The Local Government Ombudsman (LGO) for England and Wales recently published the outcome of a complaint made against London Borough of Barnet (Barnet). Briefly, in late 2015 the complainant, A, applied to Barnet as homeless and contended that she was in priority need. Her application triggered some quite stringent statutory provisions that required Barnet to make enquiries and consider whether her application should be accepted or not. An acceptance would have then ultimately required Barnet to provide A with permanent accommodation.
In his report the LGO concluded that Barnet had not discharged its responsibilities properly. Initially A was placed in a hostel for three nights but thereafter was simply told that Barnet did not have to assist her. She was not given the full written explanation that Section 184 of the 1996 Housing Act requires, something that effectively deprived her of the opportunity of lodging an appeal with her local County Court. In the 15 months that followed the “decision” A approached Barnet on four further occasions. On each of these occasions homelessness applications were rejected out of hand and as in the first instance, she was not given a formal written decision.
During this 15 month period A was street homeless and for some of the time in winter conditions, either “sofa surfed” with friends or slept on a night bus. At one point she was hospitalised for 10 days following a severe asthma attack. Subsequently, a formal complaint was made to Barnet and after rejection was renewed to the LGO.
Barnet’s, some might say less than adequate responses to the LGO did not impress and A’s complaint was upheld. The LGO stated quite simply that the applications/requests that A had made to Barnet were not dealt with properly and contentions to the effect that the Council was doing its best and that it lacked resources were rejected. A and her father who had assisted her were awarded a total of £500.00 in compensation. The report does not go into detail on the subject of the complaints procedures that were implemented but based on my considerable past experience I suspect that prior to the LGO conducting a detailed investigation, the initial complaint made to Barnet triggered a three stage process that culminated in the matter being reviewed by a member of its chief executive’s staff. it is also likely that following the LGO’s publication of the report, the matter was reviewed by at least one council committee before it could be acted upon. The implementation of these processes and procedures will have necessitated a good deal of financial outlay, all of it borne by the public purse.
“So?” the casual but not unsympathetic observer might ask. A was treated very badly but although there has been quite considerable delay, things have been put right. C did not have to resort to costly litigation and ultimately she has been vindicated. Local Council and LGO complaints procedures are relatively straightforward to access and are relatively inexpensive to maintain. What could have be done asks our observer. How could things have been done better? Could a council that one might reasonably assume is as financially constrained as all the others have provided a more cost-effective service?
In responding to our casual observer I must make it clear that it is not the purpose of this blog to single Barnet out for criticism. My years of experience in the housing sector remind me that A’s scenario is played out in all parts of the UK, very probably on a weekly if not daily basis and Barnet’s conduct should not be referred to as an isolated instance.
It does seem that in part, A’s local council neglected to follow basic procedures. It also seems to me that there was a tendency on the part of Barnet to adhere to what it saw as time honoured principles. However, as with so many disputes, this is not necessarily a clear cut “right -v-wrong” case. A’s position is quite clear but quite justifiably in its view, Barnet argued that its experienced housing officers have had to cope with very high demand and they did all that they that could reasonably be expected of them. Barnet’s response to the LGO included a reference to its Housing Department funding a homelessness charity that had re-housed 156 people in 2015/2016. Barnet also essentially made the point that if the relevant processes and procedures were followed in each and every instance, its housing service would collapse.
What for me was most disappointing was that it appears that at some point, the Council officers with responsibility for A’s case lost sight of what they were meant to be doing. Whilst it appears that in some instances at least, procedures were not followed, in others there appears to have been an unwarranted adherence to procedure. No thought appears to have been given as to whether at any point in a case involving a woman with an ostensibly significant asthma condition there was any basis for taking a quite legitimate shortcut and the Council taking a view e.g. when A’s subsequently upheld complaint was first made. Indeed, it seems that in not mentioning this in his final report, the LGO has in a sense legitimised part of the very system that he was criticising.
An independent mediator with housing/local government experience could have been called in as soon as the complaint was made. With the benefit of the parties making prior representations and the council making its files of papers available, within a few days the mediator could have convened and facilitated a mediation lasting no more than one day. accordingly he/she would have been able to help A and Barnet to confidentially reach an accord that they were both comfortable with.
At the very least, a vast amount of public officer time would have been saved. Equally, it is much more likely that the parties would have been able to express their respective points of view and to listen to one another – effectively justice would have been done and as importantly, it would have been seen to have been done.
How much might the implementation of the quite lengthy council complaints procedure and the subsequent LGO processes have cost?
