Local Government Ombudsman

PO Box 4771 Grimsby

Coventry North East Lincolnshire
CV4 0EH DN32 0

8 February 2019

Ref: 18 011 180

Dear Mr Lewis

Complaint against North East Lincolnshire Council

I am writing in connection with your letter dated 29 November 2018 concerning the above
referenced matter (please find enclosed Annex).

My letter functions both as a service complaint to express dissatisfaction about the standard
of service the Ombudsman provided and to explain why the cause for this dissatisfaction, i.e.,
a failure in the administrative process and how I have been communicated with, make it
imperative that my issues are considered by another officer (Section 2.2 of the “post decision
review manual v 6”).

There is also additional information within my submission which justifies reopening a

number of my previous complaints.

Yours sincerely

Enclosure
 Annex
Ombudsman Complaint Ref: 18 011 180
8 February 2019
Contents

Complaint reallocation request (to another officer)

Service Complaint

Additional information justifying reopening previous complaints

1. My complaint to the Ombudsman (ref 18 011 180) was about North East Lincolnshire
Council's gross negligence in handling matters I had raised about its bailiff contractor, Jacobs.
The Council failed to properly investigate my concerns, i.e., there was fault in the way it
responded to my representations about the gross negligence. This warranted compensation in
an amount in line with the Ombudsman’s published guidance on remedies in recognition of
the unnecessary time, trouble and inconvenience I was put to in pursuing my complaint
because the Council failed to properly respond to what I said.

2. The administrative process did not seem in question until Mr Lewis, the investigator who was
referred my complaint provided his draft decision on 21 November 2018 and invited me to
comment on it and/or point out any factual errors. His draft decision was so obviously
contrived and quite frankly an outrage. He had manipulated it, largely by the omission of
relevant facts, to create a limited, distorted and biased picture of the complaint I had actually
made to support his view that it would be more appropriately investigated by another
organisation. It was from this point that there was clearly a failure to follow the appropriate
administrative process; any success of progressing the matter was becoming increasingly
doubtful. This situation deteriorated to the point that communications had irretrievably broken
down by 29 November and was therefore imperative that the complaint was reallocated to
another officer.

Breakdown of communications from 21 November

3. I had expressed my outrage within minutes of Mr Lewis sending me the draft that the
organisation was a sham as it was just another document adding to the mounting evidence I
have supporting why the organisation truly exists. He exploited this to be my representations
on his proposed decision and proceeded to the final decision before I had chance to actually
comment on the draft. The Assessment Team Co-ordinator, Ms Burns, who had become
 involved, suggested a solution to get around this was that I ask outside the proper procedure
for a review, however, on querying her suggestion she appeared to agree with me that it
would be premature to do so1. I had in any event made Ms Burns aware of my suspicions that
Mr Lewis’ actions would be part of a contrived game plan to provoke me into wasting more
time justifying a review knowing already that he would reject it on the basis that my reasons
fell outside the limited criteria.

4. Following Ms Burns’ advice I provided my comments to Mr Lewis on 26 November (within

the time limit), thus more of my time was taken up unnecessarily; a significant amount
researching what investigators were expected to consider, for example when discretion should
be exercised. My email quoted Ms Burns’ advice i.e., ‘I suggest you email your comments on
the draft decision to Mr Lewis then so that he can consider them’; therefore he should not
have been under any illusion that I was requesting a review (they were categorically my
comments on the draft). Mr Lewis responded the day after confirming my suspicions (and
worse) as he had sent a rejection letter stating he did not consider my “request for a review”
fulfilled the criteria to be eligible for review. Notwithstanding that I had already predicted he
would do exactly this he had the front to deal with my comments on the draft as a review
request all the same.

5. Mr Lewis in his rejection letter stated that he would not review his decision just because I did
not agree with it and he did not consider I had either shown why the evidence he used
contained facts that were not accurate or provided new and relevant information that affected
the decision. He did however make a token gesture by singling out a couple of the many
points I had raised in my comments (but dismissed as misconceived) perhaps to highlight that
it was academic that his final decision was premature because he was not persuaded that he
needed to change anything in the draft. It is inconceivable that he could have credibly
believed that there was nothing in my comments on the draft that would have required
substantial changes before releasing it as a final decision.

6. However, on reflection, it is unlikely Mr Lewis did actually consider my comments on the

draft because the two points he referred to in his 27 November rejection letter related to
matters I had provisionally raised in an email to Ms Burns on 24 November. He would have
been forwarded this email which would have enabled him to produce his negligent response
taking only into consideration matters I had raised with Ms Burns, but essentially without

1
The Ombudsman does not review drafts only decisions (Section 2.2 of the “post decision review manual v 6”)
 having to consider my formal comments on the draft. To contextualise this, I became aware
relatively soon into researching what was relevant to submit as my comments, that the
procedure which Mr Lewis followed in his decision making was not in line with the
Ombudsman’s “Guidance on Jurisdiction”. On the strength of these provisional findings I
sought confirmation that my complaint would be investigated with the view to saving time I
would otherwise of had to spend; (i) identifying further anomalies, (ii) highlighting other
elements of my complaint that were not considered, and (iii) presenting all this as a formal
submission (comments on the draft).

7. Incidentally it was made categorically clear that my email to Ms Burns on 24 November did
not constitute my comments on the draft as the following contained in that correspondence
attests:

“P.S. These are not officially my comments on the draft, rather they are an indication as
to what I will submit if it is not possible to confirm that my concerns will be
investigated.”

8. The organisation which Mr Lewis was able to persuade himself would be more appropriate to
investigate (by omitting most of the relevant facts) was the Information Commissioner as he
had focussed in his draft decision solely on the element relating to a breach of privacy, i.e.,
the bailiff leaving an enforcement notice in a place accessible to persons other than the
intended recipient. What he did reveal however in his token response was a fundamental
misunderstanding of my concerns and total disregard for my representations in respect of the
questionable bailiff fee of £235. He appeared to concede in his 27 November rejection letter
(prompted by my email of 24 November) that this was not a breach of privacy issue but went
on to reveal (see below) that he had completely missed the point about why the bailiff fee was
in question:

“You say that the fee for a visit was questionable. However, there is no doubt that a visit
took place as you received the letter.”

9. The above is stating the obvious but is also just as lacking in explanation as the Council’s
investigating officer, Helen Isaac’s statement in her stage 2 review which showed, as did Mr
Lewis’s above, that none of anything I had gone to the trouble to explain (and re-explain) had
been taken into account. Ms Isaac’s statement that ‘the letter was left...in a place where it was
 likely to, and did, come to’ my attention2, was as lame a revelation as Mr Lewis’s, clearly
resulting from ignoring the facts I had gone out of my way to clarify. The council evidently
weighed up the situation and considered the chances remote of anyone other than myself
properly scrutinising the papers, and the Ombudsman, to whom the council was happy to
advise me to escalate the matter, could be relied on to deal with the complaint in the way that
it has and does in almost every other case. This is typical of how public bodies, when dealing
with concerns, manipulate the actual complaints to suit their own agenda. It is therefore not
only those involved at the council who have failed to act impartially, fairly and without
discrimination or bias when dealing with my complaint. Mr Lewis’s complicity in this matter
means he too has acted without regard for the Nolan Principles of Public Life so in breach of
the Ombudsman's Code of Conduct for employees as those principles are incorporated into
the code.

10. It had been made explicitly clear in several of the case papers that I had not questioned
whether a fee of £235 can legitimately be charged in respect of an enforcement visit. It was
explained to the council in my letter (20 November) escalating the complaint to stage 2, after
it was obvious in its initial outcome of 8 August that it had misunderstood and had
investigated the wrong issue. The following was stated in the letter to the council:

“The complaint centred on the data protection aspect of leaving letters of a sensitive
nature lying around for others to see and whether charging £235 for an enforcement visit

2
Ms Isaac had no grasp of the issues of the complaint which was evident by the way she handled the concerns. The
regulations on which she relied in support of the Council’s bailiff contractor (Jacobs) discharging ‘their
responsibilities in accordance with the relevant regulations’ were not in any way relevant. She had attributed her
decision to regulation 8 of the Taking Control of Goods Regulations 2013 (Method of giving notice and who must
give it). This merely imposes a duty on the enforcement agent to give the “Notice of Enforcement” in a particular way
for it to be deemed lawfully served. The lawfulness of Jacobs giving notice was not in question because the method
used involved Royal Mail delivering the statutory notice through my private letterbox. There were consequently no
issues arising, neither in respect of whether a visit had taken place nor of a personal data breach. This was in any
event the statutory notice and was served 7 weeks before the letter giving rise to my complaint which revealed the
nature of the bailiff’s visit through the envelope window and threatened the removal of goods and left in a public
place. Ms Isaac decided against upholding my complaint because she was ‘satisfied that an enforcement letter was
left by an Enforcement Agent in a place where it was likely to, and did, come to the attention of the debtor’. However,
she had erroneously taken into consideration regulation 8(1)(d) which provides that a notice would be lawfully
served, ‘where there is no letterbox, by affixing the notice at or in a place where it is likely to come to the attention of
the debtor’.

