Unfit for purpose: The Welsh Local Government Ombudsman

I am presenting a clear case of maladministration by the Brecon Beacons National Park Authority.

The Authority acted unreasonably, irresponsibly and unfairly but refused to react to any complaint until they came up against a determined solicitor and counsel's opinion. Even then, their actions were late in coming and quite inadequate. In addition, the cost to me, emotionally, physically, and financially, was substantial.

The obvious recourse to such behaviour appeared to be the Ombudsman. Little did I know: I found myself ground under by obtuse procedures, lack of understanding, ineptitude and general inability to carry out the duties for which the office was established.

I find myself in total agreement with the councillor who wrote on this site about the complete and utter incompetence of the Ombudsmen or women. They seem unable to grasp obvious facts and get caught up in irrelevant issues or those that they manufacture themselves in order to obscure the real point involved. There is no complaints procedure, and the only way to attack is to engage in an expensive, and probably futile court action.

Whether the office-holders are ignorant, incompetent or simply malign, they are of no value to people who would like to see them fulfil their function of helping to produce a fairer society. Unless the institution can be improved, we as a nation would be better off without them.

What follows is an account of a case of gross maladministration on the part of the Brecon Beacons National Park Authority and the way the Ombudsman mishandled a complaint. Every point made can be documented.

The Facts

Pictures: Photos 1-3 show the proximity of the two properties. Photos 4-5 show the view from the main bedroom of the property into the main bedroom of the barn. The windows are roughly 8 to 10 feet apart, whereas the Park's rules clearly state that the distance in such circumstances must be at least 115 feet.

I. The Park and unfulfilled duties

1. In 1989 I was interested in buying a property near Brecon. The adjacent barn already sold, was derelict, and I considered it vital to know how it might be developed, especially since the distance between the two properties was less than six metres. I consulted at once with the National Park about the plans that had been approved, and on the basis of the information they provided, continued with the purchase. I was told then and subsequently that the files would be flagged and that I would be notified of any proposed changes.

In addition, the Park's staff were at that time very helpful when violations were pointed out to them. They took the trouble to investigate, determined that my complaints had merit, and the owner of the barn at the time, Mr D, was directed not to proceed with any changes not in the plans that had been approved by the Park. Moreover, the Enforcement Officer wrote to the estate agents handling the property, pointing out that they were using building regulations plans rather than those approved by the National Park.

2. The helpful officers were, unfortunately, replaced in the years that followed. In late 1997, the barn had new owners, Mr and Mrs X. They proceeded with the very plans that Mr D had been directed by the then Area planning Officer, P.M., not to use. We were told by his successor, Mr Y, that nothing could be done about that.

3. It is highly relevant that at a meeting on site with Mr Y, he stated that there was nothing to be done about a disputed dormer window that had already been approved. Taking advice from a planning officer another authority and from a solicitor, it appears Mr Y was wrong on that point. At the same meeting, he said several times that it would not have been permitted under the stricter rules in force since the decision was made. The statements were to myself and my partner, and I referred to them on several occasions, to Mr Y's superior officer, to the ombudsman, and to my solicitor. The point was never challenged until it became a matter of some import when it appeared that planning permission would have to be sought a second time. Then Mr Y denied having said such a thing, and of course his word was accepted despite the evidence to the contrary.

In fact, it would appear that every effort was made to ensure that the plans being illegally used would be given approval without anyone being the wiser.

4. Despite having promised that we would be kept informed about developments, we were told absolutely nothing about what was being done until we received information about 'a' (singular) development change that Mr and Mrs X wished to make. The documents attached to the letter showed many other alterations to the original plan. Indeed, Mr Y's own report to the Committee referred to 'a number of other changes', changes which were far more important to us, but that fact was never given to the Committee.

II. The first Committee Meeting

1. An important point is that there was never a formal application for the changes sought, a fact my solicitor pointed out to the Park's solicitor. The paper submitted by the Park officers was incomplete and misleading. Counsel retained by us at a later stage agreed by noting that the paper had been deficient.

2. That there were two sets of plans on file was admitted even by Mr Y. One was approved, and the other not, but it was the latter that was being used by the architect for Mr and Mrs X.

3. The Committee were not informed either verbally by Mr Y or in the papers presented to the Committee that Mr and Mrs X were working to unapproved plans and that the document submitted to them was in fact based on the building regulations blueprint. The officers appear to have engaged in subterfuge to persuade the Committee to rubber-stamp their proposal in order to bring the two sets of plans into accord.

