The Bachin's case

Introduction

I decided to write this article after reading the recent reports issued by the Local Government Ombudsman (LGO) and the Parliamentary & Health Service Ombudsman (PHSO) regarding the Balchin case. The Balchins were recently awarded a total of £200,000 in compensation, (£100,000 from the Department of Transport and £100,000 from Norfolk County Council), following a 20-year battle for justice with the support of their MP, Sir Michael Lord.

This case, contrary to what the Ombudsmen state, is not in fact unusual. Hundreds, if not thousands of people across the country have suffered, and continue to suffer, similar injustice to Mr & Mrs Balchin. What is unusual about this case, however, is that Mr & Mrs Balchin had the tenacity to keep fighting until they received the Justice they so richly deserved. Something that most people are unable to do. The Parliamentary Ombudsman’s part in this case is interesting, as well as deplorable. However, for reasons that will become clear, this article focuses on the pivotal role of the LGO.

I am going to demonstrate that:

Mr and Mrs Balchin suffered nearly fourteen years of additional injustice because of serious errors of judgement by a Local Government Ombudsman (LGO).
the LGO accepted the Council’s statements without validation or investigation and then worded his decision letter in a way that blocked any reasonable chance of the Balchins being able challenge his flawed decision.
the current Local Government Ombudsman has managed recent events in a way that conceals the true reason behind the prolonged plight of the Balchins.
this is not the isolated case the Ombudsmen would have us believe.
the Government could remedy the situation to ensure this never happens again.

Many others have even suffered more injustice at the hands of the Local Government Ombudsman than at the hands of the Public Authority they had originally complained about. Although many of these people are still fighting for justice, many have had to give up their fight because of poor health or other personal reasons. Therefore, I dedicate this article to them.

The serious error in judgement by the LGO during 1991

I refer to paragraph 7 of the latest LGO report regarding Mr Balchin’s previous complaint. ‘On 27 April 1991 Mr Balchin referred the Council’s handling of the matter to the then Local Government Ombudsman, who declined to investigate the complaint, setting out his reasons in a letter dated 31 May. He was told that the complaint was out of time as regards the Council’s refusal to purchase in December 1987, and that the Ombudsman could see no fault in the manner in which the Council had taken its subsequent decision not to purchase in June 1990.’ (My emphasis). This statement immediately throws up an interesting anomaly. If the LGO declined to investigate, then how did he know there was no fault in the manner in which the council had taken its subsequent decision not to purchase in June 1990? There are only two answers to this conundrum.

The LGO did in fact investigate; however, if that is correct why did the LGO send a letter to Mr Balchin declining to investigate something that he had investigated? Furthermore, between the submission of the complaint and the LGO response there just wasn’t enough time to properly investigate the matter. So it is doubtful if any investigation took place and this scenario can be ruled out.
The LGO did not investigate; however, if that is correct, how could he be sure that there was no fault in the manner in which the Council had taken its decision not to purchase the property?

The answer is, quite simple and unfortunately for the complainant, a very common practice. They just take anything the Council say at face value. In essence, the Council just tell the LGO they have done no wrong, and the LGO is all too often happy to accept that without further question.

Not exactly a fair and impartial way of handling a complaint, but nevertheless, I have a letter from a Deputy Ombudsman stating that he sees nothing wrong in doing just that. So it is more than likely that the Council just told the LGO that there was no fault in the manner in which they took their decision, and the LGO accepted their word. We will return to the reason why the LGO decided to write the refusal letter in the way they did. However, for the moment I want to concentrate on the statement ‘the Ombudsman could see no fault in the manner in which the Council had taken its subsequent decision not to purchase in June 1990.’

Now refer to paragraph 89 of the same LGO report,

…[Council]..Members were provided with advice previously offered them by officers in December 1987 and June 1990. The advice in the latter report included the paragraph on “Precedent” that was underlined in its “Conclusion”. This argued that exercising a discretion in favour of Mr Balchin would encourage others in potentially similar situations also to make claims. It seems to me that, in considering whether to exercise a discretionary power, generalised concerns that doing so for one applicant may lead to claims from another have no place. That is a reason never to exercise any discretionary power the Council might have in favour of any individual. In fact, of course, the Council has to be in a position to have full regard to individual circumstances and to respond accordingly. This advice effectively deterred Members from giving any proper consideration to Mr Balchin’s true circumstances. It fettered the Council’s discretion, and that was maladministration.