Had the complaint actually been about the statutory notice, even then regulation 8 would only have had relevance
from a perspective of whether it was deemed lawfully served. In other words, the regulations relied on by the Council
to find no fault with Jacobs for leaving a letter in a public place was enacted without any regard for a Data
Controller’s data protection obligations. Ms Isaac was satisfied on the strength of irrelevant and incorrect information
she had been provided by Jacobs that there was no infringement of my data protection rights. Subsequently the
Information Commissioner was satisfied that there was no infringement of my data protection rights from the same
irrelevant and incorrect information which the council had passed on from Jacobs. Neither the Council nor the
Information Commissioner had bothered to carry out an independent investigation into the complaint and just simply
allowed Jacobs to wrongly influence their decisions.
 made with the view to obtain payment was fraudulent in nature, if, as was evidently the
case, making contact was deliberately avoided.

The question of whether the £235 enforcement fee was correctly raised and lawful at the
particular stage of proceedings was never raised as an issue in the complaint, rather it
was the dubious circumstances surrounding the charging of it when evidently no contact
was attempted.”

11. Mr Lewis had more opportunities to change tack and carry out his investigation appropriately,
by taking into account the relevant factors, but ploughed on regardless. In addition to the 20
November letter to the council the same point was clarified in my 24 November email as well
as in my comments on the draft submitted on 26 November. The final correspondence, which
Mr Lewis refused to deal with was my email of 27 November (see below) which desperately
tried to hammer home what the actual complaint was and reemphasised as well the fault of the
council in refusing to allow the video footage to be independently reviewed:

“My complaint specifically concerns charging a fee for an enforcement visit (a fee
attributable to making a visit with the view to obtain payment)..if, contrary to what is
allegedly recorded on the bodycam, the bailiff did in fact manage to get into the building
but made no attempt to obtain payment.”

12. Mr Lewis announced in his final correspondence of 29 November that he would not reply to
any further correspondence. His decision, that he had nothing to add to his correspondence
with me, followed his vague statement that he had previously responded to my comments on
the draft decision and subsequent comments. His omission to specify which of my
correspondence he was referring to tends to back up my assertion that he did not take into
account my comments on the draft. This was very apparently a contrived and underhanded
approach to justify closing the complaint on the (false) basis that he had followed the correct
administrative process.

13. The fact is that Mr Lewis made no allowances for any of his administrative errors (despite
them being repeatedly made clear to him) and ploughed on regardless. Though he leaves out,
as an obvious matter of convenience, any specific reference to my correspondence, it can be
safely assumed that his purported response to my ‘comments on the draft’ was in fact his
response to my email alleging the misuse of public money and requesting it be brought to the
attention of Mr King. In respect of his response to my ‘subsequent comments’, this also had
no regard for my comments on the draft (they have been deliberately overlooked entirely) but
was his response of 27 November taking into account only the provisional concerns I raised in
 my email to Ms Burns on 24 November. Clearly the circumstances have been exploited to
deliberately obfuscate the administrative process in order to deny my legitimate right to
challenge Mr Lewis’ proposed decision and potentially any subsequent right to ask for a
review of a revised decision once my comments on the draft had been taken into account.

14. Until a final decision has been released which reflects all the comments I made on the draft,
there is no basis for the Ombudsman to consider any representations that may be construed as
grounds for a review.

15. Even if I had not made it clear that my 24 November email to Ms Burns was just an enquiry
(which I had), the way Mr Lewis responded in any event amounted to another breach of the
administrative process prescribed by the “post decision review manual”. As well as advising
Investigators that the Ombudsman only reviews decisions, not drafts, section 2.2 of the
manual also imposes a duty on the Investigator to pass the case for review if the complainant
provides information which meets the criteria for a review but the Investigator does not
consider the case should be re-opened. Section 2.5 goes on to provide example scenarios (A
through K) for Investigators to identify when a post decision letter from a complainant is (or
is not) a review request. Scenarios E and F (below) are relevant in a consideration of Mr
Lewis’s failure to pass the case for review in circumstances which required him to do so:

“E. The complainant questions the exercise of a discretionary bar, including giving
reasons why we should exercise our discretion. This is a review request and the case
should be passed for review.

F. The complainant says the complaint investigated is not what was put to us by them.
This is a review request and the case should be passed for review.”

16. Notwithstanding the substantive issue (refusing to consider comments on the draft) Mr Lewis
had clearly demonstrated in his rejection letter (for review) that he had identified information
I had provided which met the criteria requiring him to pass the case for review. In my enquiry
email of 24 November (I never requested a review) I had in fact questioned the exercise of a
discretionary bar (and gave good reason why discretion should have been used) as well
explaining that the complaint investigated was not what I put to them.

17. Mr Lewis decided himself that he did not consider the case should be re-opened and it was on
that basis that that he rejected the request for a review. His justification was that he did not
consider my request fulfilled the criteria to be eligible (I had neither shown why the evidence
 he used contained facts that were not accurate nor provided new and relevant information that
affected the decision). According to the decision review manual there was a failure to follow
the appropriate administrative process because despite Mr Lewis’s own view that the case
should not be re-opened the example scenarios in section 2.5 demanded second opinion (of a
reviewer).

18. This is not all that needs saying on the subject because although Mr Lewis took the incorrect
course of action he highlights an anomaly in his 27 November rejection letter regarding the
criteria required to be satisfied to be eligible for a review which he summarised from the
prescribed ‘review request form’ (below):

“We will only accept a review request if:

> We made our decision based on important evidence that contains facts that were not
accurate, and you can show this using readily available information.

> You have new and relevant information that was not previously available and which
affects the decision we made. We may share the new information with the
organisation you complained about, so they can consider it before we make a
decision on your review request.”

19. To begin with, there is arguably (depending on interpretation) different eligibility criteria
required satisfying in the review request form to that indicated in section 2.5 of the review
manual. The difference in general is that the review manual requires the case to be passed for
review when a complainant challenges or questions an absolute or discretionary bar and
includes his reasons. On the other hand, the request form requires that any challenge to the
decision based on evidence containing facts that were inaccurate must be shown to be so to
fulfil the criteria to be eligible for a review, and unlike the review manual there is no
provision to challenge an absolute or discretionary bar for eligibility.

20. Secondly, when compared with other organisations having facilities to review decisions, the
criteria needed to be met by the Ombudsman to be eligible is incomplete. For example the
Parliamentary and Health Service Ombudsman (PHSO), Office of Qualifications and
Examinations Regulation (Ofqual) and HM Inspectorate of Probation all include additional to
what the Ombudsman specifies as follows:

> we overlooked or misunderstood parts of your complaint or did not take account of
relevant information, which could change our decision.
21. It is a reasonable expectation that any organisation whose decision could be tested via judicial
review would include the above in its eligibility criteria for its own review regime because a
potential litigant bringing a public law challenge would, if the public body failed to take
account of relevant factors in its decision making, have legitimate grounds to argue that point.
Where a possibility of a public law challenge exists it would be in the authority’s interest that
any decisions against which a complainant would have credible grounds to question in the
high court were identified. Hence it is reasonable to say that any ground on which an
application for judicial review may be brought should, if raised in respect of the
Ombudsman’s decision, be passed for review.

22. Having considering this it would explain to some extent the anomaly that was noted (see
above paras 18-19) regarding the eligibility criteria differing in the review request form and
the review manual. That is to say that the review manual considers the questioning of a
discretionary bar to have met the eligible criteria for the case to be passed for review – this
aligns with another ground on which an application for judicial review may be brought (the
discretion of the public body was unreasonably or unlawfully exercised). The fact that the
prescribed form implies that this is ineligible criteria will unfairly deter a potential applicant
requesting a review. Either that, or as happened in my case, Mr Lewis was able to exploit the
misleading wording in the prescribed form to justify his decision to reject the case for review,
presumably hoping I was unfamiliar with the review manual requiring him to do the opposite.

23. This clearly needs to be addressed as a matter of general concern but in relation to my
particular case the failure to follow the appropriate administrative process primarily concerns
Mr Lewis proceeding to the final decision before I had chance to comment on the draft and
refusing to listen to reason thereafter. However, it should be noted that maladministration may
constitute criminal misconduct if a public officer entrusted to act impartially, fairly and
without discrimination or bias has been found to have wilfully neglected to act as required. It
would be difficult, in these particular circumstances, to imagine that a credible case could be
made in defence of an allegation that Mr Lewis’s actions were based wholly on improper
motives and amounted to a betrayal of public trust.