4. The presiding officer (subsequently convicted of dishonesty) failed to consider both the photographic and documentary evidence we had submitted and a letter from a Committee member unable to attend that day, supporting our request for a site visit. At all other meetings I attended, similar pieces of information were made available to the meeting. The cursory nature of consideration is indicated by the minutes.

5. We had been in touch with one member, Mrs Z, who had assured us that she would see that the Committee considered our request. She refused to accept our invitation to inspect the site, but she had already visited Mrs X. From that side of the fence there was no way that she could have seen the true nature of the problem and realise what our solicitor called 'the horrendous invasion of our privacy'. Not only did she not make any effort to see that the matter was discussed, but she failed to let the Committee know that she had acted in a way that indicated bias. When challenged, she simply insisted that he had acted properly.

III. Lack of Cooperation from the Authority

1. The Park did their best to ignore any additional submissions from us. They insisted that we had had access to everything on file, despite the fact that we knew that to be untrue. It took a solicitor's letter to get them to release documents that proved the validity of points that we had made and that they had denied.

2. When the Park solicitor (subsequently sacked for a serious offence, apparently accepting a bribe) said that he had no intention of responding to our requests, my solicitor was forced to take a more drastic measure. He pointed out that the planning conditions for the barn had not been adhered to and that the permission had consequently lapsed. That would mean a new application would have to be made. The Park solicitor refused to accept that argument, and we asked him to seek a second opinion. He bluntly refused, so we had to incur the expense of seeking counsel's opinion. He supported our position and said that its validity ought to have been apparent to anyone involved in the field of planning law.

3. Secondly the Chairman argued that we would not have won a legal contest (and he smugly whispered to me on the way from the room, when my witness was not present, 'you are not the only one who can have counsel you know') If that were indeed the case, why did not the Park refuse to accept the opinion of our counsel and put it to the test?

4. Everyone in the Park continued to be obstructive. They insisted that they would never make the concessions asked, but having said that for months, they suddenly caved in on major points. It seems very odd that they surrendered at precisely the same time that the Ombudsman submitted that we had got a large part of what we wanted, so he would not investigate. A quid pro quo?

5. The fact that not a single member of the Committee was willing to respond to any communication would suggest that the Park solicitor was orchestrating the whole matter from the centre.

6. My protests to the Committee Chairman and Vice-Chairman finally elicited a response, but a very inept one. I was told after the fact that a 'briefing' had been held and it was decided that there was no case to answer. I was not notified of the 'briefing' and was certainly not given a chance to present my case or counter the evidence of the officers. What kind of justice allows the accused to act as judge and jury?

IV. Dodgy Personnel

It is a fact that two of the people most involved in this affair have subsequently been shown not to have exemplary characters. The then-chairman was convicted of dishonesty, and the solicitor was suspended and subsequently, presumably sacked. Although he has since been replaced, the usual conditions of secrecy in local government means that the public are unaware of details. He had been virtually the sole voice of the Park during these events, and the fact that he was dishonest in one case would seem to have a bearing on whether my own was properly conducted. Would it not be important to determine whether the Park's decision could be considered 'safe'?

V. Summary

My solicitor, who worked for a firm with one of the largest planning departments in the country, said he had never seen anyone receive shabbier treatment and wondered what I had done to deserve it. He added that he had rarely met such a hostile environment. These and other points were set out in his correspondence with the Ombudsman.

The cost of getting the Park to act properly was more than £10,000, and award of that amount would not begin to cover the worry and mental agony that was incurred.

Perhaps the most galling aspect of the matter is that I, as a prospective buyer of a property, had taken the trouble to find out what plans had been approved for the property. It wasn't as if I had gone in blindly. If it is impossible to rely on planning permissions and promises made by the Authority, what is the point of having any rules at all? It is interesting that at a later stage, even the short-sighted Ombudsman accepted that the Authority appeared to have one set of planning rules for general use and one for the elect; in that case, a former councillor.

In addition, it should be noted that the only way out for me was the legal pathway, which was very expensive. The Authority, on the other hand, had a firm tax base to pay for their cover-up. I had to pay twice; as a litigant trying to obtain justice, and as a tax-payer for the Authority's opposition. <

The Ombudsman

My struggle with the Ombudsman was, if anything, worse than that with the Park Authority. I first filled in a very small form issued by his office and asking for a brief précis. The questions posed were on a very small leaflet and had roughly three lines for each query. Obviously I couldn't write any detail, and knowing that I would be asked for more information at the appropriate time I simply said enough to set the stage. That was to come back to haunt me as the Ombudsman frequently said that I hadn't mentioned something in my original submission. (In three lines, on a sheet of paper roughly 12 centimetres wide??)

