The Case of Mr and Mrs Wain verses Stoke-on-Trent City Council
Malcolm Wain
Our problems
began when Stoke-on-Trent City Council approached us to
buy two houses we owned, in a Council declared clearance area,
our estate agent agreed a price but unbeknown to us the Council did not
have the money to honour that agreement, it was to be twenty two months
before we were paid. The City Council was described by the
District Auditors as a regime that was: - Mismanaged- Inadequate-and ill Judged the
report strips bare a system of secrecy, bad management and massive
financial risk, bad news was watered down or kept from members and the
Council exercised little control over spiralling costs, it was a
catalogue of inexcusable mismanagement; inexplicable decision making,
secrecy and miscommunication. The City Council tried to hide the true
picture from its members and the people of Stoke-on-Trent.It was against this background of a Council that we complained to the Local Government Ombudsman about the Councils actions in offering to buy our two houses when they did not have the money to do so. After 18 months she reported back and said she did not find the Council guilty of maladministration for reasons beyond the Councils control the fault lay with Government Office west Midlands for not notifying the Council where money could be spent, seven times in her report The Local Government Ombudsman refers to the Government Office West Midland as being at fault.
On the basis of the Local Government Ombudsman report, with the help of our MP we had The Parliamentary Ombudsman Investigate the Government Office West Midland for not notifying the Council on where the money could be spent, they reported back and totally refuted the claim put forward by The Local Government Ombudsman and said the Council should have been fully aware of where the money could be spent before making an offer for Mr and Mrs Wains houses as the processes and timing had been in place for years. and that the Council therefore would have been very familiar with those. The papers before me confirm Government office West Midland account.
We now have two Government bodies coming to a different conclusion on the same case!
This diversionary tactic, used by The Local Government Ombudsman in collusion with the City Council, by pointing the finger of blame wrongly at the Government Office West Midland ensured we were out of a three month time limit to get a Judicial review on The Local Government Ombudsman Report, in turn this also ensured that the City Council would not have to appear before a Court of Law to defend their actions, nor the Local Government Ombudsman to defend theirs.
These diversionary/delaying tactics have been a common ploy throughout our case, our estate agent had to resort to delivering letters by hand to the Council and that did not always ensure a reply, in one instance it took the Local Government Ombudsman six months to reply to a single letter from our solicitor and only then after having been prompted three times by him at our expense.
Our Solicitor and our MP asked the Local Government Ombudsman to reinvestigate our case on the strength of the Parliamentary Ombudsman Report she refused to do so saying, The Local Government Ombudsman cannot reopen the complaints investigated earlier. That is because, once a formal report is issued, the law does not allow this to happen. The Ombudsman would oppose any application to the Court for this matter to be reopened.
We instructed our solicitor to get Barristers advice on procedures for declaring a clearance area, he is an expert in the field and acts for acquiring authorities and claimants.
Barristers
Advice on the Satutory Process
| There is a two-stage process for declaring a clearance area. Under section 289(2B) Housing Act 1985, the Council shall give notice of their intention to declare a clearance area. The notice would invite representations within 28 days (sub-section (2C)). The Council then have to consider those representations and decide whether to declare the clearance area, declare the clearance area with modifications, or decide not to declare the clearance area (sub-section (2F)). To declare a clearance area, the Council must have been satisfied that their resources were sufficient to acquire (subsection (4)). |
This Government legislation is in place to avoid such shambles that followed as described in our report; The Local Government Ombudsman did not address the failure of The Council to complete a statuary process.
The Council on realising they did not have the money to proceed instead of following the procedure of law described above which would have been to not declare the clearance area (subsection 2F) they brought out a priority list and sent out a questionnaire to establish the degree of hardship people were suffering from, as landlords we were not sent a questionnaire and so was not put on the list.
Barristers
advice on the Priority List
| The legal advice was incorrect. Having given notice of an intention to declare a clearance area and being under a duty to consider representations, the Council could not defer consideration of making a declaration indefinitely and would have to consider the effect of such deferral on property owners. Consequently the decision could have been open to legal challenge at the time. |
If a clearance area had been declared, the Council would have been under a duty to acquire the properties and we could have enforced this by serving a blight notice. We would not have been left with the lengthy delay in acquisition and the consequent lack of rent. We would also have had a mechanism for disputing the valuation of our houses in the Lands Tribunal. If the Council had declared not to declare a clearance area, which would have been the correct lawful procedure, the generalised blight over the area would have been lifted and we would have continued to receive rent for our houses and would not have incurred the heavy financial losses and the subsequent sale of our remaining houses.
Having started the statutory process, the Council should have finished it. By leaving the process incomplete and embarking on a voluntary acquisition process at its own pace, we found that the market had collapsed. The only potential purchaser was the Council. We were also left without tenants .and was not paid for our houses for a further 18 months.
The law says the Ombudsman must look for “maladministration. The definition of maladministration is very wide and includes.
1. Failure to comply with legal requirements
2. Failure to deal with letters or other enquiries
3. Taking incorrect action
4. Failure to provide information
5. Failure to take action
6. Failure to investigate
7. Delaying in taking action
8. Making misleading or inaccurate statements
The Local Government Ombudsman does not comment on the legal requirements of the Council in her report, this is surprising as you would think that on starting her investigation she would first establish the statuary requirements of the Council in declaring a clearance area, she either formed her report not knowing of those requirements or ignored them.
