----

Bevan Brittan I private

Lawyersand
for third
the public,
sectors

Date 18 September 2017

Your ref
Grimsby Our ref JT\CC\75019\287
North East Lincolnshire Direct Line +44 (0) 370 194 7813
DN320QJ Direct Fax +44 (0) 370 194 7800

jason. tandy@bevanbrittan.com
By email & post

Dear Sir,

Proposed Judicial Review claim

We act on behalf of the Local Government and Social Care Ombudsman (the Ombudsman). We are
writing in response to your letter to the Ombudsman dated 4 September 2017.

Please treat this as the Ombudsman's letter of response pursuant to the requirements of the Judicial
Review Pre-Action Protocol. We use the paragraph numbering as set out in Annex B to the Judicial
Review Pre-Action Protocol.

1 The Claimant

Grimsby ~
North East Lincolnshire
DN320QJ

2 From

Bevan Brittan LLP instructed by:

The Local Government and Social Care Ombudsman

PO Box 4771
Coventry
CV40EH

3 Reference details

Our reference: JT\75019\287

The Ombudsman's reference: 17003081

The matter is being dealt with by Rob Draper at the Local Government and Social Care
Ombudsman and Jason Tandy of this office.

4 The details of the matter being challenged

Background
M-20067613-2

Fleet Place House I 2 Fleet Place Holborn Viaduct I London EC4M 7RF
1

T 0370 194 1000 F 0370 194 7800 OX 1058 Chancery Lane

wwwbe~t~nec'i>11P ~~v~~tanLLP t: 0370 194 1000 London I Leeds I Birmingham I Bristol

Bevan Brittan is a limited liability partnership registered in England & Wales: Number OC309219. Registered office: Kings Orchard 1 Queen Street Bristol BS2 OHQ A list of
members is available from our offices in London, Leeds, Birmingham and Bristol and on our website (which has other regulatory information). Authorised and regulated by the
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4.1 The circumstances of your threatened claim arise from your complaints regarding a
Council Tax Liability Order obtained against you by North East Lincolnshire Council (the
Council) in 2015 (the Liability Order), allegedly on erroneous grounds, and
subsequently the Council's refusal to apply for the Liability Order to be quashed.

4.2 The Council had obtained an earlier liability order against you in November 2012 due to
non-payment of council tax. As a result you were ordered to pay court costs of 60,
although the Council suspended recovery of this sum pending resolution of a challenge
you had filed in the High Court (either by way of case stated or Judicial Review) against
the Council's decision to seek the liability order. We understand that proceedings were
discontinued in November 2013 after you wrote to the court giving notice of your intention
to withdraw the Judicial Review. The Council accordingly lifted its temporary suspension
on recovering the 60 payable in costs, although it did not in fact take any recovery steps
at that time.

4.3 In 2015 the Council received a non-specific payment from you which did not correlate to
the calculated instalments for your council tax liability due during that tax year. The
Council therefore allocated the payment to the 60 debt which remained outstanding from
the proceedings in 2012. The effect of this allocation was to contribute to arrears on your
council tax statement for the 2015/16 year for which the Council served a summons
requiring payment, and in default of that, applied for the Liability Order.

4.4 At the hearing of the Council's application you argued that there should not in fact be
arrears on your council tax statement as they had only arisen due to the Council
erroneously allocating payments to a liability which was the subject of legal proceedings.
In response, the Council cited the letter you had written to the court in November 2013 as
evidence that your High Court challenge had been withdrawn, and therefore that the 60
liability was payable. The Liability Order was accordingly made by the court.

4.5 You disputed that you had withdrawn your High Court challenge in 2013 and complained
to HMCTS about the handling of your claim, which was upheld in 2017 although it is not
clear what impact this had on any live proceedings before the court. You therefore
considered that the Council had improperly allocated your council tax payments to an
earlier debt on the basis of incorrect information, which consequently led to the arrears for
which the Liability Order was sought by the Council. You accordingly asked the Council to
apply to the Magistrates' Court to quash the Liability Order. The Council however declined
to do so and expressed the view that the matter was concluded with the court
proceedings in 2015, and they deemed the matter closed.