The first reaction of the Ombudsman was to try to wriggle out of the complaint. He noted that my solicitor had raised the possibility of a judicial review, and in that case he would have no authority to investigate. I hastily assured him that that was a remote possibility and would be considered only if all other options were to fail.

After months of delay, we were told by the Ombudsman that he would not investigate my complaint, despite my initial submission and a number of additional documents sent to him. There was a good deal of further correspondence which on his part became more and more otiose, arcane, and obtuse. The gist of his letters, as far as I am able to discern, claimed two reasons for his decision. The first was that I had got what I wanted. That was certainly not the case, which I repeatedly pointed out to him, but he continued to argue in effect that he knew better than I what I wanted to achieve. He completely disregarded the fact that even what I did achieve was at great cost to myself to get the Park to act reasonably and responsibly. Secondly he argued that many of my contentions were beyond his remit.

He was approached on my behalf by a member of the Privy Council, by my local Member of Parliament, and repeatedly by my solicitor. All of them thought that there were substantial and self-evident reasons for him to investigate and that his arguments for not doing so were quite fragile. Nonetheless, he refused to answer specific queries that were put to him.

As an example of those I quote from my solicitor's letter:

I would like, please, your specific comments as to why the following matters, originally itemised in my letter of 29th July, are not sufficiently serious to point to prima facie maladministration, and at the very least further investigation (sic.)

1. The fact that if it were not for my clients, vital facts and information that the Park should have known about would not have been taken into account by them.

2. The Park's initial failure to take into account detailed adopted planning policy, and then their continued disregard of that policy, even after it had been drawn to their attention.

3. The apparent change in the planning officer's appreciation of the merits of the conversion from his indication that the dormer window was an 'eyesore' in February, to the indication in the June planning committee report that all aspects of the conversion were fully appropriate.

4. The apparent lack of understanding on the part of the officer who prepared that report of the implications (in terms of setting a precedent, effects on neighbours, etc) of allowing a totally unauthorised conversion to remain unregulated, until this error was pointed out to him.

5. The length of time it took for the Park to accept that the planning permission had lapsed, and, linked to that, their basic failure to administer their planning powers properly by ensuring the submission of an appropriate landscaping scheme before development commenced in 1991.

6. The consequent substantial expense and inconvenience, not only monetary but emotional, that my clients were but should not have been put to.

7. As to the issue of the status of the 1986 consent, I agree that this is a legal issue. That is not the point. It is the cost that resulted to my clients from the Park's refusal to accept that the consent had expired, notwithstanding that this was patently apparent and in my view should have been within the knowledge and understanding of a solicitor practising in the realm of planning law. As it turned out, [the solicitor] refused to go to Counsel to test my view of the law. My clients were therefore forced to obtain Counsel's advice themselves, which predictably fully endorsed my view, which [the solicitor] only then accepted.

I am concerned when I read that you believe the dispute was resolved through [the solicitor's] acceptance of my submissions on this point. This belies a very serious misunderstanding of the issues and basis of the ombudsman complaint. Again, I am concerned when you allude to the fact that the officers' appraisal of the proposal in the light of pertinent planning policies did not accord with my interpretation. That is not what is being complained about, save insofar as I do not understand how failure to adhere to a specified standard adopted within a local plan by such a margin (115 ft, compared to 8-10 feet) can be interpreted anything other than adversely against the Park.

Finally you refer to the fact that you would not be justified in pursuing the allegation of unreasonable delay in isolation. If you take the trouble to read my letter of 29th July again, you will note that nowhere in it is there any allegation of unreasonable delay. The issues of concern are itemised above and I would, please, like your appreciation as to why they do not constitute matters that are worthy of addition investigation.

A letter was also sent on my behalf by an MP who received a crude response in which he was instructed to tell me to back off. As the MP wrote to me 'the letter can safely be described as "curt". He is not going to help.' He went on to say why he thought the Ombudsman was quite wrong but stated that it would be futile to write to him again. He went on to say, in what I consider to be a telling indictment of Ombudsmen in general and Elwyn Moseley in particular, 'it might be counter-productive should I, or you, have need of his services again'.

Click here to read one of my letters to the Commission for Local Administration in Wales. (Then known as the Local Government Ombudsman for Wales but now known as the Public Service Ombudsman for Wales.)

What a travesty of what might have been an outstanding institution!

The Ombudsman is not the only Culprit

I have written about this case because it seems to me to show up the utter failure of an institution established to help the citizen fight unjust behaviour on the part of governmental agencies. It is quite clear that the institution as it stands, has failed utterly.

