the country, publishing all of its decisions on its website (around 12,000 a year) as well as making its investigation and assessment manuals and remedy guidance publicly available. “We publish those, in part, to make sure our service is accountable,” he says. Compulsory compliance? The system works, King adds, because the vast majority of local authorities recognise that the process is fair, even if they do not always agree with all of the outcomes. The alternatives, he suggests, are generally far worse and/or expensive so there is a reasonable consensus amongst councils that the system should be supported. It is the maintenance of this ‘policing by consent’ approach that makes King opposed to any attempts to make enforcement of the Ombudsman’s decisions mandatory. “We have very high levels of compliance with our decisions and I passionately believe that our decisions shouldn't be binding. Governments in the past have offered us the opportunity to have binding remedies and we've argued against that because fundamentally, I shouldn't be substituting my view for that of elected members. At the very end of this process, it has to be subservient to local democracy and I think that's a really, really important part of how it works. “Having said that, there's sometimes some confusion about just how much latitude local authorities have to challenge our decisions. The case law says that a local authority does not have locus to challenge our findings, the decision- making process or the remedy we recommend other than through judicial review. The courts have made it pretty clear in most cases that they're not going to interfere with our discretionary decision making unless there's a public law reason why that's flawed. “So, if a council disagrees with a decision, the only area of real latitude the local authority has outside of judicial review is to make a decision not to implement our recommendations. “The reason that our decisions aren’t binding is because there is a latitude for a local authority to take into account matters that the Ombudsman couldn't possibly have considered. So, for example, if a remedy is going to cost a small district council several million pounds, which would have a detrimental effect on wider public service provision, they may take the view that implementing the decision would lead to worse injustice than the one that the complainant is trying to get us to remedy. “I think that's a right and proper decision that should rest with members. Where they feel that would be a wider, detrimental effect from our decisions, which we couldn't possibly have taken into account. But the circumstances in which they can make that decision and the criteria in which they can make it is actually very narrow. “There's insufficient understanding of just how small and exceptional that situation is. And I'd say there is an Governments in the past have offered us the opportunity to have binding remedies and we've argued against that because fundamentally, I shouldn't be substituting my view for that of elected members. At the very end of this process, it has to be subservient to local democracy and I think that's a really, really important part of how it works.