Complaint to the Ombudsman

4.8 You complained to the Ombudsman by submitting a web complaint form on or around 20
May 2017 (complaint reference 17 003 081) stating that the Council had improperly
allocated payments you had made towards your council tax liability to arrears for previous
tax years, on the basis that a suspension of recovery action for those arrears had been
wrongly lifted due to a flawed understanding that your High Court challenge had been
withdrawn. You also complained in relation to the following matters:

4.8.1 the Council had refused to apply to the Magistrates' Court to quash the
Liability Order obtained in 2015, which you felt it should do in light of (in
your view) the Liability Order being obtained on incorrect information; and

4.8.2 the Council would not further investigate your complaint concerning the
circumstances surrounding the Liability Order and its refusal to apply to
quash the Liability Order.

4.9 Where the Ombudsman's complaint form asked you to include details of the injustice you
have suffered, you simply stated that you had sustained an 'incalculable amount of
 injustice', such as having to obtain evidence from HMCTS that you had not in fact
withdrawn your High Court challenge.

4.10 By way of a remedy you sought:

4.10.1 an investigation by the Council in relation to the circumstances around

the Liability Order in light of new evidence you had obtained;

4.10.2 an application by the Council to the Magistrates' Court to quash the

2015 Liability Order;

4.10.3 financial redress to compensate you for hardship caused by the Council,
although you did not suggest what level of compensation you thought
appropriate or particularise the hardship allegedly sustained; and

4.10.4 a review of the Council's policies regarding its use of liability orders.

4.10 Your complaint was allocated to an Ombudsman investigator, Ms Jeanette Gooch, for
assessment of whether the Ombudsman should exercise his discretion to investigate in
this instance. Ms Gooch considered the written representations and documents you had
provided, the past complaints you had made to the Ombudsman on connected matters
and discussed the background with the Council.

Draft Decision

4.11 The Ombudsman's assessment investigator considered the matter and came to a
provisional view on 21 June 2017. In summary the investigator's view was that:

"The Ombudsman will not investigate this complaint about a liability order from 2015. This
is because there is insufficient evidence of fault by the Council.'

4.12 The assessment investigator found that the Council had applied for the Liability Order as
a result of your failure to pay the correct council tax due. Had you paid the correct
amounts each month then the payment you made in 2015 would not have been allocated
to earlier debt and arrears for the 2015/16 tax year would not have accrued. The
Ombudsman investigator accordingly found that there was insufficient evidence of fault by
the Council to justify undertaking an investigation in relation to the Council's refusal to
apply for the Liability Order to be quashed.

4.13 Further, Ms Gooch noted that the court, after considering your representations in relation
to your High Court challenge, was satisfied that the arrears were due notwithstanding your
views on the way the Council had allocated your payments.

4.14 Finally, Ms Gooch confirmed that the Ombudsman would not be able to investigate
matters concerning the accrual of the original 60 debt in 2012 on the basis that you had
resorted to an alternative legal remedy (by way of your High Court challenge) and there
was no evidence to suggest that you did not remain liable to pay that sum.

4.15 On consideration of the provisional view, you responded by letter dated 28 June 2017
making a number of representations as to why you considered that Ms Gooch had got it
wrong in the draft report and that your complaint should be investigated. In particular, you
submitted that the draft report did not specifically relate to issues in your present
complaint, namely the Council refusing to address your complaints about their decision
not to apply for the 2015 Liability Order to be quashed. You further submitted that your
present complaint was not concerned with your High Court challenge, nor the Council's
allocation of your council tax payments, but rather that the earlier debt of 60 should have
remained suspended. Your view was that the Council therefore acted with fault in
allocating payments to the earlier debt and should accordingly be investigated by the
Ombudsman.
Final Decision

4.16 The Ombudsman's assessment investigator reached a final decision on 30 June 2017,
following consideration of your comments on the provisional view. The investigator upheld
the provisional view.

