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Community councillor in Wales fails to secure injunction to stop Ombudsman investigating complaints against him

A High Court judge has rejected an application by a community councillor for an injunction against the Public Service Ombudsman for Wales (PSOW) to stop its investigation of complaints made against him.

Jonathan Bishop had been the subject of complaints by the former clerk, the chair and vice-chair of the Taff's Well and Nantgarw Community Council.

The application for an injunction was made on an urgent basis, before a claim had been issued.

In Bishop v Public Service Ombudsman for Wales [2020] EWHC 1503 (Admin) His Honour Judge Jarman QC, sitting as a judge of the High Court, said the basis of the application was that the complaints should be investigated under a local resolution procedure which had been adopted by the council, and not by the statutory procedure under Part III of the Local Government Act 2000.

Cllr Bishop asserted that the former procedure, which is an informal non statutory procedure, was appropriate where, as here, complaints were made against a councillor by another councillor rather than a member of the public.

In his pre-action protocol letter the applicant set out three reasons why the Ombudsman did not have the power to investigate the complaint. These were:

  1. Issues of politeness should be dealt with under the local resolution procedure.
  2. Councillors and officers are expected to have a thick skin.
  3. Allegations made by the vice-chair about the applicant were made outside the political arena.

A "further aspect" was then stated to be that named members of PSOW staff had acted in a biased manner towards him in other referrals or complaints. This included that complaints against him had been treated more favourably than complaints which he had made against the complainants. Mr Bishop expanded upon this in his oral submissions by saying that his complaints were not investigated but those against him were.

The complaint by the chair of the council, Alun Fowler, was made in September 2019. The following month the Ombudsman wrote to Cllr Bishop to inform him that the complaint would be investigated.

That investigation is now in the process of collating evidence. By letter dated 31 March 2020 the Ombudsman informed Cllr Bishop that the complaint against him by the vice-chair, Helen Edmunds, would not be investigated as a stand-alone complaint but as part of the ongoing investigation.

In an email Cllr Bishop informed the Ombudsman of several medical conditions which he has, including autism spectrum disorder and also a high IQ with dyslexia, dyscalculia and dysgraphia.

In a reply sent on 6 April 2020 an assistant investigation manager at the Ombudsman’s service replied, saying Cllr Bishop’s comments had been noted and would be considered during the course of the investigation.

HHJ Jarman QC said Cllr Bishop’s contention that the Ombudsman should not be investigating the complaints against him under the statutory procedure but that the complaints should be dealt with in the local resolution process was at the heart of his application for an injunction to stop the current investigation.

Counsel for the Ombudsman, Gwydion Hughes, submitted that such an injunction should not be granted for three reasons:

  1. There was no good reason or urgency to justify making the application prior to the commencement of a claim.
  2. There was no serious issue to be tried with a real as opposed to a fanciful prospect of succeeding at trial.
  3. Exceptional circumstances would have to be shown before a court prevented a statutory investigatory body from exercising its powers of investigation, and none were shown here.

HHJ Jarman QC said it was appropriate to deal with the most substantive of those grounds first, namely the second ground that there was no serious issue to be tried.

The judge said: “In deciding whether or not to investigate, as PSOW and OVW [One Voice Wales] guidance make clear, one of the matters taken into account is the seriousness of the complaint.

“In my judgment Alun Fowler's complaint clearly goes far beyond matters of politeness or matters in respect of which he can reasonably be expected to be thick skinned. The reference to obscene and offensive language may come within that category, but the complaint continues to include allegations that the actions of the applicant have caused two clerks to resign and a third to consider her position, to enclose a long list of complaints against the applicant, that most members of the council have indicated a wish to resign if the applicant is not dealt with, and to enclose statements showing a pattern of unacceptable behaviour on the part of the applicant.”

He continued: “Each of those other aspects of the complaint is in my judgment clearly capable of amounting to a lack of consideration for others and/or may reasonably be regarded as bringing the office or authority into disrepute. Each of these is in a different category to a lack of politeness or a matter in respect of which other members of the council should be thick skinned about.

“In my judgment the applicant does not have a real prospect of succeeding at trial in establishing that the complaints against him should be dealt with in the local resolution process rather than be investigated by the PSOW.”

In respect of the complaint of Helen Edmunds against the applicant, the judge noted that the Ombudsman had informed Cllr Bishop by letter dated 31 March 2020 that it had been decided not to investigate this as a standalone complaint, but as part of the existing investigation.

“Given that Alun Fowler'sscomplaint alleges that the applicant has shown a pattern of unacceptable behaviour and the most of the members of the council had threatened resignation if the applicant is not dealt with, in my judgment that was clearly an approach which PSOW was entitled to adopt,” he said.

As for the applicant's allegation that the Ombudsman had shown bias against him in refusing to investigate his complaints, the judge noted that Cllr Bishop said that the reason the Ombudsman gave for not investigating his complaints was that he had not identified which part of the code he alleged was broken by Alun Fowler, but neither had the latter in his complaint.

“However, it is clear from reading the decision of PSOW in respect of the applicant's complaint against Alun Fowler that that is not the reason given for not investigating that complaint.”

The judge said the reasons were given in a letter from the Ombudsman to the applicant dated 6 April 2020. HHJ Jarman QC went on to cite large extracts from that letter.

He said the Ombudsman’s decision was reasoned and reasonable. “It is clear that the request for references to the code in future was a request for assistance for the avoidance of doubt rather than the basis for refusal. The reasons for refusal included lack of evidence, which the applicant said he would only supply if an investigation was initiated, and lack of particularity. This was in marked contrast to Alun Fowler's complaint, which was particularised and accompanied by statements.”

The judge said another particular of bias relied upon by the applicant was that Helen Edmunds’ complaint that the applicant said to her that she shouldn't come to council meetings with a communicable infection was being investigated, but his complaint about her that she said that applicant could not help with voluntary work as a friendly face was needed, was not being investigated.

“However, as is clear from PSOW's letter concerning the former, that is not being investigated as a standalone complaint but as part of the ongoing investigation which includes an allegation of a pattern of unacceptable behaviour on the part of the applicant,” the judge said.

HHJ Jarman QC continued: “Finally, in respect of bias, the applicant says that is shown by how PSOW conducted an interview of his support worker as part of the investigation, after which the support worker wrote to PSOW saying that the draft statement which had been sent to him did not fairly reflect what he said in the interview and was in breach of data protection rights arises. In my judgment this is far from justifying the allegation of bias.”

The applicant submitted before the judge that the complaint of Helen Edmunds dealt with matters outside council business and therefore came within the principle in Livingstone v The Adjudication Panel for England [2006] EWHC 2533 (Admin).

HHJ Jarman QC agreed with counsel for the Ombudsman that this and any other jurisdictional points could be raised by the applicant in the course of the investigation (see, for example APW/001/2018-19/CT Councillor Graham Down).

The judge said the applicant in his oral submissions referred to his medical conditions as impacting upon the subject matter of the complaints against him and his ability to take part in the investigation.

“As indicated above he has made these known to PSOW who has indicated that they will be taken into account and that reasonable adjustments will be made in the investigation. The applicant invited me to extend time for any judicial review claim in light of these conditions, but it is not appropriate to do so unless and until a claim is issued.”

HHJ Jarman QC concluded that he was not satisfied that Cllr Bishop had shown any serious issue to be tried, and that was sufficient to justify refusing to grant the order sought.

The judge said it was not necessary for him to make findings on the other points taken by counsel for the Ombudsman.