Insight Local Government Lawyer Insight February 2018 9 “Because that's not the sexy part of transformation, sometimes that's pushed to the side. We’re hugely supportive of the lawyers trying to assert proper governance models over these new developments. I'm absolutely not trying to stand in the way of creativity in service provision, but it will come back to haunt us all if we don't have proper governance in those new arrangements. You can outsource the contracts but you can’t outsource the responsibility.” King also sees some potential issues arising from the commercialisation agenda, not least the potential conflict of interests that may arise if an authority is fulfilling its duties as a public body and as a ‘commercial’ provider of services at the same time. “Sometimes the overlap between the modes of operation can lead to problems,” he says. “We’ve seen that in a number of complaints around the provision of social care, where one part of the authority is behaving in a traditional paternalist way while another is saying that this is a commercial arrangement and that the rules of contract apply.” From a complaints perspective, authorities also need to be aware of the change in relationships that the introduction of charges for previously free- of-charge services can create, especially if the nature of the service subsequently changes too. “The public feel that they've got straightforward service contracts and don't accept [unilateral changes],” King says. “The public's expectations are very, very different if they're paying for the service. There are some new realities around commercialisation which some authorities deal with a lot better than others.” Pushing the boundaries The commercialisation agenda is also taking many local authorities beyond just charging for previously existing services and into new areas of commercial activity, fuelled by the need for more revenue. The question this raises for the Ombudsman is whether its jurisdiction should follow local authority activity that goes beyond the traditional boundaries. In theory, King says, the answer is yes but in practice the his office is unlikely to be spending too much on dealing with complaints about the service at a council- run golf club. “In the past, the key question we asked ourselves is, is this an administrative duty of the local authority? If it is, we'll look at it. If it's not an administrative duty, we won't. “But I think that concept Is probably redundant these days. I mean, local authorities have now got a general power of competence, and potentially everything is, if not a duty, a function of the local authority. So potentially we could look at absolutely anything a local authority does, but I think that where we draw the line is where a local authority is involved in something which is well outside their normal role as a public body, we would probably exercise discretion not to investigate complaints. “So while we would always be looking pretty carefully at some of the more novel commercial enterprises that local authorities are engaged in, I think we would exercise common sense discretion about taking complaints about activities that the local authority just happens to own and run as a commercial operation.” The Ombudsman created a ‘triage’ function at the start of the decade following a 37% cut in its resources imposed by the coalition government. This considers complaints against two criteria - does the Ombudsman have the legal standing to investigate the complaint and does it fall it fall within the discretion of Ombudsman? The criteria applied to this process are outlined in its Assessment Code (www.lgo.org.uk/information- centre/staff-guidance/assessment-code) the introduction of which, King says, has resulted in cases being accepted or rejected for investigation much more quickly than in the past. Amongst the tests in the Assessment Code is to ask whether an alternative legal remedy is available to the complainant. However, exceptions are often made even where the option of judicial review is potentially open to a complainant. “In practical terms, it’s not reasonable to expect a member of the public to judicially review the local authority every time they have a problem,” King says. “There was a landmark case in 2003 in which the judge asked the claimant in a judicial review why he hadn’t made a complaint to the Ombudsman before bringing JR proceedings. That’s the key case for us in considering whether to take on a complaint that could go to JR, although there are quite a few scenarios where we would say that JR would be more appropriate, such as community- based actions, and will decline to accept a complaint.” Transparency King says that the Assessment Code is just one part of a wider effort to be more transparent about the whole process of adjudicating on complaints. For a number of reasons, local authorities sometimes struggle to understand the role of the LGO and its approach to investigations. Firstly, The commercialisation agenda is also taking many local authorities beyond just charging for previously existing services and into new areas of commercial activity, fuelled by the need for more revenue. The question this raises for the Ombudsman is whether its jurisdiction should follow local authority activity that goes beyond the traditional boundaries.