Mr Lewis’ involvement in case ref 09 014 453

24. I had cause to involve the Ombudsman in 2009 about North East Lincolnshire Council’s
appalling handling of a complaint about its bailiff contractor Rossendales. The case was
 initially handled by Mr Lewis who similarly manipulated the complaint to be one which could
be rejected for consideration on the basis that a legislative bar prohibited an investigation. In
this case he singled out two elements which he was able to tenuously link to matters which he
considered could be dealt with by the courts and therefore the complaint was deemed outside
the Ombudsman’s jurisdiction. In contriving this plan he had conveniently overlooked that
billing authorities are wholly responsible for their enforcement contractor’s actions.

25. My complaint to the Ombudsman was about the indefensible way the council dealt with my
concerns which condoned the complained of misconduct. However, Mr Lewis had angled my
complaint towards one whose objective was to reclaim fees back and retrieve illegally levied
goods, hence his view that it was open to me to pursue proceedings in the county and
magistrates’ courts which provided avenues for seeking those remedies. Neither remedy was
appropriate as I had not succumbed to the fraudulent demands, however, the fact that the
bailiff’s attempt failed does not make the misconduct any less serious.

26. The misconduct complained of concerned the bailiff charging fees for two separate
enforcement visits to my home that were evidently not made, and an attempted visit, insofar
as the bailiff left an enforcement notice threatening the removal of goods in an insecure place
which by chance was still there when I arrived home (a personal data breach). He had slid the
edge of the envelope in the gap between the doorframe and door leaving the largest proportion
of it protruding insecurely on the outside of the main communal entrance to the building held
only by friction. Rossendale's explained that when the bailiff received no reply to the ringing
of the door bell he left a note in an envelope addressed to me under the security door. The
council accepted the explanation and remained satisfied that there was no reason to
investigate further even after I had stated it was impossible to pass a letter under the security
door (I had tried to myself).

27. Another element of the complaint related to my discovery that the bailiff had allegedly seized
my car and added a fee for doing so (I knew nothing about the levy). It transpired that the
total demand on the letter left insecurely outside the building included a statutory fee for
levying distress. Rossendales fees were not itemised until later, after I had submitted a Subject
Access Request (SAR) to find out what the total demand was made up of. The response to the
SAR attributed one of the charges to a levy fee but did not at that point identify what goods
had been levied. As the bailiff was obliged by law to hand the associated paperwork to the
debtor (and I had not been given it) the logical assumption was that the charge had been added
 dishonestly which is what I alleged in my formal complaint to the council. I was unaware that
it was a vehicle that the bailiff impounded until a number of months later when I was sent a
copy of the document prompted by my formal complaint to the council. The paperwork
revealed that the levy did not relate to my car and it appeared that the bailiff randomly
selected a vehicle because it was parked close to my home. All the circumstances pointed to
the document being produced afterwards (to cover their tracks) when the anomaly came under
the spotlight.

28. Mr Lewis was not persuaded to look again into my concerns after I had submitted my
comments pointing out a number of anomalies in his provisional view. Apart from failing to
address the majority of the anomalies, his responses in respect of those he did choose to
address were typically lame. For example, incorrect sums were recorded in his provisional
view in relation to how much I owed at the time bailiffs were instructed, as well as it being
stated that I had made no payment over a period for which I had in fact paid three instalment
amounts totalling £252. His defence for the inaccuracies, particularly addressing the
significantly less amount I owed than was stated at the time bailiffs were instructed was
simply that ‘the Council was, nevertheless, entitled to instruct bailiffs to recover the sum
owed’.

29. I commented that it was irrelevant that Mr Lewis viewed that the proper course for resolving
the complaint was through the courts, owing to the fact that my complaint was directly about
the council's unacceptable handling of the complaint procedure (responsibility ultimately lies
with the council for its bailiffs). It was clarified that the legality of the fees were in question
and not actually the amount. This element was inappropriately dealt with by Mr Lewis
because his view differed from mine about who and what the complaint was about despite it
being my complaint. He remained of the view that the proper course for resolving the
complaint was through the courts, even though there was no remedy that way because the fees
were never paid for the reasons previously explained.

30. I expressed dissatisfaction in the way Mr Lewis dealt with my concerns which resulted in a
review being carried out on the Ombudsman’s behalf by Mrs Sykes who similarly dealt with
the matter improperly. She agreed that my complaint was outside the Ombudsman's
jurisdiction because I had a right of appeal to the Magistrate's Court. The remedy through the
Magistrate's Court is limited to a person whose complaint concerns an irregular levy
(regulation 46 of SI 1992/613) and wishes to reclaim fees and/or retrieve illegally levied
 goods. Neither remedy was appropriate for the reasons already mentioned, though it is worth
noting that technically the right of appeal to the Court was not mine but the person’s whose
vehicle details appeared on the alleged seizure documentation discovered later when the copy
was obtained. However, more importantly the real issue was the suspected dishonest and
illegal construction of the notice of seizure presented when Rossendales considered it in its
interests to cover their tracks.

31. The council had a duty to refer this matter to the police as well as reporting its findings to the
County Court from which the bailiffs obtained their certificates, in accordance with the
Distress for Rent Rules 1988. Rule 8 (as amended) prescribes two forms, one for an aggrieved
person who wishes to make a complaint to be completed (Form 4) and the other (Form 5) for
the local authority to complete to notify the court of a complaint it upheld against a
Certificated Bailiff. The council's Head of Income & Payments, Joanne Robinson, admitted to
being aware of the correct procedure but her reason for failing to follow it was ‘that
Rossendales as his employer were best placed to deal with the matter’ (she decided it was
appropriate on that occasion after dealing with my complaint).

32. The council's loyalty to its enforcement contractor amounted to nothing less than gross
negligence. The police did not investigate the criminal aspects and the failure of the council to
submit Form 5 denied the court the opportunity to determine whether these agents were still
considered “fit and proper” individuals to hold bailiff certificates. The bailiff against whom
the alleged misconduct was not upheld by the council continued working for Rossendales and
the other whose alleged misconduct was upheld no longer did though gained employment as a
certificated bailiff with a different firm. Consequently, the safety net in place to help protect
the public from the kind of malpractice I had been subjected to had failed because both
retained their certificates.

33. Notwithstanding the available remedy expressed in the Ombudsman’s review being
misconceived I did make a misguided attempt to take this route but my application was
outside the statutory time limits so doing so achieved nothing except to add to the unnecessary
time, trouble and inconvenience I was put to in pursuing my complaint because the Council
failed to properly respond to what I said.

34. However, the whole jurisdiction issue was discredited because of an article published by the
Ombudsman dated April 2010 which I forwarded to Mrs Sykes’ Personal Assistant (Mrs J
 Burns) in support of my appeal. The article focussed specifically on the practice of levying on
vehicles that did not belong the debtor which it considered in no uncertain terms to be a
matter for which the authority could expect a finding of administrative fault against it by the
Ombudsman (which would be the subject of a public report). The article included the
following which is inconsistent with what the Ombudsman claimed could not be investigated:

“The Ombudsman has dealt with at least four unreported complaints when cars parked
in the road were levied on, but did not belong to the debtor......These practices are likely
to result in a finding of administrative fault by the Ombudsman.”

35. Given the number of findings of administrative fault against councils in the article referred to
and, the decision that my complaint was outside the Ombudsman's jurisdiction it is reasonable
to suspect that decisions are made on a lottery basis or even a discriminatory one. Mrs Sykes
even agreed with Mr Lewis that these elements of my complaint remained outside the
Ombudsman’s jurisdiction, despite the fact that an appeal to the Magistrate’s Court was not
possible (it was time barred) owing to the time that had elapsed dealing with the complaint
with the council and Ombudsman.

36. Mrs Sykes in her review did expand on some elements of the complaint that were not
considered out of jurisdiction which were the basis for Mr Lewis’ decision. However, she
concluded irrationally that they had not caused any significant injustice and upheld Mr Lewis’
decision to discontinue the investigation. One of these deserves particular focus on here as it
stands out to be the most perverse. Mrs Sykes supported the Council’s decision to accept
Rossendales version of events regarding its visits and the way letters were allegedly left
despite it being proven that the explanations were untrue. In her barefaced and shameful
denial of responsibility (below), her refusal to take appropriate action she attributes to a non-
existent obstacle of being unable to prove how the letters were or were not left:

“This is not an issue the Ombudsman will pursue. You live in an apartment block and
access is through a security door and there is no communal post box. You say you did
not receive letters left by the bailiffs on two occasions they say they visited. There is no
realistic way of proving that the letters were or were not left and I would not expect the
bailiffs to take other actions to prove visits took place. In the circumstances the
Council’s stance seems reasonable and the Ombudsman would not achieve anything
further by investigating this issue.”