4.17 In respect of your comments on the provisional view, the Ms Gooch noted that Council
had received a letter from you giving notice that your High Court challenge was to be
withdrawn and, whilst the suspension on pursuing recovery action was lifted, the Council
did not in fact take any recovery action for the 60 debt. The assessment investigator also
acknowledged that whilst you did make regular council tax payments, you failed to do so
as billed or to cover the arrears. The final report reiterated that your representations on
whether or not your payments had been allocated correctly had been considered by the
court, including that the earlier debt was subject to an appeal. Nevertheless the Liability
Order was granted.

4.18 In relation to your complaint about the Council refusing to investigate your complaint, the
Ombudsman's assessment investigator found that the Council considered the matter to
have been concluded with the court proceedings in 2015 and there was no evidence to
suggest that this is not the case. Ms Gooch also considered that if you thought the
Liability Order should not have been issued in 2015 it would have been open to you to
pursue a legal challenge, as you had done previously.

4.19 In light of the above, the investigator reiterated her decision that there was insufficient
evidence of fault by the Council and most of the issues behind your current complaint had
already been considered by a court in any event. The Ombudsman's provisional decision
not to investigate your complaint was accordingly upheld.

Review of Decision

4.20 On 12 July 2017 you formally requested that the Ombudsman review his final decision on
the basis that the Claimant had new and relevant information, namely papers from the
Council's application for the Liability Order in 2015.

4.21 In your review request, you further stated that there was confusion as to two claims you
filed in relation to the 60 costs order made in 2012; one was an appeal by way of case
stated against order of the costs and the other was an application for Judicial Review. You
stated that it was only the Judicial Review claim that was withdrawn and the appeal by
case stated was ongoing, and so you felt that the Council had been wrong to lift the
suspension on recovery action. It remains unclear as to what the current position of the
appeal by case stated is.

4.22 The final decision was reviewed by Mr Rob Draper, an Assessment Team Leader for the
Ombudsman. On 7 August 2017 Mr Draper reviewed the decision reached by Ms Gooch,
as well as your review request, but did not consider that there was sufficient evidence of
fault by the Council to justify an investigation and no further information you had provided
cast doubt on that finding. In particular, Mr Draper noted that there was no indication that
your appeal against the 2012 order for costs had been successful and accordingly there
was no basis, seen by the Ombudsman, for the Council to apply to quash the 2015
Liability Order. The review outcome concluded that there was no basis to overturn the
final decision dated 30 June 2016 reached by Ms Gooch.

Judicial Review

4.23 You then wrote to the Ombudsman by letter dated 4 September 2017 in order to inform
the Ombudsman of your intention to initiate Judicial Review proceedings.

4.24 Further to your letter before claim, we understand the proposed grounds of challenge to
be:
 4.24.1 the Ombudsman's assessment investigator took into account irrelevant
factors in arriving at her decision not to investigate the complaint, namely
(i) the background information relating to prior judicial proceedings and
previous complaints you had made; and (ii) the way in which the Council
allocated payments on a council tax account;

4.24.2 the Ombudsman's assessment investigator failed to take into account

relevant factors before deciding not to investigate your complaint, namely
whether your appeal against the 2012 costs order had in fact been
withdrawn, and therefore whether the Council had acted properly in
allocating subsequent payments to the earlier debt;

4.24.3 the procedure followed by the Ombudsman was unfair and biased,
although you have failed to particularise this allegation; and

4.24.4 the Ombudsman has failed to provide any rational justification for his
decision.

4.25 In summary, your letter before claim argues that the Ombudsman's final decision is made
on inadequate and flawed reasoning, and is accordingly irrational in the public law sense.

4.26 By way of a remedy, you seek confirmation that the Ombudsman will withdraw his final
decision dated 30 June 2017, consider all relevant evidence afresh and investigate the
complaint.

5 Response to the proposed claim

The legal framework

5.1 The Ombudsman is established under the Local Government Act 1974 (the 1974 Act).
Pursuant to Section 26A of the 1974 Act the Ombudsman may investigate a complaint
made in writing by a member of the public who claims to have sustained injustice in
consequence of maladministration or service failure in connection with action taken by or
on behalf of a Local Authority.