Therefore, the current LGO quite clearly contradicts his predecessor. The Council were in fact guilty of maladministration during 1990. Imagine if the then LGO had also identified maladministration as the current LGO has done. The Council would have had to reconsider their decision not to purchase the property. The Council could not have used the same reason for refusing to buy the property again because the LGO had already decided it would be maladministration. Therefore, it is likely that they would have decided to buy the property. The only other option was to come up with a legal excuse not to buy the property. Something that they have never done to this day.

The LGO typically takes about 12 to 15 months to issue a report, then they give the Council some 3 months to respond. As a result, the Council would have had to reconsider their decision between April 1992 and October 1992 or suffer a second LGO report. In any event, even if the Council had reached the same decision based on different reasons it would have still been possible for the Balchins to submit subsequent complaints to the LGO.

However, history proves that the LGO did not find a fault in the manner in which the Council had taken its subsequent decision not to purchase the property. So not only did the Council think they were right they now had an Ombudsmen actually agreeing with them. No doubt the reason for the Council’s ongoing reluctance to change their decision. This serious error of judgement by the LGO together with their implied support for the Council’s unlawful decision during 1990 was to have catastrophic repercussions for the Balchins.

In essence, the LGO set in motion a completely unnecessary chain of events that would take some 14 years to resolve. If the LGO had done their job properly, then Mr & Mrs Balchin would have had no reason to take a complaint to the PHSO.

LGO decision Letter

The insidious wording of the decision letter blocked any chance of the Balchins’ being able challenge his flawed decision. It is important to note that an LGO’s decision is not open to an appeal. The best a complainant can expect is a Judicial Review of an Ombudsman’s decision. However, the LGO has an absolute discretion over whether to initiate an investigation; therefore, a Judicial Review over his refusal to investigate the complaint would have been difficult, if not impossible.

If, on the other hand, the LGO had investigated the complaint and taken the decision that there was no maladministration, then the Balchins would at least have had recourse to a Judicial Review. A Judge would have insisted that the LGO think again, as they did with the PHSO. (Note: it was originally a Judge that pointed out that the Council’s 1990 decision was fettered and not an Ombudsman.)

Therefore by writing the letter to the Balchins in the way he did, he had also effectively blocked any chance of a Judicial Review of his decision.

The Balchin’s case now proves that an LGO can take a decision that has catastrophic consequences on the lives of ordinary people, block any right to justice by the insidious manipulation of their decision letter and then remain totally unaccountable, by way of an appeal or otherwise. That is exactly what happened in the Balchin case and is exactly what has happened to thousands of other people.

Manipulating events

The LGO terminates many complaints in the way they did with the Balchin’s case. Normally this is the end of the matter, because most complainants have no other viable source of justice, there being no right of appeal and little if any chance of being successful with a Judicial Review.

Even worse for the complainant, the Council is now free to flaunt the LGO’s implicit support of their unlawful decision. Furthermore, it is then practically impossible for the complainant to pursue their own case because, without an investigation, they cannot get hold of the necessary Council files or evidence.

Unfortunately for the LGO, the Balchins managed to continue their fight for justice through the PHSO. Although, the reports also prove that the Parliamentary Ombudsman was not much better than the Local Government Ombudsman, fortunately for the Balchins, the PHSO did not have the same foresight as the LGO and failed to block a Judicial Review. Therefore, they left the way open for continued Judicial Reviews.

The case, together with a succession of successful Judicial reviews by the Balchins, was to become a significant embarrassment to the PHSO, so during 2004 a move was made by the current PHSO to bring closure to the case. If you analyse the case the PHSO was only suffering the problems that the LGO should have been suffering had the LGO not blocked the Balchins’ right to a Judicial review.

However, if the LGO was going to save the day for the PHSO then it was also imperative that the PHSO help the LGO draw people’s attention away from the reality of the situation. The last thing the LGO needed was the 1991 decision being looked at too closely. No doubt the reason why they decided to investigate the problem from 1992 and exclude the 1991 decision altogether. You scratch my back and I’ll scratch yours so to speak.