37. The Ombudsman's view was wholly unjustified because proving whether the letters were or
were not left was irrelevant. The complaint was about the council’s shameful handling of the
 concerns which defended the contractor's misconduct. As previously explained, the council
was satisfied with the bailiff’s version of events and accepted that the letters had been left
under the security door when in fact it had been proven they could not have been. This was
not solely reliant on my word as it was open to the council to independently verify it.
However, although the council accepted the bailiff’s version of events it also provided its own
alternative theory for what might have happened once it was evidently more in its own
interest (and the bailiff's) to account for the events differently.

38. Another of her comments which gave away clues about the negligent and sub-standard way
she undertook her legal duties was that, “any allegations of fraud by the bailiffs are for the
police to deal with, not the Local Government Ombudsman”. This conflicts with the
Ombudsman's own advice which warns investigators not to be deflected by a complainant’s
use of terms because the action complained of will also be maladministration and the duty is
on the investigator to define the complaint in the Ombudsman’s terms. Investigators are also
told that in some cases there may be grounds to suspend consideration of the complaint to
allow a police investigation (for example) but that does not mean that a complaint can be
rejected for that reason, it just confirms all the more that a complaint that potentially raises a
question of crime is within the Ombudsman’s Jurisdiction. The course of the Ombudsman’s
investigation will inevitably alter but in what way would be dependent on the findings of the
criminal investigation. All this tells us is that it was grossly negligent of the Ombudsman to
reject the complaint on the basis that a legislative bar prohibited an investigation.

39. Mrs Sykes was obliged at the very least to refer the matter to the police if she had satisfied
herself in the Ombudsman’s own terms that aspects of the complaint concerned fraud.
Ironically, the matter was first reported to Humberside Police anyway whose Economic Crime
Section informed me, in no uncertain terms, that it was the findings of the council /
Ombudsman on which the force would rely to decide whether there was evidence of criminal
intent and until then it remained a civil matter.

40. The council was potentially leaving itself open to a finding of administrative fault against it
for either one or the other of two matters regarding the alleged enforcement visits. Firstly, if it
was found that those visits were not made, the council would be responsible for the bailiff
dishonestly charging for them. Alternatively, if those visits were made, it would be
responsible for the bailiff carelessly leaving letters that had not come to my attention and gone
astray. However, a false account had already been given by Rossendales for what happened
 (letters under the security door). The impossibility of passing a letter under the door was not
the only reason why Rossendales account was false, because the visit made in respect of the
letter I saw for myself wedged in the gap, related to one of the visits claimed by Rossendales
to have left under the door and there was no notification of a levy. The council confirms this
in one of its formal complaint responses as follows:

“Rossendale’s have already stated in their letter to you dated 21st July 2009, that when
they attended your property on 5th March 2009 and levied on a vehicle they left
notification of this levy in an envelope marked for your attention under the security
door.”

41. The fact that there was not a notice of distress left in the envelope (as Rossendales claim)
supports what I have already said about it being produced afterwards to cover their tracks. The
council’s priority had turned to devising a theory for what might have happened which would
ultimately cast doubt on the assertion that the bailiff had fraudulently charged for visits he did
not make. This was dealt with by Mr Smith in a subsequent formal complaint response; in
hindsight he must have been assured by officers more senior that if the complaint was
escalated his decision would be defended with even the LGO being on board. It would
certainly answer why Mr Smith offered an alternative explanation on the behalf of the bailiff
to mitigate the seriousness of his misconduct when Rossendales had already committed to
giving its account for what was in question. The false account for what happened was a
serious enough trigger in itself for the council to investigate Rossendales for dishonesty,
therefore, proving whether or not these visits had been made would, dependent on the
council/Ombudsman’s ability to impartially look into the complaint, become a separate matter
for the police. Mr Smith’s solution was as follows:

“You state in your letter that you did not receive any correspondence regarding these
visits and believe that no such visits took place.

In our meeting we discussed the possibilities of the visits taking place and how the
correspondence could have been left at your property.

You stated that the removal documentation was left in the hinges of the door as there is
no communal post box and the only way to deliver mail would be either to call a
neighbour to be let in or there are prescribed times when the door is left unlocked for the
postman.

Knowing this about the property it is possible that that the visits did take place and the
correspondence was left in much the same way. Although I agreed that this probably
 was not best practice, given the problems with entering the building it was reasonable to
state that if the first 2 Bailiffs left their correspondence the same way then the visits had
taken place.

I must remind you that given the security door to the building this was the most
reasonable place at the time to leave the letters.

I am unable to uphold this part of your complaint as you are asking me to state that the
visits never took place. Given that you had received other post further down the line
from a visit it is reasonable to state that the same actions were taken for the first 2 calls.”

42. Mr Smith had inexcusably covered for Rossendales lying about leaving letters under the
security door (which was proven) to shift the focus from that, to whether the council could
justify upholding the fraudulent aspect of charging for work that was not carried out
(requiring a higher burden of proof). It would have occurred to any fair-minded and informed
observer, having considered the facts that the purpose of this exercise was to enable the
council to define the complaint in its own terms thereby taking the proven issue out of the
equation, in readiness for the Ombudsman who would be primed to exploit the burden of
proving that the visits never took place to justify not upholding the complaint.

43. The council knew that all the trouble I had already been put to researching the relevant laws
and setting out all the issues etc. had been unnecessarily added to by Rossendales dishonestly
addressing the concerns, yet it consciously added more injustice by not only defending the
dishonesty but actively encouraging it. The council’s (and Rossendales) conduct was
incontrovertibly dishonest by the objective standards of ordinary, reasonable and honest
people yet the Chief Executive whose responsibility it was ultimately to remedy the
wrongdoing and ensure a disciplinary procedure was instituted to address the council’s
complicity was perversely satisfied with how my concerns were investigated and even
defended the way Mr Smith dealt with the matter (see below):

“The approach taken by the Bailiff in leaving letters wedged in the door or under the
door.

This is dealt with in some detail in the Stage Two response and our investigator met
with you and has gone to significant trouble to establish the detail of the position.

I do not uphold this part of your complaint. It is difficult to leave documents at your
property. We challenged Rossendales but it is not realistic to expect them to be able to
prove that the documents were left.”
44. It was problematic from a burden of proof perspective for the Chief Executive to state that the
visits never took place so he exploited this by singling it out for consideration to justify a
finding of no fault, hence omitting to factor in the dishonest claim of leaving letters under the
door, which would have justified him upholding the complaint. There was no excuse for his
failure to act in good faith, for example he could not have claimed to be ignorant of the facts.
He was aware that Mr Smith had ‘gone to significant trouble to establish the detail of the
position’, therefore admitting inadvertently that his objective was to cover up potential fraud
and had gone out of his way to do so by coming up with an alternative version of what
happened on the bailiffs behalf even though Rossendales had already dishonestly given a
different account. This was criminal negligence because the Chief Executive’s actions
amounted to a betrayal of trust and violation of the laws which impose a duty on an officer in
his position to act impartially, fairly and without discrimination or bias.

Shameful cover-up of criminal misconduct in case refs 15 016 673, 15 020 295 and 17 003 081

45. The Ombudsman’s refusal to investigate the above complaints, coupled with the obscene
amount of public resources devoted to justify not doing so is indefensible. All are attributable
to complications caused due to an alleged outstanding sum I have relating to my 2012/13
Council Tax liability. The council managed several times to engineer default in respect of the
in-year account by allocating payment to the outstanding sum, thus causing additional costs in
respect of recovery action it took which would have been unnecessary had payment been
allocated correctly. The council is legally obliged (in these circumstances) to allocate payment
to the account which it is most beneficial to the debtor to reduce.

46. The council was also at fault because it had suspended recovery of the sum until court
proceedings had been determined (I had appealed to the high court), however, it falsely
claimed subsequently in a witness statement to the magistrates’ court that it believed I had
withdrawn the appeal and therefore no longer held recovery of the disputed sum. The council
was criminally liable because it is beyond all reasonable doubt that the council knew it had
not been withdrawn due to self-incriminating evidence that accompanied its witness
statement3.

3
The council presented perjured evidence to the court to persuade the judge that it was entitled to allocate payment to
the disputed costs (leaving the balance of the year’s account that should have been reduced in default).
47. Due to a late Council Tax payment I lost the right to pay by instalments which entitled the
council to demand up-front the remaining liability for the year. The council subsequently
asked the Magistrates’ court to issue a summons requiring me to appear before the court to
show why I had not paid the amount outstanding. The papers also informed me that the
application for a liability order would not be made if the amount outstanding, plus £70 costs it
had allegedly incurred to issue the summons, was paid before the date of the hearing. I paid
the outstanding amount but only £10 in respect of the costs as I was aware Council Tax
summonses were dealt with by an automated process and issued in batches of several hundred
at a time and knew that the law only entitles the council to expenditure it had incurred.