5.2 Pursuant to Section 24A of the 1974 Act, in determining whether to initiate, continue or
discontinue an investigation the Ombudsman shall act in accordance with his own
discretion.

5.3 The following legal principles relating to the exercise of the Ombudsmans jurisdiction are
well established:

5.3.1 The jurisdiction relates to the manner in which a decision is reached or

discretion exercised. The statutory discretion does not concern the
merits of the decision itself (see R v Local Commission for Administration
for the North and North East Area of England, ex parte Bradford
Metropolitan City Council [1979] 1 QB 287 at 311H and Section 34(3) of
the Act which provides that: nothing in this Act authorises or requires
a Local Commissioner to question the merits of a decision taken without
maladministration by an authority in the exercise of a discretion vested in
that authority.).

5.3.2 The Ombudsman has a wide statutory discretion in deciding whether to

undertake an investigation and it is only in the clearest of cases that the
intervention of the Court will be proper. Per Mr Justice Collins in R v.
Commissioner for Local Administration (ex parte Turpin) [2001] EWCA
Admin 503:

if it is clear that the Ombudsman in reaching a decision has misdirected

himself as a matter of law, or has failed to have regard to a relevant
 consideration, or has had regard to an irrelevant consideration, or has
given reasons which are so defective that they indicate that his decision
is bad in law, then the court can and should intervene. The court will be
careful to ensure that it does so only if such errors are clear

5.3.3 It would only be in rare cases that it could be demonstrated that the
exercise of the discretion of the Ombudsman was unreasonable in the
public law sense and the Court will be reluctant to intervene in the
exercise of its discretion. See R v Parliamentary Commissioner for
Administration, ex parte Dyer [1994] 1 All ER 375 and R (on the
application of Doy) v CLAE, [2002] Env. L.R. 11 at paragraph 16, where
Morison J said:

In essence, the Ombudsman and not the court is the arbiter of what
constitutes maladministration. The court's supervisory role is there to
ensure that he [h]as acted properly and lawfully. However much the court
may disagree with the ultimate conclusion, it must not usurp the
Ombudsman's statutory function. It is likely to be very rare that the court
will feel able to conclude that the Ombudsman's conclusions are
perverse, if only because he must make a qualitative judgment based
upon his [his department's] wide experience of having to put mistaken
administration onto one side of the line or the other. I have to say that in
this case I would not have made the same judgment as the Ombudsman;
but I am not asked to make any personal judgment and the real question
is whether any reasonable Ombudsman was entitled to hold the view
expressed in this careful report.

5.3.4 Further, see R v Parliamentary Commissioner for Administration, ex parte

Dyer [1994] 1 All ER 375 at page 626 where Simon Brown LJ also
referred to the court's "supervisory jurisdiction over the Commissioner" in
the context of the equivalent provisions in the Parliamentary
Commissioner Act 1967, and stated:

"[I]t does not follow that this court will readily be persuaded to interfere
with the exercise of the Commissioner's discretion. Quite the contrary.
The intended width of these discretions is made strikingly clear by the
legislature: under section 5(5), when determining whether to initiate,
continue or discontinue an investigation, the Commissioner shall "act in
accordance with his own discretion;" under section 7(2), "the procedure
for conducting an investigation shall be such as the Commissioner
considers appropriate in the circumstances of the case." Bearing in mind
too that the exercise of these particular discretions inevitably involves a
high degree of subjective judgment, it follows that it will always be difficult
to mount an effective challenge on what may be called the conventional
ground of Wednesbury unreasonableness (Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223)."

