Liverpool City Council, R (on Application of) v Local Commissioner For Local Government For North And North East England

A local government ombudsman investigating maladministration is not required to apply the legal principles governing judicial review or unlawfulness. Maladministration and unlawful conduct overlap but are distinct concepts.

Where an alternative court remedy exists, the ombudsman must consider its existence as a question of law and may investigate if it is unreasonable to expect the complainant to use that remedy. The National Code of Local Government Conduct may provide the applicable standard for investigating councillors’ conduct. Councillors may be influenced by party policy, but must retain personal responsibility and must not vote blindly so that meaningful consideration is excluded.

Liverpool City Council appealed from the refusal by Mr Justice Hooper of its application for judicial review of a report by the Local Commissioner for Local Government. The Commissioner had found maladministration arising from seven councillors’ failure to disclose interests as football supporters and from pre-arranged party voting on a planning application.

The Council challenged the use of the National Code of Local Government Conduct, the decision to investigate despite the possible availability of judicial review, and the finding that party political voting arrangements constituted maladministration.

1. Appeal dismissed. The Commissioner had acted within the generous ambit of her statutory discretion. The Council had not shown that the investigation, report or findings were unlawful.
2. Maladministration and unlawful conduct are not synonymous. The Commissioner’s statutory function was to investigate and report on maladministration, not to determine whether conduct was unlawful. Even where judicial review might be available, the Commissioner was not acting as a surrogate court and was not required to apply judicial-review principles when deciding the maladministration complaint.
3. Section 26(6) of the Local Government Act 1974 required a two-stage approach. The Commissioner had first to consider whether the complainant had or had had a remedy in court, including judicial review. That was a question of law. If such a remedy existed, she then had to decide whether, in the particular circumstances, it was unreasonable to expect the complainant to use it. That was a discretionary question subject to ordinary public-law control.
4. The proviso to section 26(6) was properly applied. The complainants lacked effective investigatory resources, had limited means, and the Commissioner could obtain evidence unavailable in judicial review proceedings. Those circumstances justified continuing the investigation.
5. The Commissioner was entitled, and required for the purposes of section 30(3A), to have regard to the National Code. Its disclosure test governed the assessment of the councillors’ breach of the Code. The different judicial test for apparent bias did not displace that statutory and Code-based function.
6. Party loyalty may be a relevant consideration, but a councillor must retain an independent responsibility for the decision. Where party pressure becomes decisive and excludes balanced judgment, particularly in a planning application outside party policy, it may constitute maladministration. The evidence supported the Commissioner’s conclusion that the agreed voting system had made the subsequent debate meaningless.

The declarations sought were refused. The appeal was dismissed with costs, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — Appeal from the refusal by Mr Justice Hooper of judicial review of the Commissioner’s report. Appeal dismissed.