48. Nevertheless, the council applied to the Magistrates’ court for an order to enforce the
remaining £60 costs it had allegedly incurred to issue a court summons. I defended the
application on the grounds that the sum sought by the Council was an unreasonable claim for
costs. However, an order for the costs was granted even though no breakdown had been
provided (there was insufficient information for the Justices to reach a proper judicial
determination of whether the costs claimed represented costs reasonably incurred by the
Council). The court advised me that a Liability Order could only be challenged by an appeal
to the High Court by way of either a case stated on a point of law or a judicial review.

49. I subsequently applied to the Magistrates’ court to state a case for an appeal to the high court
to challenge the court granting the order on a number of points including questioning the
lawfulness of the court awarding the costs without evidence from the council to support them.
A raft of obstacles put in the way by the court to prevent the matter progressing has ensured
the case which was instituted in November 2012 has never been determined by the high court.

50. Apparent progress was being made after a claim for permission to bring judicial review
proceedings for a mandatory order requiring the Justices to state a case prompted the court to
serve a draft in July 2013 in respect of the case stated application. The mandatory order was
additional to (not part of) the case stated appeal and had nothing to do with the question of the
cost’s lawfulness. The judicial review claim ran alongside the case stated appeal which I
intended to progress (the case stated) once or if the judicial review for a mandatory order
succeeded in bringing about the desired result (obtaining a statement of the case). The judicial
review claim (which was later withdrawn) was categorically not an application for a judicial
review of the costs.
51. Upon obtaining a draft of the case I proceeded to make representations in line with the
relevant procedure rules which I served on the court and council in August 2013, i.e., I
resumed the case stated appeal questioning the lawfulness of the costs, thanks to the pressure
exerted by the judicial review claim. The application to state a case was I believed back on
track and awaited the final case stated to be delivered so I could progress the appeal to the
next stage.

52. I wrote on 20 November 2013 to notify the administrative court, among other matters, that I
wished to withdraw the judicial review claim for a mandatory order (the high court advised
there was no longer a need for further action on their part as the draft had been served). The
Magistrates’ court and council were sent copies the following day so they were informed
about this and alerted to my concerns about the delivery of the final signed case (the appeal I
was able to resume) overrunning the prescribed time limit at that point by two months.

53. The final signed case should halve been served on or before 10 September 2013 so by the next
time I wrote to the Magistrates’ court on 10 January 2014, service had overrun the prescribed
time limit by four months. The letter, which brought this to the attention of the court and of its
obligations under rule 78 of the Magistrates’ Courts Rules 1981, was also copied to the
council so it was fully informed about what was happening. The court did not respond which
left me speculating as to whether the judicial review claim was effective in prompting the
draft case only and not the final case until recognizance had been agreed. It was on this basis
that I wrote to the court on 13 February 2014 and queried whether the progression of the
appeal was conditional on entering into recognizance and if so I wished to make arrangements
for it to take place. Again, I copied the letter to the council so it knew I was making
reasonable efforts to overcome all the obstacles I was facing and that the appeal had not been
abandoned.

54. Having still not had a reply, I phoned the court a number of times on and around 3 March,
which elicited an email response from the Justices’ Clerk, stating that either that day (6
March) or the following the position regarding the case (advising on the next steps) would be
set out and communicated to me in writing. Despite this undertaking, and further calls to the
court in March, no communication was ever sent. I wrote to the Justices’ Clerk on 22 April
requesting a certificate stating that the application had been refused and explaining why, so I
could repeat the process of seeking a mandatory order requiring the case to be stated (the
letter again was copied to the council). Neither a Certificate of refusal to state a case was
 provided nor was a reply to the communication received. I contacted the court next on 9 July
2014 to enquire into whether HMCTS had any arrangements in place to restrict my contact
with the court, and if so in what way. There was never a reply.

55. I next went to the Advisory Committee, who handle complaints about Magistrates, to raise
concerns about the impossible situation. The Judicial Office advised complainants to address
their concerns to the Committee Secretary. Neither an acknowledgement nor an outcome was
received in relation to the complaint though it transpired that the Justices’ Clerk who I had
been unable to get responses from in the matter I was complaining about also doubled as the
Secretary to the Committee. Further opportunities were given the secretary but her failure to
respond made it necessary to escalate the matter to the Judicial Ombudsman. The matter was
raised in September 2014 and took until January 2017 (over 850 days) to uncover the full
extent of what the court service had been up to. The Judicial Ombudsman’s shortcomings
were also highlighted along the way, firstly for the four months it initially took to reply, then
for the mishandling of the complaint thereafter which implicated him in a cover up of serious
criminal wrongdoing.

56. The Ombudsman eventual obtained copies of three separate letters which were purportedly
sent to me by the Justices’ Clerk in her capacity as the Secretary to the Advisory Committee
which I had obviously never received (I was sent the copies on 23 February 2016). He
apologised for the delay in writing to me which was attributable the significant amount of
time it took to obtain the complaint file from the Advisory Committee.

57. The first letter, dated 16 September 2014 was an outcome to my judicial complaint of 2
September 2014 dismissing it for spurious reasons. Though there was no copy of the case
stated nor did it say when it was allegedly sent the letter also said that a certificate of refusal
to state a case for the consideration of the high court was not issued by the Justices because
they had not refused and had already sent the final case to me. The second and third letters
were dated 29 May and 6 July 2015 respectively and both stated: ‘this matter was responded
to by the Humber Advisory Committee on 16 September 2014 and I enclose herewith a further
copy of that reply’.

58. The Ombudsman was angling towards discontinuing his investigation on the strength of the
dodgy copies of the complaint outcome and replies I had been sent. He reiterated that my
grievance to him related to the Advisory Committee not dealing with my complaint, implying
 that the discovery of the outcome 17 months after it was allegedly sent sufficiently satisfied
him that my complaint had been dealt with appropriately. I was asked to consider the letters
and then advise whether I wished to continue, close or amend my complaint to the
Ombudsman. There was no hint in the correspondence that it had been considered (or likely to
be considered) what was the most obvious explanation, i.e., that the outcome and replies had
never really been sent to me and were produced afterwards to cover their tracks.

59. I informed the Justices’ Clerk in a subsequent email (copied to the Ombudsman) that I had
been made aware of four letters she had allegedly sent, and that I had copies of three of them
but not one of the final case stated which she referred to in her 16 September letter. I also
asked when it was originally sent and requested a copy so as I could proceed with my
application to the high court. Shortly afterwards I wrote to the Ombudsman (see below) in
response to his correspondence asking whether I wished to continue, close or amend my
complaint:

“As you will be aware from the email I sent on 25 February 2016 to Mrs Watts, I never
received the letters which have been obtained from the Advisory Committee until you
sent copies. Neither did I receive the final case stated, which in the 16 September 2014
letter Mrs Watts says was sent to me. Moreover, I have still not been sent a copy, nor do
I know when that document was sent.

This all puts a different perspective on the complaint. Had I received the reply in
September 2014, the complaint would have turned to a different matter which would
essentially have been to focus on when the final case stated had been produced/sent and
why it had not reached me. Incidentally, it can now be verified that the Deputy
Chairman of the Advisory Committee who dealt with the complaint had mistakenly
understood the issues to relate to the Magistrates’ decision at the court hearing. My
complaint letter clearly defined the issue, i.e. the mishandling of the application to state
a case for an appeal to the High Court which were events leading on from the judicial
decision referred to by the Deputy Chairman. The complaint letter was also clear in
stating that the detail supplied was just preliminary information to get an investigation
underway.

Regarding the issues as they now stand, it would seem an investigation should turn to
one of establishing why there was never a reply to several communications querying the
missing document (final case stated), which according to the relevant procedure rules,
should have been served on or before 10 September 2013.

From August 2013 when the representations upon the draft case were submitted up until
September 2014 (Advisory Committee complaint), the Court was contacted a total nine
times in connection with obtaining the finalised document. All communications were
 ignored except one (6 March 2014) to which Mrs Watts replied with an undertaking to
have written communication setting out the position with the case and advising of the
next steps. This undertaking was never acted on.

In answer to your 23 February email, after considering the letters I now hold it would be
most appropriate to amend my complaint to consider what is set out above.”

