Using the Monitoring Officer to hold councils to account for housing, education and social services

Using the Monitoring Officer to hold councils to account for housing, education and social services

If you're wondering how you could to hold your local authority to account for not obeying the law or refusing to carry out its statutory duties, we have a post today you won't want to miss.

I recently met Belinda Schwehr, a lawyer and founder and CEO of CASCAIDr, which stands for the Centre for Adults’ Social Care, Advice, Information and Dispute Resolution. CASCAIDr is a specialist advice charity, launched in 2017, with a mission to right some of the illegal or just generally poor practice in adults’ Social Care and NHS health service allocation in England. Belinda's charity offers a range of free and low-cost services (depending on what you need).

I first contacted Belinda after a spotted an article she had written about the LA Monitoring Officer. The what? I thought. So I promptly got in touch and she agreed to explain all for SNJ's readers. 

The Monitoring Officer and how they can be used

by Belinda Schwehr

As anyone who’s ever done battle with their council will know, councils’ complaints processes can take ages and rarely nail the real problem. The complaint system can’t be made to deliver an injunction to continue a disputed budget or service, pending resolution of the complaint.

Complaints scrutineers rarely feel able to uphold a complaint on the basis of the illegality of local policies or practices. One can go further, to the Ombudsman, and frame the issue as ‘fault’, but the Ombudsman does not have any jurisdiction over legality. Breach of law IS obviously maladministration if the law is clear. But one can’t go to the local government ombudsman about meremaladministration alleged to have caused injustice, until one has at least triedto complain.

The real problem with the complaint system is that the people who consider complaints are not lawyers, and they don’t have to be. The complaint system is not meant to address matters of law, as such. 

Where the dispute is about what the law means, or how it should be applied, or other types of dispute about legality, the complaint system is unlikely to be regarded as an alternative, adequate remedy preventing judicial review. So for those who wantto bring legal proceedings and make legal history and precedents that others can point to, off to the Administrative Court they should go! 

But not many have the stomach for that, and threats are not necessarily the right thing to make, straightaway. Most people haven’t got the time, skills or money to even thinkabout legal proceedings. 

There’s no appeal against a decision about assessment or a care plan or a personal budget, but it’s not true that there’s ONLY a complaint. 

In adult social care terms there’s internal review, up through two or three more layers of already corporatist, overworked staff… if you know to get one of those. That kind of management review is not statutory, but it is obliquely referred to in the Care and Support Guidance, if disputes arise or agreement is not reached. See the guidance, and get your council to do this FIRST

10.86 In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process.People must not be left without support while a dispute is resolved. 

Care and Support Guidance

After that, though, the statutory Monitoring Officer is an under-used route and it’s free, simple, and only requires a little legal acumen – the sort you can get from websites if you are determined. Writing to the Monitoring Officer about your LEGAL problem, BEFORE complaining, ought to help satisfy the LGO that you have tried your best to act reasonably, using the remedy provided by Parliament. 

Any funded independent advocate’s report into councils’ poor decision-making should be directed to the Monitoring Officer, as well as to the social services department: see para 7.50 and 7.53 Care Act Guidance.

The Monitoring Officer’s duty

s5(2) of the Local Government and Housing Act 1989 imposes this mandatory duty on all authorities’ Monitoring Officers:

‘[I’]f at any time it appears to him, that any proposal, decision or omission by the authority, …has given rise to, or is likely to or would give rise to …a contravention  … of any enactment(that means a statute, like the Children and Families Act, or the Children Act, or Regulations like the Direct Payment Regulations) or rule of law(that’s a principle of public law, ie rationality, fairness etc.) [s/he must] ‘prepare a report to the authority with respect to that proposal, decision or omission ...  and …. arrange for a copy of it to be sent to each Member of the authority.’

s5(2) of the Local Government and Housing Act 1989

The Members must consider an MO’s report within 21 days and decide what to do. All such actions and proposals are automatically suspended during the time when the report is being considered by the Members.

The remedy is available to anyone who is affected by any local authority function, so applies to Housing and to Education as well as to social services decisions.

To make an allegation of illegality, you do need to know a bit about public law, and the statutory framework that the council officers are acting under.

The action, decision or omission must be: 

  1. outside of the wording of the statute or applicable regulations;
  2. so unreasonable that no reasonable authority could have made the decision or taken it up as a defensible stance; 
  3. in breach of human rights
  4. in breach of the long-established legal rules of procedural fairness 

This duty must be discharged personally by the named MO/their deputy. They can’t hand it over to the head of the relevant service for a decision on legality, although of course they will need to check out the facts.

If the relevant team has already taken legal advice, the in-house lawyer will be professionally conflicted from helping, and for that reason, the council is obliged to furnish the MO with the resources to do the job, paying for an outside lawyer’s input, if needed. The MO is protected from dismissal other than through special steps, guaranteeing independence. 

The MO cannot just NOT WRITE BACK, if one has written in at least coherently. S/he either agrees or not. If not, s/he should give reasons, and if reasons are refused, or no reply is forthcoming, that in itself is a potential piece of maladministration for the Ombudsman’s consideration.

The cuts are no excuse

Mick King, the current LGO, issued a report recently, into councils’ need to stick to the law, despite government cuts.

The report identifies loss of corporate memory due to widespread redundancies, the rationing of services that are mandatory duties, the increase in flat-rating of services like respite, transport, leisure, etc, and other ‘wheezes’ making sense to ill-informed managers, maybe, but not to anyone who is legally literate. 

Mr King said: “…we cannot make concessions for failures attributed to budget pressures and must continue to hold authorities to account against relevant legislation, standards, guidance and their own policies.” 

The Ombudsman's report into systemic failings due to cuts, expressed the hope that the report would be, ‘helpful to chief executives and monitoring officers in ensuring sound corporate governance is maintained during periods of transformation.’

Lawyers in local government responded positively and even mentioned the Monitoring Officer’s role: “Crucial to a more positive future is the elevation and strengthening of the arm of the monitoring officer, who is ideally placed to ensure that restructure and service redesign is legal, ethical, and properly communicated.” (LLG president Suki Binjal).

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Tania Tirraoro

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