Barristers Report
| The Local Government Ombudsman Report fails to grapple with a number of issues, in particular the timing of the intention to declare a clearance area and the August 2001 offer. Its use of colloquial expressions tends to obscure rather than assist the analysis. It is though a difficult step to say that the report is so inadequate as to be unlawful. |
The Local Government Ombudsman in her report uses the phrase (the Council says) nineteen times not much of an enquiring mind here, more of an interview. It must be borne in mind that in England, there are three Local Government Ombudsman all ex Council Officials.
We now put our case to The European Court of Human Rights with emphasis on the three month time limit imposed on us and asked for the opportunity to respond to any representations made by the Local Government Ombudsman or the Council, after two years the Judges of our case at the European Court of Human Rights M Pellonpaa - S Pavlovschi – L Garlicki reported back and upheld the Local Government Ombudsman decision because:-
The Court found that domestic remedies had not been exhausted as required by Article 35 – 1 of the Convention, since we had failed to seek judicial review of the original decision of the Local Authority Ombudsman or/and, if relevant, of the decision of the Parliamentary Ombudsman.
The very thing we had emphasised to the ECHR we did not do because of the Local Government Ombudsman actions in pointing the finger of blame (wrongly) at the Government office West Midland, it was not logical for us to get a Judicial Review on The Local Government Ombudsman Report at that time, by the time The Parliamentary Ombudsman reported back and refuted the claims put forward by the Local Government Ombudsman we were out of the three month time limit to get a Judicial Review, our solicitor applied for a Judicial Review but the Local Government Ombudsman successfully objected to it. We were not given the opportunity to respond to the ECHR.
We now put our case to the Minister for Justice Jack Straw, he said after reading our report, I understand the difficulty Mr and Mrs Wain have experienced and sympathise with the position they are in, unfortunately it is not possible to appeal against the decision of the European Court.
So we now have
Jack Straw saying he sympathises with the position we are in.
The Local Government Ombudsman saying our losses were real and significant and came about through no fault of our own.
The Council saying clearly a difficult situation has arisen.
My Barrister saying The Local Government Ombudsman Report borders on being unlawful.
The Local Government Ombudsman saying she would oppose any application to the Court for this matter to be reopened.
The Minister for Justice saying it is not possible to appeal against the decision of the European Court, this is at odds with the most senior judge in England The Lord Chief Justice Lord Judge who says, British courts do not need to abide by the rulings of the European Court of Human Rights that while courts should always take the rulings of the Strasbourg-based court into account they are not bound by them.
Update
| On June 28th 2010 my case was put by Fair Trials International to the
Coalition Government, they replied saying Mr Cameron and Mr Clegg were grateful for me getting in touch and suggested I seek legal advice!!! Even the most disinterested of people would not make a statement like that after reading this report, they simply do not grasp that the Legal Profession can do nothing for me unless the Local Government Ombudsman and the City Council agree to appear before a court of law, only the Government can enforce them to do that, then my legal advisers inform me I would have every chance of a successful claim for reimbursement for my losses. It is an indictment against government and the judiciary that 780 years after the Magna Carta, a person's civil rights can be removed, without a fair trial before a Court of Law. |
The law also says everyman has the right to a fair trial/hearing we are denied that right as we cannot get our case heard before a Court of Law...
Although no one disputes our losses, we are blocked from getting a lawful decision before a Court of Law purely on our missing the three month time limit through no fault of our own but by the actions of the Local Government Ombudsman wrongly pointing the finger of blame at the Government Office West Midlands.
Our losses were not occasioned by an act of God.
It beggars belief that in 21st century Britain this can happen, are we now a banana republic?
Footnotes
Lord Justice Scott in Horn v Sunderland Corporation. (Scott L. J. in Horn v. Sunderland Corporation. [1941] 2 KB 26).
Compensation “is the right to be put, so far as money can do it, in the same position as if his land had not been taken from him. In other words, he gains a money payment not less than the loss imposed on him in the public interest, but on the other hand, no greater”
This principle is not unique to compensation for compulsory purchase; it governs the assessment of damages in civil actions. The principle is so fundamental that if there was any thought of changing it, a major policy decision would be required before any detailed work could be carried out to modernise the statute law. My own view, for what it is worth, is that the principle should remain. If it does, then it defines fairness and thereby provides the criterion against which every element of the code can then be tested in the context of today’s circumstances.
The rule of law, also called supremacy of law, means that the law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law.
Ours is an undisputed case of perversion of justice by Government Bodies, namely Stoke-on-Trent City Council aided by the Local Government Ombudsman and the Minister for Justice Jack Straw, totally disrespecting and overriding the rule of law.
We have a complete folder of the original documents.
PEOPLE I HAVE CORRESPONDED WITH IN MY CASE
Mrs P A Thomas Ombudsman LGO York Office (retired)Mrs A Seex Ombudsman LGO York Office
Mr R Stay Case Investigator York Office
Mrs Ann Abraham Parliamentary Ombudsman
Marie Cheek Investigator Parliamentary Ombudsman
Alan Whitehead Parliamentary Under Secretary of State
Nick Raynsford MP Secretary Housing Minister
Frank Fizzy Local Government Modernisation
David Cameron MP
Nick Clegg MP
Kenneth Clark MP Justice Secretary
Jack Straw MP Justice Secretary
Patrick McLoughlin MP Con
Roger Helmer MEP Con
Robert Kilroy Silk MEP Lib Dem
Eric Pickles MP Con Law Reform
Judges of our case at ECHR M Pellonpaa - S Pavlovschi – L Garlicki
Geoff Davis Citizen Advice Stoke-on-Trent
Stoke-on-Trent City Council Officials
Paul Brindley Director of Finance
Mark Winstanly City Secretary
Brian Smith Chief Executive
Barry Stockley City Council Leader
Stephen Costello Director Property Services
Gwyn Hodson Head of asset Development.