5.3.5 In R v Commissioner for Local Administration, ex parte S [1999] ELR 102,

Mr Justice Collins noted at paragraph 5:

"That, as it seems to me, is merely an indication that the Court will, in

cases such as this, be very careful not to interfere unless it is clear that a
Wednesbury ground has been established. It is not right to go through the
decision with a fine tooth comb and to try to find errors, particularly if they
are errors of fact. It is only if there is a clear error of law, and that error is
one which may have affected the conclusions which were reached, that it
would be proper for the Court to interfere. If a particular conclusion was
fairly open to the Commissioner on the facts found, then this Court has no
jurisdiction to interfere with that decision."
 5.3.6 In R (on the application of Abernathy) v Local Government Ombudsman
[2002] EWCA Civ 552 the Court of Appeal held that the Ombudsman can
exercise his discretion not to investigate a matter on the basis that no
significant injustice was caused. At paragraph 14, Sir Swinton Thomas
stated:

"it is not arguable, in my view, contrary to what was Mr Justice Turner's

preliminary view at the initial hearing, that the Ombudsman cannot refuse
to investigate on the basis that no significant injustice was caused. On the
contrary, that basis for refusal is obviously sound. Given the
Ombudsman's focus on investigating maladministration which causes
injustice (see s21(1) LGA 1974) [now section 26(1)] and the limited
resources inevitably available to the Ombudsman, it is clearly right that he
must prioritise the investigation of those complaints which appear to him
to involve significant injustice as opposed to those which do not"

Sir Swinton Thomas then noted that "the Ombudsman has a very wide
discretion when deciding whether to investigate" and stated that "the 'no
significant injustice test' clearly falls within that discretion."

5.4 Recently, in the case of R (on the application of Rapp) v Parliamentary and Health
Service Ombudsman [2015] EWHC 1344, Mr Justice Andrews DBE considered the
previous case law relating to the Ombudsman and the Parliamentary and Health Service
Ombudsman (which has a very similar statutory scheme) and stated as follows:

"38. I was referred to a number of cases as to the nature and ambit of the role of the
Ombudsman, including R v Local Commissioner ex p. Liverpool CC (above); R v
Parliamentary Commissioner for Administration ex p. Balchin (No 1) [1996] EWHC 192
(Admin), [1998] 1 PLR 1; R (Doy) v Commissioner for Local Administration [2001] EWHC
361 (Admin), [2002] Env LR 11; Attwood v The Health Service Commissioner [2008]
EWHC 2315 (Admin); R (Maxwell) v Office of the Independent Adjudicator [2011] EWCA
Civ 1236; and R(Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC
3351 (Admin). The following general propositions can be extracted from that body of case
law:

i) The Ombudsman has no duty to determine questions of law. He/she is not acting as a
surrogate of the court in determining whether there has been unlawful conduct, but rather,
investigating a complaint of maladministration under the powers conferred on him/her by
statute.

ii) Maladministration is a different concept from unlawfulness; consequently in determining

whether the conduct complained of amounted to maladministration, the Ombudsman is
not constrained by the legal principles which would apply if they were determining whether
that conduct was unlawful;

iii) Unlawfulness is neither a precondition of, nor concomitant to a finding of

maladministration; there may be maladministration without unlawfulness, and vice versa.

iv) Even if, with the benefit of hindsight, it may seem obvious that the public body got
something wrong, the Ombudsman must look at the question of maladministration on the
basis of the information that the public body had at the relevant time, and not with the
benefit of hindsight;

v) It is for the Ombudsman to decide and explain what standard he or she is going to
apply in determining whether there was maladministration, whether there was a failure to
adhere to that standard, and what the consequences are; that standard will not be
interfered with by a court unless it reflects an unreasonable approach.

vi) However the court will interfere if the Ombudsman fails to apply the standard that they
say they are applying;
 vii) The question whether any given set of facts amounts to maladministration or causes
injustice to a complainant is a matter for the Ombudsman alone. Whatever it may think
about the conclusion reached, and even if it fundamentally disagrees with that conclusion,
the Court may not usurp the statutory function of the Ombudsman. It can only interfere if
the decision reached was irrational.

viii) An Ombudsmans report should be read fairly, as a whole, and should not be subject
to a hypercritical analysis nor construed as if it were a statute or a contract.

