Gallagher & Anor, R (on the application of) v Basildon District Council

A local authority is not required to accept a Local Government Ombudsman recommendation merely because the Ombudsman has made it. The recommendation is not binding, and refusal is reviewed on ordinary public-law grounds, including Wednesbury irrationality. Where reasons are given, the court examines whether relevant considerations were taken into account and given rational weight. Relevant matters may include the authority’s conduct, the injustice suffered, the proposed remedy and the effect on scarce local resources. A modest payment may properly recognise distress caused by serious maladministration even though it cannot restore the claimant to the former position.

The claimants, travellers living on an unauthorised site, supplied the Council with sensitive medical and educational information about their children. The information was published in a committee report. The Local Government Ombudsman found maladministration causing injustice and recommended an apology and compensation of £300 to each claimant.

The Council apologised but repeatedly refused compensation. The claim challenged the Council’s reconsidered decision of 25 June 2009. The issues were whether refusal of an Ombudsman recommendation required cogent reasons and whether this refusal was lawful.

1. Claim allowed. The Council’s decision was quashed.
2. The statutory scheme under the Local Government Act 1974 does not make an Ombudsman’s recommendation legally binding and does not require a local authority to have “cogent reasons” before rejecting it. The statutory consequence of non-compliance is principally publicity. R v Local Commissioner for Administration for the South, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire ex parte Eastleigh Borough Council [1988] QB 855 could not establish otherwise because it pre-dated the statutory power to make recommendations.
3. R (Bradley) v Secretary of State for Work and Pensions [2008] ECWA Civ 36 concerned the distinct question whether findings of the Parliamentary Commissioner were binding. Its reasoning, based on ministerial accountability to Parliament, could not be mechanically transferred to local-government recommendations.
4. Under the ordinary rationality standard, adapted to the statutory context, a court may examine whether a local authority considered relevant matters and gave them rational weight. Relevant matters included the Council’s maladministration, the claimants’ distress, the proposed payment and its effect on scarce resources. The approach in R (Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 Admin supported distinguishing between Ombudsman findings and recommendations.
5. The Council’s reasons were legally inadequate. It treated the fact that payment could not undo the distress as decisive, failed to acknowledge the serious distress that had occurred, and did not assess whether the modest payment was proportionate in light of the maladministration and available resources. A “botheration” payment may recognise a serious affront and distress even where restoration to the original position is impossible.