As one might expect I do not have access to the relevant figures. Those I quote below are estimated, deliberately on the low side and whilst they should not be seen as 100% accurate, they do illustrate my point. Accordingly, I have estimated that taking into account factors such as proportion of salaries, accommodation costs, light and heat and other operating costs, a fair notional starting point for time expended by Barnet Council officers would be £150.00 per hour. Given that technically they are not “paid” I have estimated an hourly rate for Councillor input as £50.00. Given the professional standing of those who work in the LGO’s office, I have taken their hourly rate to be £175.00. For all purposes I have “charged” telephones and letters at £2.50 per item.
On this basis I calculate the costs expended in the case as follows:-
Stage 1 of Barnet’s complaints procedure in which A’s complaint would have been reviewed by the “offending” department itself. Assume input from a clerical officer and a section head or supervisor together. This would in all probability include at least one officer being interviewed and writing a memorandum or report and a letter of outcome being forwarded to A. Also some routine correspondence in terms of acknowledging A’s complaint and the like.
Say 2 hours reading time; 30 minutes staff consideration and discussion time; interviews, 1.5 hours involving two officers with one hour post interview reading and writing up time; 30 minutes to conduct a final review; say 5 routine phone calls and letters.
Stage 2 of the complaints process in which A’s complaint will have been looked at by a specifically designated complaints officer based outside the department that she was complaining about.
Say – 3 hours initial reading time; short initial letter to acknowledge receipt of the case and to advise the parties of the relevant procedure; possibly 1 hour spent in discussions; 30 minutes review of any further representations made by A or her father; formulating findings and writing them up in some detail -1 hour; 5 more routine phone calls and letters.
Stage 3 of the complaints procedure in which A’s complaint would have been reviewed in part by the chief executive of the council himself and in part by a presumably quite senior member of his staff.
1 short initial letter to acknowledge receipt of the case and to advise the parties of the re4levant procedure plus say 3 hours initial reading time; 1 hour internal and external staff discussions; 30 minutes review of any further representations made by A or her father; careful consideration of any possible award compensation, something that in practice is largely within the domain of the chief executive’s department and writing a lengthy response during the complaints process as a whole, outlining findings of fact and explaining the basis of the decision at some length 3 hours; 5 more routine phone calls and letters.
Subsequent LGO input – 3 hours initial reading time; 10 routine phone calls and letters to ensure compliance by both parties; further review and considering supplemental representations 3hrs
Further council input at this stage-responding to correspondence, dealing with incidental enquiries and writing supplemental possibly lengthy responses which would necessarily involve very careful consideration of the council’s position – 3hrs; say 5 routine phone calls and letters
Further input by Barnet subsequent to the publication of the LGO’s report in terms of consideration by the Chief Executive’s Department, writing a report to the relevant committee and committee time; possible cost of taking legal advice – say 3 hrs councillor time plus 5 routine letters and telephone calls. Also 2 hours further officer input.
£4667.75, say £4,600.00 plus of course the compensation
This does not take into account any sums expended by C or her father or the costs of any legal advice taken by either party. It does not take into account the compensation figure recommended by the LGO or any loss of productivity attributable to council staff putting other, possibly pressing duties or obligations to one side.
How much would the mediator have cost? As one might reasonably expect, here I am on much firmer ground. I suspect that a case like A’s would not have taken the day to mediate and that a five-hour time estimate was more likely. As when calculating the complaint costs, I have focused purely on possible council outlay. I also have taken it that people such as A will not generally be able to afford to contribute to the costs of any mediation.
Cost of mediator for initial acceptance of instructions, incidental administrative tasks, preliminary reading and a five hour mediation which would include the drawing up of any agreement reached
£1000.00, possibly plus VAT of £200.00
Council officer time in terms of locating the mediator; preparation, formulation of papers and reading 3hrs
Actual attendance at the mediation by one council officer authority to settle to include any incidental telephone calls or conferring and writing a short report afterwards 8hrs.
Total mediation costs
£ 2,400.00 say £2,500
Effectively, a “saving” of £2167.00
The real savings are much higher:-
Imagine the cost the “A” scenario was replicated (which is probably is) 100 times across England and Wales in a year – and that is just in respect of homelessness cases.
What is the cost of the lost council time that could have been devoted to something more productive?
What costs were incurred by A and her father in terms of pursuing a 6 stage complaint paper process? Given that it appears there was no opportunity for A to be heard and for all the interested parties to be listened to has Justice been done?
As is reflected above, in reality, in the course of a year A’s case is probably replicated hundreds of times in different parts of the UK. Not all such cases will result in the complaint and certainly not all of those will go all the way to the LG. However, the outline figures above do not make good reading. Cash-strapped councils everywhere may feel that costs regimes such as that outlined above can no longer be sustained and that radical overalls of their processes and procedures should include provision for independent, very cost effective, external mediation.
* I am indebted to Giles Peaker, the author of the excellent housing blog, Nearly Legal who recently published an article on the complaint considered in this blog.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.