39. Therefore, even if what the relevant public body (in this case Ofqual) did or said turns
out in hindsight to have been based on a misunderstanding of the law, it will not
necessarily lead to a finding of maladministration by the Ombudsman, especially if the
legal issue is not entirely straightforward and the mistake was an understandable one for
a layman to have made."

Response to letter before claim

We now set out our clients response to the assertions raised in the letter before claim:

5.5 The Ombudsman has carefully considered your complaint and provided a fully reasoned
decision that has been scrutinised and upheld on internal review. Any Judicial Review
claim against the Ombudsman must set out established public law grounds as to why the
Ombudsman's decision is susceptible to Judicial Review. That you do not agree with the
Ombudsman's decision, or indeed the Council's decision not to apply to quash the Liability
Order, is not in itself a sufficient ground to challenge the Ombudsman's decision.

5.6 Importantly, and as noted in his final report, the Ombudsman is a guardian of public funds
and must safeguard those funds by only exercising his discretion to investigate claims
where it is likely that a local authority has acted with fault which has caused significant
injustice to a complainant. The Ombudsman receives thousands of complaints each year
and the courts have consistently held that the Ombudsman is entitled to prioritise the
investigation of complaints he receives. Further, the courts have routinely acknowledged
that it is a matter for the Ombudsman to determine whether any set of circumstances
amounts to maladministration, and he will have the widest possible discretion afforded to
him when doing so. Taken together, and in accordance with section 24A of the 1974 Act,
it will be a matter for the Ombudsman to decide in each case whether a complaint should
be accepted for investigation, and the courts will only interfere in the clearest of cases
where the Ombudsman is wrong in law.

5.7 In exercising his discretion not to initiate an investigation, the Ombudsman has
considered the background to your complaint by way of context and has taken all relevant
material into account, including your previous complaints in relation to related matters. It is
plainly appropriate for the Ombudsman to take this information into account and we do not
agree that your past complaints (which concern the same subject matter) are irrelevant
considerations. Having considered all of the material information, the Ombudsman's
assessment investigator has, on reasonable grounds, reached a decision that it is unlikely
that any maladministration by the Council will be found. That is a decision the
Ombudsman is entitled to take in accordance with his wide statutory discretion.

5.8 In particular, we note that your complaint to the Ombudsman relies on regulation 36A of
the Council Tax (Administration and Enforcement) Regulations 1992. Importantly, whilst
this legislation permits an authority to apply to court for a quashing order, it does not
require the Council to do so. It will accordingly be a matter for the Council's discretion, on
the facts of each case, to decide whether or not to apply to court for a quashing order.
The power of the Ombudsman is limited to scrutinising the way in which administrative
decisions are reached by local authorities, and not the merits of a decision itself.
Accordingly, the role of the Ombudsman in considering your complaint is to consider
whether there has been any service failure or maladministration in the manner in which
the Council has reached its decision not to apply for the Liability Order to be quashed.
5.9 It is denied that the Ombudsman failed to take into account relevant factors in reaching
their decision not to investigate your complaint, namely whether or not the High Court
challenge against the 2012 costs order had been withdrawn. The evidence suggests that
this was considered by the court before granting the Liability Order in 2015, with the court
being satisfied that sufficient grounds existed to justify making the order. We also note
that if you disagreed with the decision of the court it will have been open to you to appeal
or apply to set aside the Liability Order. Further, the Ombudsman has noted that it
remains unclear as to the status of the appeal by case stated and there is nothing to
suggest that the Council acted improperly in allocating payments towards the debt owed,
notwithstanding the appeal. Indeed, the Council has already satisfied a court that it acted
properly in doing so.

5.10 At the crux of your complaint is the decision of the Council to lift the suspension on
recovery action being taken against you following the granting of the 2012 costs order.
We note however in this regard that that Council did not in fact seek to take recovery
action against you in furtherance of the 2012 costs order. The purpose of a council tax
liability order is to provide a legal basis for a local authority to take further enforcement
steps against non-payers, such as obtaining charging orders and attachment to earnings
orders. In this case, even after the suspension was lifted, we are not aware of the Council
having taken any such steps. Instead, the action of the Council was limited to allocating a
payment from you (which did not correlate to an issued bill) against existing debt on your
account. We do not consider that this constitutes enforcement action or any conduct in
contravention of the Council's agreement not to take recovery action. This matter was
further considered by the court in 2015 which was satisfied with the actions taken by the
Council. We therefore consider that it was reasonable and within the power of the
Ombudsman to determine that the Council had not acted with fault in obtaining the
Liability Order.