60. In response the Ombudsman said he could not take forward my concerns, because the new
issues (brought about by the changed circumstances) were no longer in his jurisdiction. It was
with indifference to the fact that the complaint outcome had never really been sent to me that
he said he could only consider my concerns about how the Advisory Committee handled my
judicial misconduct complaint (as if fraudulently constructing replies afterwards is the done
thing). The case stated document discovered allegedly to have already been sent to me was
not a factor the Ombudsman would take into consideration, even though it was his enquiries
which revealed the declaration and despite the Justices’ Clerk’s refusal to furnish the
document and say when it was originally sent pointed to the copies of the complaint outcome
etc. already obtained being fraudulently constructed. He therefore advised that concerns about
the Court not responding to my communications about the missing document would need to
be made to the Court Manager and asked if I would inform him within seven days if I still felt
I had a complaint that fell within the Ombudsman’s remit (the Advisory Committee’s
handling of my complaint).

61. I stated in my reply that the complaint did concern the Advisory Committee’s handling of my
judicial misconduct complaint and reiterated all the circumstances supporting why the
miraculous appearance of the outcome and letters allegedly sent to me well over a year
previously would not justify the Ombudsman averting his focus from the Advisory
Committee’s failure to address the judicial complaint. It was pointed out that if the document
existed and had already been sent once there would be no issue for it to be sent to me again
and the reason it was not, would in all probability lie in the fact that the final case stated had
never been sent nor produced, and in respect of not being sent, that could also be said of the
16 September 2014, 29 May and 6 July 2015 letters. It was also implied that the significant
amount of time it took to obtain the case file from the Advisory Committee pointed to the
letters being produced in response to the investigation.

62. Essentially all the concerns I had raised were in relation to the mishandling of my complaint
so fell under the Ombudsman’s remit including indisputably the questionable complaint
 outcome purportedly handled by the Deputy Chairman of the Committee which was
dismissed erroneously for the reasons previously stated (see para 59 above). The Ombudsman
confirmed in March 2016 that my complaint had been transferred to the Investigating Team
for consideration. In April the Investigating Officer informed me that he had started his
investigation and would write a report and recommendations for the Ombudsman who would
then consider the papers and make a decision on the case and submit a draft report to the Lord
Chancellor and the Lord Chief Justice for comment.

63. The decision was sent to me 23 May 2016 and had so obviously been handled from a
perspective of covering up the dishonesty which was what the complaint in essence was
about. The Ombudsman had u-turned the decision to conduct a full investigation and his
reasons for doing so amounted to a denial of the truth which was that the letters were
dishonestly constructed afterwards. Though he had noted a minor error in the address in all
three letters he decided that the complaint dismissal letter and replies had been sent and
satisfied the Advisory Committee had properly dismissed the complaint in accordance with
the disciplinary legislation and guidance.

64. He had tactically distorted the circumstances in order to lay foundations upon which he could
justify a decision to refuse to accept the complaint for a full investigation because it did not
raise issues which could enable him to make a finding of maladministration. The entire
Investigating Officer’s report (there were no apparent recommendations) was contrived
around achieving this objective. All three letters had one digit wrong in the postcode,
presumably planted when they were later constructed as a red herring. The postcode error was
likely to have been a diversionary tactic to shift focus from the dishonesty because it enabled
the Ombudsman, in conjunction with the letters produced afterwards, to consider a token error
which would be so minor he would be justified in dismissing the complaint for investigation.

65. Notwithstanding the postcode charade, the Ombudsman’s account under the report’s
“background” heading was completely wrong. For example the Ombudsman was under the
false impression that the Judicial Review (which was withdrawn, see above paras 45-52)
challenged the lawfulness of the Magistrates’ court costs and that it was the only high court
application instituted (there were two).

66. The Ombudsman was also under the wrong impression that the application (to Judicially
Review the decision) was not proceeded with due to the Council responding with an offer
 acceptable to me. There was no reason why the chronology of events accompanying my
complaint (the Ombudsman’s reference) would have given rise to this belief. However, it is
clear from the Ombudsman’s response on being challenged that his wrong assertions (in both
instances) were attributable to selective attention whilst he considered the submission.
Although he conceded that his report was inaccurate he defended his casual approach with an
excuse that it was not something that would affect the outcome of the decision because
correspondence about a ‘case stated’ was outside the scope of the regulated disciplinary
procedures.

67. The Ombudsman’s response to this and other points challenged were indicative of a cover up
of serious criminal misconduct of the Ministry of Justice. It was relevant to enquire into the
‘case stated’ and within the Ombudsman’s jurisdiction from the perspective of uncovering the
truth about the Advisory Committee’s missing items of post. My complaint to the Advisory
Committee would have been eligible for investigation on the grounds that it raised a question
of misconduct requiring disciplinary action to be taken if it could have been established,
contrary to the claim by the Justices’ Clerk, that the ‘case stated’ document did not exist and
was not sent. It was imperative that the Ombudsman insisted on disclosure of the document
whether or not it was part of the Advisory Committee complaint file as it was a key piece of
evidence4. This is the minimum one would expect in the initial stages of an investigation
given that the concerns had been stated to be that I had not received what was known at that
stage to have been 4 items of post that the Justices’ Clerk had said were sent. The Council
claims to have regard to the ‘Nolan Principles of Conduct Underpinning Public Life’ which
are the basis of the ethical standards expected of public office holders. However, there is no
evidence in the complaint response that these have been applied to challenge the serious
criminal misconduct, particular the third of the seven principles (Objectivity)5.

68. Furthermore, the Ombudsman wrongly defined the complaint to be about a judicial decision
in order to justify dismissing it on the grounds that it did not raise a question of misconduct,
hence why he said that correspondence about a ‘case stated’ was outside the scope of the
regulated disciplinary procedures. It is inconceivable that he believed this was true. Had the

4
The Lord Chancellor, the Ministry and its Associated Offices, in particular the Judicial Office and the Judicial
Conduct and Investigations Office, and the Judicial Appointments Commission must provide the Ombudsman with
all the information needed relating to the subject matter of any investigation. (Judicial Appointments and Conduct
Ombudsman - Candidate Information)
5
Objectivity – Holders of public office must act and take decisions impartially, fairly and on merit, using the best
evidence and without discrimination or bias
 complaint been about the contents of the case stated (assuming it existed and had been sent)
then it would have concerned a judicial decision, but it did not, the issue surrounding the
document was that it had been claimed by the Justices’ Clerk to have existed and sent to me
when neither was true. This was attributable to misconduct not a judicial decision.

69. In any event, the regulated disciplinary procedures on which the Ombudsman relied to dismiss
the complaint were improperly applied. The Ombudsman relied on rule 32(b) of the Judicial
Conduct (Magistrates) Rules 2014 to determine that the complaint was correctly dismissed by
the Advisory Committee in its alleged outcome, i.e., that ‘the complaint related to a judicial
decision which did not raise a question of misconduct’. The Advisory Committee could have
been considered correct that the complaint related to a judicial decision but not correct that
the complaint did not raise a question of misconduct.

70. The matter would be more closely linked with judicial case management which is also
specified under rule 32(b), along with a judicial decision. But even taking this into account,
the Magistrate who is obliged to state a case for the opinion of the high court is governed by
the Magistrates Court Rules 1981, so in that respect it is not a case management decision but
his duty and if he fails to perform it and/or respond after repeated requests, a complaint made
about it would unquestionably raise a question of misconduct.

71. The Ombudsman also relied on rule 32(c) to dismiss the complaint on the grounds that ‘the
action complained of was not done or caused to be done by a magistrate’. What was meant
presumably was that it was not the magistrates who were dealing with correspondence,
therefore the misconduct was attributable to the Justices Clerk. However, the Magistrates
Court Rules are clear that it is the Magistrate whose decision has been questioned who is
responsible for deciding when a case stated shall be refused. But this is all academic anyway
because the real failure lie in the Ombudsman’s denial that the ‘case stated’ document was
material to the investigation. It was within his jurisdiction to have required it and if a copy
was forthcoming, insisted that an original electronic file as it was saved on the MoJ’s system
was made available to back up when it was produced. It was the Ombudsman’s duty to make
proper checks in respect of the copies of the three alleged letters but he evidently did not.

72. I had first contacted the Justices’ Clerk on 25 February 2016 (see para 59 above) to pursue the
case stated which I had learned had allegedly been sent to me on an unknown date. I
continued pursuing the matter without success until eventually submitting a complaint to
 HMCTS customer complaints on 25 June 2016 which was referred back to the Justices’ Clerk.
I prompted HMCTS in November after having received no response and again in December.
After involving the Parliamentary Ombudsman and my MP I was replied to by HMCTS on 3
January 2017 who revealed 7 more letters (copies were attached) that had allegedly been sent
which I had not receive; not just in respect of the HMCTS complaint but some dating to
before the complaint of 2 September 2014 to the Advisory Committee.