Therefore, with a little more slight of hand, the LGO had no need to drag up the fact that his predecessor had been responsible for the whole mess in the first place. Everything nicely swept under the carpet by the Ombudsmen for the benefit of the Ombudsmen.

Not an isolated case

The PHSO made a comment that this was an isolated case. As far as the PHSO is concerned that may be true. However, hundreds, if not thousands of other people have had their lives blighted by the erroneous and unaccountable decisions of the Local Government Ombudsman.

Unfortunately, many complainants do not have the tenacity of the Balchins or the support of such an able MP, and as a result they have given up their fight for justice. However, when you realise that many have had their health ruined, and others have debts running into thousands of pounds or failed marriages due to the pressure of trying to obtain justice through the LGO, you can understand why they had to give up.

I quote from the latest BMG survey into the LGO where one staff member stated `There is reluctance in the organisation to accept that we are human and we do make mistakes.’ Perhaps that is the reason why the current LGO evaded the issue.

A famous Judge once stated ‘justice delayed is justice denied’. My question to the LGO is, why are they denying justice to so many? My question to the Government is, why are you allowing it to happen.?

How could the Government improve the situation

Make all Ombudsmen’s decisions subject to a full appeal.
Replace all ex Local Authority staff in the LGO’s office.
Replace the internal complaints system with an impartial and fair external complaints system.
Make the LGO responsible and accountable for their acts of maladministration.
Stop tinkering around the edges with a Regulatory Reform Order and introduce wholesale reform of this discredited organisation.

Summary

As can be seen, everything that happened since 1991 was as a direct result on the LGO’s predecessor accepting the word of the Council at face value, whilst not properly investigating a complaint of maladministration. That was quite clearly wrong, and wholly unfair.

The current LGO has not criticised his predecessor’s decision. Even though he accepts it was wrong, he has not criticised the policy of accepting the word of a Council at face value, and he has not offered a public apology to the Balchins. Why? Furthermore, whilst the LGOs refuse to acknowledge the undoubted flaws in their organisation, no procedures will be put in place to stop it happening to others.

The citizens of this country deserve better. We have had to suffer significant injustice because of the perverse decisions of an unaccountable LGO for far too long. If the LGO can’t or won’t do the job the Government has given them, then they should be replaced by someone who will.

I just hope the reader realises that we (LGO customers) have to put up with this sort of perverse nonsense all the time. Hence the reason for the article and the existence of LGO Watch to show others what we have to accept in the name of 'justice, LGO style'.

Trevor R Nunn

Footnote

Many others have suffered more injustice at the hands of the Local Government Ombudsman than at the hands of the Public Authority they had originally complained about. Although many of these people are still fighting for justice, many have had to give up their fight because of poor health or other personal reasons. Therefore, I dedicate this article to them.

Tribute

Mr & Mrs Balchin, together with their MP, deserve the highest accolade for their tenacity and determination in seeing their case through to its conclusion.

Associated links

The Local Government Ombudsman, Jerry White, and Parliamentary Ombudsman, Ann Abraham, both published reports today (12 October) setting out the results of their investigations into the Balchins’ long-running complaint. Mr Balchin said that he had lost an established profitable business, his home and his assets, and that both he and Mrs Balchin suffered from stress, worry, anxiety and ill health as a result..... The full LGO press release

Local Government Ombudsman’s report into his investigation into the complaint by Mr and Mrs Balchin against Norfolk County Council.The full LGO report

'An elderly Norfolk couple who lost their home and business over a plan to build a bypass 12ft from their property have won record compensation payout in a case involving council maladministration.' The full Guardian article

A COUPLE'S 15-year fight for compensation after their business and their savings through plans to build a bypass 12 ft from the bedroom window of their property, will enter its final round tomorrow.

The treatment that Maurice and Audrey Balchin received over the years from Norfolk county council, the Department of Transport and the local government ombudsman has been branded "a disgrace" by a High Court judge.The full Telegraph article

Highlights

The LGO set in motion a completely unnecessary chain of events that would take some 14 years to resolve. If the LGO had done their job properly, then Mr & Mrs Balchin would have had no reason to take a complaint to the PHSO.