Local Government Lawyer Insight February 2018 LocalGovernmentLawyer 12 important role for monitoring officers to advise members to make sure that they are properly advised not to go beyond their remit and acting unlawfully.” Reporting lines Another important role for monitoring officers, King says, is to issue a s5 report (under the Local Government and Housing Act 1989) for members when the Ombudsman has found or is investigating maladministration. In other respects, the use of s5 reports for in other contexts is regarded by some monitoring officers as the nuclear option, but King says that this has meant its use for cases of maladministration has become limited. King has recently pointed this duty out in his annual letter to local authority chief executives and he is keen that monitoring officers are also aware of their duties in this regard, which he says can have a very beneficial affect on an authority’s governance. “What the Act says is that where it appears that the authority has acted, or is likely to act, in a manner that constitutes maladministration or service failure and where the Ombudsman is conducting an investigation, it should be reported to members. That's not an extreme act or unusual act, that's a duty which would be triggered in most authorities several times a year following day-to-day findings that our office would make. “It's not necessarily just huge systems failure - it can be day to day failings in service provision where individual people are affected so that duty is triggered very frequently in most authorities. But I don't think that some monitoring officers think that they have this duty to report this to members. I don't expect the monitoring officers to run to members with a s5 report every time there's been a misaddressed letter that we criticised the council for.” In practice, rather than issuing a s5 report on each occasion, King suggests that monitoring officers could produce a periodical composite report for members, whether that be on a quarterly, six monthly or annual basis. Additionally, he would also like to see monitoring officers establish some form of warning system from other people in the authority, such as heads of service and the complaints team, so that members would be informed about more potentially serious cases of maladministration and to provide an early warning for the MO if any part of the council was minded to reject a report. “The s5 duty doesn't have to feel like an onerous task, nor does it have to feel like a nuclear option,” King says. “I think it's quite a flexible instrument which the monitoring officer can use intelligently to make sure that he or she can head off problems with difficult complaints. It can also bring learning to the attention of members in a more constructive and positive way, whilst making sure that he or she has fulfilled the duty to report.” A critical friend The relationship between the Ombudsman and local authorities has not always been a harmonious one, but King insists that the ultimate purpose of his organisation is to help local authorities to provide better services rather than simply to censure them. “Clearly we kind of have a dual relationship with the authorities. On the one hand, we are sometimes in a position where we are standing up in public being critical and that won't stop. It's essential that we do that to fulfil our remit. The other part of the role is about effectively working alongside local government as a critical friend, to say, we've got a whole bunch of data and a whole bunch of learning here where we can help you both improve your complaint handling, but also help you improve some service areas. Last year we made about 4,000 recommendations to put things right and I want to put more and more emphasis on those service improvement recommendations that we made.” To this end, the Ombudsman has been producing regular thematic analyses of complaints received and the decisions it makes to help local authorities avoid making the same mistakes. It is also working to improve the quality of feedback to local authorities when complaints are made, creating more sophisticated suites of data and information to help local authorities with managing their services and providing more training on complaint handling to local authorities. “That's really important to me,” Kings says. “If all we ever do is handle individual complaints and put individual complaints right, then effectively we are only doing half our job, and there's a question whether that's good value for money. The key thing for me is that we are seen to be adding value to service improvement in local government. “It's very interesting that when I talk to people at the DCLG, Local Government Association or Solace, I find that a lot of the issues that we're dealing with when we see the context for our complaints are absolutely the things that are on their agenda too. So there is a clear triangulation between the evidence and the experience we see through complaints, and the other kind of issues which are on local government agenda. The value of investigation of complaints is a part of the evidence base for local authority's decision making and perpetual improvement.” Finally, another aim of King’s term of office is to improve the relationship between his office and local authorities. This will see positive commentary from the Ombudsman highlighting local authorities who it feels are good at complaint handling or who have a constructive approach for dealing with a complaint, or who have invested in training. In addition, the Ombudsman has already started to include positive comments about local authorities’ complaints handling in his annual letters to chief executives. “I think it's really important that we have the courage to praise local authorities as well as criticise them,” King says. “I want to emphasise, as that Yellow Pages advert used to say, we're not just here for the bad things in life. I want to try and, where we can, emphasise the positives as well.” Derek Bedlow is the publisher of Local Government Lawyer. “What the Act says is that where it appears that the authority has acted, or is likely to act, in a manner that constitutes maladministration or service failure and where the ombudsman is conducting an investigation, it should be reported to members. That's not an extreme act or unusual act, that's a duty which would be triggered in most authorities several times a year following day-to-day findings that our office would make.”