73. It transpired that the Justices’ Clerk had allegedly posted a response to the 25 June customer
complaint to me on 22 July 2016. Another letter dated 28 November 2016 was allegedly
posted in reply to a forwarded email I sent HMCTS customer complaints to chase up a
response in which a further copy was allegedly enclosed of the Justices’ Clerk’s customer
complaint response. The earliest undelivered item of post went back to 19 December 2013.
This was an alleged letter acknowledging receipt of my representations of 19 August 2013
upon the draft case (see above para 51) with the alleged final case stated enclosed (though the
copy was unsigned). Though there was no date relating to when permission was granted, the
letter stated that an extension had been sought to submit representations owing allegedly to
the Council having not received the draft case. The position regarding proceedings (advising
on the next steps) was set out i.e., that the case must be lodged within 10 days of receiving it
etc., and it requested that I acknowledge receipt of the correspondence and enclosure. The
next letter in order of undelivered post was dated 20 February 2014 which acknowledged
receipt of my letter of 13 February 2014 seeking arrangement of a recognizance hearing (see
above para 53). The letter said that the Court had agreed to state a case which was sent on 19
December 2013 and recognizance was no longer required. A further copy of the case was
allegedly enclosed and the position reiterated regarding the next steps if I wished to pursue the
appeal.

74. The next undelivered item was dated 1 May 2014 which acknowledged receipt of my letter of
22 April 2014 requesting a Certificate of refusal to state a case (see above para 54). The copy
obtained said that the Court had already stated a case for the opinion of the high court which
was sent to me under cover of correspondence dated 19 December 2013 and 20 February
2014 therefore the Court would not be issuing a certificate of refusal to state a case. A further
copy of the case was allegedly enclosed and the position reiterated regarding the next steps to
pursue the appeal.
75. The last item of undelivered post (relevant to the appeal) was dated 15 April 2016. The
alleged letter was a reply to my email of 25 February 2016 advising the Justices’ Clerk I had
not received and was unaware of the letters obtained by the Judicial Ombudsman (see above
para 72). The Justices’ Clerk’s letter said that the Court originally issued the final case under
cover of correspondence dated 19 December 2013, and subsequently on 20 February and 1
May 2014 and that none of these had been returned to their office as undelivered. The position
regarding the next steps to pursue the appeal was reiterated and requested again that I
acknowledge receipt of the correspondence and enclosure.

76. On 5 January 2017 I contacted HMCTS by email with the Justices’ Clerk and the Council
copied in to confirm that none of the letters had been delivered and were seen for the first time
upon being sent copies on 3 January 2017. I expressed a preference for future correspondence
to be sent by email and asked that a signed copy of the final case was sent to enable lodging
the application with the Administrative Office (the copy held was unsigned and marked ‘file
copy’). The Court confirmed that the email request of 5 January had been received and an
undertaking given to provide the signed final case as requested which it served as an
electronic copy under cover of an email on 16 January 2017.

77. Returning to the negligent handling of complaints 15 016 673, 15 020 295 and 17 003 081.
The Ombudsman had opportunity to bring an end to the Council’s relentless pursuit of a non-
existent debt which had been unlawfully engineered. There is no question that the actions of
all those involved in these complaints (as in the case of Mr Lewis and Mrs Sykes in the
previous matters) were based wholly on improper motives and amounted to a betrayal of
public trust. The following is a list of those involved whom I consider to have wilfully
neglected to act impartially, fairly and without bias:

Complaint ref Investigator Reviewed Pre-Action (Judicial Review)

15 016 673 Colin Oxley Andrew Hobley N/A
15 020 295 Chris Upjohn N/A - Refused N/A
17 003 081 Jeanette Gooch Rob Draper Jason Tandy (Bevan Brittan)

78. I will limit my comments here to the most recent complaint (ref 17 003 081) which is most
deserving of a mention because it more seriously over the previous two highlights complicity
of the taxpayer funded law firm representing the Ombudsman who responded to my letter
before action in respect of a proposed Judicial Review claim.
79. My complaint and subsequent representations had been meticulously set out to eliminate any
potential ambiguity about what exactly the issues were about. The Ombudsman has no
credible defence for believing that the most recent papers I had obtained from HMCTS
customer complaints were claimed to be evidence that a judicial decision had been made
about the disputed 2012 costs. The papers relating to the upheld complaint merely constituted
incontrovertible evidence that I had not withdrawn the high court appeal challenging those
costs. It was therefore a fact and contradictory to what the council had attributed its decision
to for allocating monies paid on the in-year account to the disputed costs.

80. The Ombudsman needed only to take into consideration two established facts to arrive at the
decision that there was fault in the way the council managed my Council Tax account and
subsequently refused to deal with my complaint. Firstly, I had not withdrawn the high court
appeal and secondly, the basis on which the council no longer held action in attempting to
recover the outstanding amount was that I had withdrawn the appeal disputing the costs in
2013. The Council attributed its decision to allocate payment to the costs, to having ‘no
further reason to believe that the costs were being disputed’ because the ‘application for the
Judicial review of the costs' had been withdrawn (para 73 of its witness statement).

81. The Ombudsman was not required to question any judicial decision made in the Magistrates’
court in 2015 nor were the merits of the appeal to the high court challenging the costs a
relevant factor to be taken into account. Therefore the decision to dismiss the complaint on the
grounds that the Ombudsman could not investigate these matters because they were linked to
legal action was disingenuous because there was no requirement to investigate them. It was
also entirely irrelevant that the Ombudsman had not seen any document which stated I was
not liable to pay the 2012 costs. All that the Ombudsman had confirmed by this was that the
assessment was made on an entirely misconceived understanding of the issues. If the
Ombudsman’s view that a finding of fault would hinge on the existence of a document stating
I was not liable then he has condoned the dishonest and underhand way the Council went
about securing the £60 costs, which required abusing the Magistrates’ court by unlawfully
putting my in-year Council Tax account into arrears which as a bonus earned it another £60
costs.

82. The investigator viewed the complaint from a perspective that the Council can be excused
from its legal obligations to act fairly if a court order was applied for and granted, even when
there is evidence proving it had been applied for wrongly. That’s why the investigator took
 the view that there was no suggestion of fault in the Council’s decision not to apply to quash
the liability order or cancel the costs (a view based simply on the court’s decision) even
though she held incontrovertible evidence that the decision was wrong. It had been spelled out
to the investigator in the complaint why magistrates’ courts were given powers to quash a
liability order if it was clearly made in error (the cost of a high court application where the
facts are indisputable is unwarranted). The investigator clearly failed to take this into account
because she was perversely influenced by the Council telling her that the matter was
concluded in court, in 2015, and the matter closed. How she had the front to put that in her
decision is incomprehensible considering the entire focus of the complaint centred on
evidence questioning why the council served a summons in 2015 and previous complaints to
the Ombudsman raised concerns about how the council was at fault in managing my Council
Tax account which led it to wrongly issue the summons.

83. It was also inexplicable why the investigator put in her decision that if I thought the court
should not have issued the liability order then I could have taken legal action, in 2015, to
apply to have it set aside. The outcome letter from HMCTS customer Investigations Team,
which supported my complaint, showed how futile trying to challenge a liability order was
and it was attempting to do so in 2012 which had caused an incalculable amount of injustice
since and which is why the present (and previous) concerns have been raised with the
Ombudsman. It is therefore irrational that the Ombudsman would have expected it reasonable
that a similar course of action was embarked upon in 2015, especially when the question to be
asked in every case is, ‘is it reasonable to expect this complainant in the circumstances of this
case to use the alternative right or remedy?’ (Guidance on jurisdiction).

84. However, what surpassed everything from a perspective of irrationality and showed the
investigator to be grasping ever increasingly at straws to defend the indefensible was that in
her decision she noted that the summons was for £424 so the disputed £60 costs would not
have covered the full amount of the arrears. This was inexcusable and demonstrated that she
had entirely misunderstood the issues of most relevance. She had not grasped what had caused
me to have been summonsed for payment of £424. The amount becoming due of £424 in 2015
was caused by the statutory facility for paying monthly being withdrawn. This was the sum
deemed by the council to be the in-year outstanding liability and the sum which it demanded
immediately – attributable to the failure of the council to manage the council tax account.
85. I was lawfully entitled to continue paying monthly on account of my obligation being met to
make payments on time and in sufficient amount. I was only deemed not to be entitled (and
summonsed for the lump sum) because the council had erroneously withdrawn the statutory
facility for paying monthly.

86. My comments on the draft decision gave the investigator, Ms Gooch, a second chance to
reconsider the complaint as I had actually put it to the Ombudsman, rather then from a
perspective that was contrived to pave the way for invalidating on the basis that most of the
issues had been considered in court. There was little evidence reflected in the final decision
that my representations had been properly considered. If anything it was on the whole even
more contrived, for example she inaccurately said in the final decision that ‘the Council
suspended recovery of the £60’. This alteration of the facts was material to her finding of
insufficient fault of the Council because the contrived report hinged on the premise that it was
recovery action against me which had been suspended when in truth it was the disputed £60
costs which had been suspended until the outcome of the proceedings.