One would like to think that there are ways of getting the Ombudsman to fulfil his duties and obligations, but judging from my experiences, that is not the case. I should like to refer to further actions I took.

I. The Media

Attempts to interest the media were totally unsuccessful, and in one case counter-productive. Welsh broadcasters, as another poster has shown, are too much a part of the network to blow the whistle. National newspapers find local issues (particularly Welsh ones) not worth attention. The main source I hoped would provide publicity was the main national newspaper in Wales. I contacted the local reporter who was interested enough to call and discuss the issue at length. I had received in the post on the morning of the meeting two items which were important to my case. I showed them to the reporter who asked if he could take them. I noted that I would make copies the next morning and get them to him. He insisted that he wanted them immediately in order to show them to a person he was meeting the next day. He said he would be back in touch with me just after, so there was no need to worry.

To my eternal regret I let him have the papers, and I haven't seen them since. I heard nothing from him for quite a time, despite telephone calls and e-mails. Finally, he did respond in order to say that he had been moving house and the documents appear to have been lost. His reward was to be given a top job on the same newspaper in Cardiff. I have tried to learn whether the man to whom he was going to show the letters might have copies, but he refuses to respond to any e-mails or letters.

II. The Freedom of Information Act

Like the Ombudsman's office, the only point I can see in the working of this act is that it provides employment for an infinite number of clerks.

The Ombudsman's office claims to be exempt from the requirements of the Act. Any attempt to clarify the position is only met by repetition from the Ombudsman and obscurity from the FOI office.

I have also tried to get more information that I know exists from the National Park. They insist that I have seen everything they have. If that is the case, they have not kept very good records, since I have never seen notes that would support many of the claims they have made. For example, the planning officer refers to a number of telephone conversations, and I know from Mr and Mrs X themselves that they were in touch many times by telephone. There are early records of telephone conversations, but strangely those relevant to this dispute seem not to exist.

My experience with this Act is totally disillusioning. Exemptions and denials remove all hope of clarification.

IV. The Courts

In a final attempt to obtain justice I went to the County Court. Although my expenses were two or three times higher, I claimed only £5000 in order to be sent to the small claims division. I received enormous and dedicated support from the Brecon Advice Centre, and I shall always be grateful for that, but the court is a different story.

At the first hearing, the judge seemed to be inclined to give my complaints serious consideration, and when the arguments put forward by the Park's solicitor were rejected, she left the room in a huff. Later, when attempts were made to arrange a further hearing, the Park always found it impossible to attend, until another judge was brought in and, oddly they were able to make the time.

The hearing was an absolute travesty. The Park were represented by the solicitor and a chief planning officer who had not been at all involved in the case until that time. They were both permitted to speak, but I was told that on my side, it was either the representative from the CAB or myself; not both.

The hearing was set to last from 10.0 to 1.0, but nearly all the time was taken by the Park and the judge in irrelevant conversation. He heard them in full, and given the time that was available, it was totally unacceptable for the judge to indulge his whims. When the planning officer mentioned some of the work he had done, the judge expressed his interest in hearing more because he too had once been a planning officer. That was interesting to me, since it showed the kind of bias that I could expect, but the subsequent conversation had nothing at all to do with the case. After those reminiscences between the judge and my opponents the judge announced that he hadn't time to consider my submission, as the courtroom had to be ready for the next case. Fortunately, I had written a lengthy submission which I was able to distribute to all present, but I doubt if they were ever read. There was certainly no mention in the opinion of any of the legal points I had made or the precedents I had cited.

I think this is the poorest excuse for a court proceeding that I have ever encountered, either in person or in literature. The judge made a number of insulting remarks aimed at me personally, so many that my adviser afterwards said he hoped I hadn't been too offended and that I should disregard them.

IVA. The Commission for Constitutional Affairs

I mention this organisation simply for the sake of completeness, to indicate how futile is the search for justice. I wrote to the CCA to complain about the judge's behaviour. The reply, much as I expected, was meaningless. The department cannot consider particular decisions or how the proceedings were handled. What then can they do? They can only consider 'the way the judge behaved when dealing with your case'. Although I had tried to show that in my complaint, it was clear that any further action would be useless, since it would be 'a judge's' word against mine. At least I thought that until it was mentioned to me by a lawyer friend that the hearing would have been recorded. I attempted to get the recording but was told it would cost a great deal to get it transcribed, and no one ever got back to me from the court in order to start the proceedings.

The other option suggested by the CCA was to seek legal advice and go to appeal. Another contribution to the financial health of the legal profession.

So Much for all the organisations designed to 'help'

L Johnston

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