5.11 Moreover, the Ombudsman's assessment is that the Liability Order was applied for by the
Council as you failed to pay the correct amount of council tax due, not because you
withdrew your High court challenge against a previous decision, and the court was
satisfied with the Council's basis for making the application. Whether or not the Council
was entitled to allocate your payment in 2015 to the earlier debt has been considered by
the court, at which you made representations in relation to your High Court challenge, with
the outcome being that the Liability Order was made. There is accordingly no basis for
finding that the Council had acted with fault in applying for the Liability Order and,
therefore, no grounds to require the Council to apply to quash the Order, particularly in
circumstances where the Council did not in fact take recovery action against you.

5.12 We do not accept your assertions that (i) the process followed by the Ombudsman was
'biased and unfair'; and (ii) that the Ombudsman failed to provide rational justification for
his decision not to investigate the complaint. The Ombudsman's procedure has included:

5.12.1 reviewing all relevant material;

5.12.2 preparing a provisional view based on that material;

5.12.3 seeking comments and representations from you on that provisional view;

5.12.4 preparing a final report taking into account your comments; and

5.12.5 conducting a review of the final decision following further comments and
information from you.

5.13 Notwithstanding your failure to particularise your allegations concerning the

Ombudsman's process, it is clear from the above that the Ombudsman's assessment
process has been extensive and included input from you at all stages. Your comments
have been given detailed consideration by the Ombudsman's investigators and it is
denied that the Ombudsman acted in a biased or unfair manner.
 5.14 Further, the Ombudsman's final report makes it clear that his rationale for not
investigating the complaint is due to there being insufficient evidence of fault by the
Council in making the decision not to apply to quash the Liability Order. A court was
satisfied in 2015 that the Liability Order should be made, and the Council is not under a
legal obligation to apply to have this order quashed. The Ombudsman considers it
reasonable for the Council to have considered this matter to be concluded following the
Liability Order being made in 2015.

5.15 In summary, the Ombudsman has carefully considered your complaint and reached a
decision which he was reasonably entitled to conclude that there is insufficient evidence
that the Council acted with fault in declining to apply for the Liability Order to be quashed,
so as to justify a full investigation. You have failed to establish any public law basis on
which the Ombudsman's wide statutory discretion to decide which cases to investigate is
susceptible to challenge in this case. As is clear from the case law above, the courts have
consistently acknowledged the breadth of his discretion and will only interfere in the
clearest cases on unlawfulness. That is a significantly high threshold to satisfy which we
do not consider you have got close to in this case. We therefore consider that any claim
for Judicial Review will be bound to fail.

5.16 We appreciate that you feel strongly about this matter and that you will find this response
disappointing. However, should you issue Judicial Review proceedings and should these
be unsuccessful at the permission stage or at a substantive hearing, the Ombudsman will
seek an order that you pay the costs of the proceedings. Otherwise, the costs of the
proceedings would have to be borne from public funds. Typically the cost if the
Ombudsman files an Acknowledgment of Service is approximately 2,000. Should the
matter go to a substantive hearing then those costs will be considerably higher.

6 Details of any other Interested Parties

We consider that North East Lincolnshire Council will be an Interested Party to any potential claim
for Judicial Review.

7 ADR proposals

In view of the terms of this response, we do not consider that ADR is appropriate at this stage.

8 Response to requests for information and documents

Not applicable.

9 Address for further correspondence and service of court documents

Bevan Brittan LLP

Fleet Place House
2 Fleet Place
Holborn Viaduct
London
EC4M 7RF

Ref: JT\75019\287

Yours faithfully

Bevan Brittan LLP