Duty to report our decisions to elected officials

If we make a finding of fault,  councils and some authorities have a duty to report that finding to elected officials. However, the requirements to report that finding differ depending on how we have issued our decision.

Section 5/5A of the Local Government and Housing Act 1989  places a requirement on a council or authority’s Monitoring Officer to prepare a formal report to the council or authority when we find fault. This requirement applies to all Ombudsman complaint decisions, not just those that result in a public report; it is therefore a significant statutory duty.

The Ombudsman supports a flexible approach to how this duty is discharged and does not seek to impose a prescriptive approach, as long as the Parliamentary intent is fulfilled in some meaningful way, and the council or authority’s performance in relation to Ombudsman investigations is properly communicated to elected members. We make the following suggestions about how to proceed; however, only the court (and not the Ombudsman) can determine whether or not a council or authority is in breach of a statutory duty.

As a general guide, we suggest:

• Where the Ombudsman has made findings of fault in regard to routine mistakes and service failures, and the council or authority has agreed to remedy the complaint by implementing the recommendations made following an investigation, the duty is satisfactorily discharged if the Monitoring Officer makes a periodic report to the council or authority summarising the findings on all upheld complaints over a specific period. In a small authority this may be adequately addressed through an annual report on complaints to members.

• The Monitoring Officer should consider whether the implications of an investigation should be individually reported to Members where that investigation has wider implications for council or authority policy or exposes a more significant finding of fault, for example:
  • because the fault is or has been ongoing therefore puts the council or authority at risk of further fault, or
  • because of the scale of the fault or injustice, or
  • because of the number of people affected by it.

• In the unlikely event that an authority is minded not to comply with the Ombudsman’s recommendations following a finding of fault, the Monitoring Officer should report this to Members under section 5 of the Local Government and Housing Act 1989. This is an exceptional and unusual course of action for any council or authority to take and should be considered at the highest tier of authority.

If our finding of fault is issued as a public report (under section 30(1)) of the Local Government Act 1974, there is a specific requirement for that finding to be reported to the council’s or authority’s Members, and for a formal response to that finding to be sent to the Ombudsman. The council or authority’s response must be sent to the Ombudsman within three months setting out the action that they have taken, or propose to take, in response to the report.