87. Ms Gooch has no defence for what she did because it was explicitly stated in a letter
supporting my comments on the draft ‘that the £60 court costs, which you dispute, will be
suspended until the outcome of the proceedings’. This letter dated 19 July 2013 was sent to
me by the Council’s Deputy Monitoring Officer, Mrs Richardson-Smith, who was also the
same officer appointed to deal with my presently discussed formal complaint and refused to
carry out any investigation. Another document supporting my representations revealed that it
was also Mrs Richardson-Smith who was copied in on emails to the Justices’ Clerk dealing
with correspondence in pursuit of the case stated appeal that were sent after the letter upon
which the Council relied of 20 November 2013 that I had withdrawn the appeal.

88. The relevant paragraphs of the Council’s witness statement also accompanied my comments
on the draft which showed ultimately that the Council’s decision to allocate payment to the
costs, was attributed to having ‘no further reason to believe that the costs were being
disputed’ because the ‘application for the Judicial review of the costs’ had been withdrawn.

89. A review of the decision was carried out on behalf of the Ombudsman by Assessment Team
Leader, Rob Draper. I had attached representations to my review request demonstrating the
irrationality of the determination in the decision that there was ‘insufficient evidence of fault
by the Council’. It was irrefutable from the submission that the Council misallocated payment
 to the disputed sum based upon a dishonest claim and it was that fault which had led to an
inordinate amount of injustice which could have been avoided had it not made the error it
made before it took recovery action in the Magistrates’ court.

90. Mr Draper’s outcome simply added to the absurdity of how the complaint had been dealt with
which was consistent with the draft and final notices that demonstrated that the complaint
issues had nowhere near been grasped (or it was that impression which the Ombudsman
wanted to portray). He had maintained the misconceived notion that the outcome of HMCTS
Complaints Team’s investigation was claimed by me to be supporting evidence that a judicial
decision had been made about the disputed costs. He wrongly assumed that it was because
HMCTS had upheld my complaint about the service that I argued the Council was at fault in
not seeking to quash the 2015 liability order.

91. Mr Draper had also not grasped that the outcome letter, along with copies of letters obtained
which had never been delivered over a period of 4 years, were provided for no other reason
than as proof that the appeal had never been withdrawn. His appreciation was clearly lacking
in any event as to the severity of the injustice (it had protracted over several years) because he
merely referred to HMCTS outcome as the upheld complaint about the service I received from
the courts in 2012/13. If this wasn’t enough he made it even more obvious that he had not
grasped the issues by noting that the HMCTS outcome ‘makes it clear it had not dealt (and
could not deal) with any judicial decisions’ and that I had not said that my ‘appeal against the
2012 costs of £60 had succeeded’. If he genuinely believed either of these were relevant and
this was a typical display of the level of incompetence then it must be true that the majority of
complainants who escalate concerns to the Ombudsman will be treated grossly unfairly. I had
no more expected HMCTS Investigations Team to have dealt with any judicial decisions than
I expected the Ombudsman to; it simply had no relevance whatsoever. How could he have
understood the issues if he considered it relevant whether the high court challenge of the costs
had been successful when the evidence shows that HMCTS had prevented the appeal
proceeding?

92. The evidence which Mr Draper was unable to see which linked the events that justified the
Ombudsman finding fault and recommending the Council apply to quash the 2015 liability
order was that the disputed £60 court costs were suspended by the council until the outcome
of the proceedings, (b) the council no longer held action in attempting to recover the
 outstanding amount on the basis that I had withdrawn the appeal in 2013, and (c) I had, in
fact, never withdrawn the appeal disputing the costs.

93. The most telling sign that the maladministration in the handling of this case crossed the line
into criminal misconduct must have been Mr Draper’s statement that I had repeated many of
my arguments about the court proceedings and the Council’s references to them which were
not directly relevant to the Ombudsman’s consideration of my complaint. This tells you
everything you need to know about where the Assessment Team Leader, Mr Draper’s
loyalties lie, and the negligent and sub-standard way he undertakes his legal duties. The
Ombudsman had not actually taken into consideration all the relevant facts of my complaint
and as a consequence the decision was unlawful. The reality is that any concerns deemed
worthy of a finding of fault were eliminated from the issues considered relevant to my
complaint. Therefore the whole shameful procedure was a sham contrived to justify
dismissing the complaint on the grounds that a statutory bar prohibited the Ombudsman
investigating.

94. The merits were explored of having the decision taken to judicial review. A letter before
action proposed the grounds of challenge to be that (i) the procedure followed was unfair and
biased; (ii) it had failed to consider relevant factors but taken into account irrelevant factors,
and (iii) it had failed to provide any rational justification for its decision. The Ombudsman
instructed law firm Bevan Brittan and the response dealt with by Mr Jason Tandy. His
handling of the matter was consistent with Ms Gooch and Mr Draper’s. He demonstrated
manifestly that he had lacked any understanding of the issues that were most relevant to my
complaint. Despite the issues being explained from almost every conceivable angle he had
failed to grasp or account properly for the following:

• the nature of the high court applications i.e., that the case stated was the
application challenging the costs and the judicial review was for a mandatory order

• the letter of 20 November 2013 on which the council relied that I had withdrawn
my appeal challenging the costs related to the judicial review claim being
withdrawn (the case stated appeal had never been withdrawn)

• the Council’s Deputy Monitoring Officer, Mrs Richardson-Smith was copied in on

emails to the Justices’ Clerk dealing with correspondence in pursuit of the case
stated appeal that were sent after the letter of 20 November. It was also Mrs
Richardson-Smith who was appointed to deal with my formal complaint and
 refused to carry out any investigation and warned that no further acknowledgement
or response would be provided to any correspondence

• evidence showing that the council had obtained the contents of the 20 November
letter from a source which proved indisputably that I had continued pursuing the
case stated application challenging the costs and it was the judicial review for a
mandatory order that was no longer necessary and had been withdrawn

• denial that the disputed £60 costs were suspended until the outcome of the
proceedings (contrived to be that recovery action against me had been suspended)

• denial that the Council attributed its decision to allocate payment to the costs, to
having ‘no further reason to believe that the costs were being disputed’ because
the ‘application for the Judicial review of the costs’ had been withdrawn

• denial that I had not considered the matter to be concluded following the Liability
Order being made in 2015 and obvious failure to grasp why the provision existed
for a Liability Order to be quashed was because the cost of a high court application
where the facts are indisputable is unwarranted

• perversely considered it relevant that the Ombudsman was unclear as to the status
of the appeal by case stated

• perversely considered it was reasonable for me to attempt another high court

appeal against a magistrates court’s decision in light of the Ombudsman knowing
that it was attempting to do similar in 2012 which has caused an incalculable
amount of injustice since (the reason why the present and previous concerns have
been raised with the Ombudsman).

95. Mr Tandy was unpersuaded by the representations made in the letter before claim which
argued that the Ombudsman had erred in law in determining that there was insufficient
evidence to find the offending Council had acted with fault, and therefore decided against
investigating the concerns. In summary, the Ombudsman’s legal firm backed up the decision
on the basis that the Council, which had been shown manifestly to have obtained a Council
Tax Liability Order erroneously, was not at fault for deciding against applying to quash the
Order because it was under no legal obligation to (disregarding the duty to exercise discretion
with good judgement).

96. He also implied that the Ombudsman could rely on the court turning down a claim
challenging his decision or would rule in favour of the public body as this was routinely done.
 Either way he said that any claim for Judicial Review would be bound to fail and put the
frighteners on by making the following statement:

“...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.”

97. They are mindful of the need to use public funds carefully whilst spending significant
amounts of money appointing a law firm. They obviously don’t see the irony of being an
organisation publicly funded to oversee fair play, which at the same time invites those already
caused injustice by their Council to have that injustice increased significantly, by engaging in
their own process, knowing that their grievances will be dealt with in an unfair and biased
way. The ultimate deterrent which is the threat by way of litigation costs if you disagree with
the Ombudsman’s findings has become standard practice for so long that the wrong in it is no
longer seen by officials.

98. A public trust issue arises from the obvious unfair handling of this matter by the
Ombudsman’s appointed law firm. From consulting the Solicitors Regulation Authority’s
Principles 2011 it is clear that at least two violations of the Principles can be shown. A
solicitor would be in breach of Principle 2 if he failed to act with integrity – if he failed to
behave in a way that maintained the trust the public placed in him and the provision of legal
services, this would contravene Principle 6.