Section 42 - Freedom of Information Act 2000 (legal professional privilege)

[LRanger]

Hello everyone,

In my honest opinion, the Local Government and Social Care Ombudsman ("the Ombudsman") is not acting impartially. I have discovered that they are outsourcing their casework to the large law firm Bevan Brittan LLP (costing the taxpayer a fortune in the process). It is reasonable to believe that Bevan Brittan LLP, being paid public funds, considers the government as its client, and that includes local government.

I have complained about this issue, and the response that I got back was very ambiguous, and deliberately so in my honest opinion (in my honest opinion, that response was drafted by Bevan Brittan LLP), which was as follows:

"I understand you have queried what the legal basis is for the Ombudsman using temporary staff to help us assess a backlog of housing cases. That authority is contained in Section 28 of the Local Government Act 1974 - and is simply an attempt for us to provide timely advice and support to people who are waiting to hear whether or not we will be proceeding to an in-depth investigation into their complaint. All of the decisions made were signed off by staff with delegated authority from the Ombudsman."

In my honest opinion, the Ombudsman deliberately glossed over the following issues raised in my complaint:

1) All casework of this kind managed by Bevan Brittan LLP carries legal professional privilege ("LPP"), and therefore cannot be subject to scrutiny from complainants, or indeed the judiciary. Accordingly, there is a lack of transparency.

2) Bevan Brittan LLP would consider the Ombudsman as its client, and arguably the government, including local government, and is therefore not acting impartially.

Evidently, the Ombudsman does not deny these allegations.

The Ombudsman alleges that Bevan Brittan LLP's services are and were used to help it to assess a backlog of cases. I would take that with a pinch of salt in terms of their being any such backlog. Notwithstanding that, I think the word "assess" in this context is of profound concern. I take that to mean that that Bevan Brittan LLP is assessing how cases should be decided, if it is not, for all intents and purposes, making decisions on casework of this kind, whilst, of course, it is reasonable to believe they are not acting impartially for reasons aforesaid.

I have sent the Ombudsman a letter before claim using the Judicial Review pre-action protocol, whilst trying to establish exactly what Bevan Brittan LLP have been doing in this regard. Today, I got a response back from Bevan Brittan LLP arguing that that information carries legal professional privilege.

I am considering making a freedom of information request, but section 42 of Freedom of Information Act 2000 ("FOIA") is problematic. I understand that this exemption is a qualified exemption, subject to the public interest test, meaning LPP can be overridden in the public interest and is not unchallengeable in the context of FOIA.

Does anyone have any thoughts as to how best to make such a freedom of information request?

Also, does anyone know how best to challenge (unlawful) conduct of this kind in terms of public law principles?

Sincere thanks.

[atticus]

I expect that the law firm in question considers that its client is the Local Government and Social Care Ombudsman.

Are you complaining that this Ombudsman is instructing solicitors?

[LRanger]

I expect that the law firm in question considers that its client is the Local Government and Social Care Ombudsman.

And the government, which includes, but is not limited to, local government. I would argue that, at the very least, there is a real possibility of that happening. Moreover, as set out in post 1, the Ombudsman itself does not deny this.

Are you complaining that this Ombudsman is instructing solicitors?

Instructing solicitors to defend litigation is one matter, but outsourcing work that this Ombudsman should be doing itself, in a manner shrouded in complete secrecy, for the purposing of shaping casework decisions is quite another. It is comparable to one party making submissions and presenting evidence to a judge in litigation, and during a hearing, in complete secrecy. That kind of arrangement is hardly fair in my honest opinion, and defies the principles of natural justice.

Given that this Ombudsman does not deny a conflict of interest, I would argue that there is actual bias, and, at the very least, apparent bias. The modern test for apparent bias in English law was established in Porter v Magill [2001] UKHL 67, as you probably know. The House of Lords held that the question is:

"Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

[echat11]

A lot of Ombudsman services, whether it's LGO, FOS, LeO etc, the employees have 2 gigs, their job, then an additional job with the Ombudsman.

So, regardless of whether it's directly or not, the assessment of your case there will be a 'hint' of 'unfairness'.

If you 'believe' that it's been 'unfair' you need to complain to your MP, the minister in charge of the LGO etc.

[LRanger]

A lot of Ombudsman services, whether it's LGO, FOS, LeO etc, the employees have 2 gigs, their job, then an additional job with the Ombudsman.

So, regardless of whether it's directly or not, the assessment of your case there will be a 'hint' of 'unfairness'.

If you 'believe' that it's been 'unfair' you need to complain to your MP, the minister in charge of the LGO etc.

Interesting. I was thinking of trying to get more information via the Freedom Information Act 2000 first, but I suspect that will be like trying to squeeze blood out of a stone insofar as this Ombudsman is concerned, but a First Tier Tribunal (Information Rights) may eventually compel this Ombudsman to disclose that information.

Looking at the respective guidance published on the Information Commissioners Office website, this states as follows:

"What types of legal professional privilege are there?

In the Bellamy decision, the Tribunal acknowledged that there are two types of privilege within the concept of LPP:

• litigation privilege; and,
• advice privilege.

Litigation privilege

Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice about proposed or contemplated litigation. There must be ongoing litigation or a real prospect or likelihood of litigation, rather than just a fear or possibility. For information to be covered by litigation privilege, it must have been created for the dominant (main) purpose of giving or obtaining legal advice, or for lawyers to use in preparing a case for litigation. It can cover communications between lawyers and third parties so long as they are made for the purposes of the litigation.

Litigation privilege can apply to a wide variety of information, including advice, correspondence, notes, evidence or reports.

Advice privilege

Advice privilege applies where no litigation is in progress or contemplated. It covers confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice.

The legal adviser must have given advice in a legal context; for instance, it could be about legal rights, liabilities, obligations or remedies. Advice from a lawyer about financial matters or on an operational or strategic issue is unlikely to be privileged, unless it also covers legal concerns such as advice on legal remedies to a problem."

Clearly, advice privilege is the most applicable, but even then it is not clear whether this Ombudsman's outsourcing of casework to Bevan Brittan LLP meets that criteria. I would argue that that arrangement was not put in place to cover the Ombudsman's legal concerns, but rather to help it allegedly clear a backlog of cases (which I doubt) by this Ombudsman's own admission.

This Ombudsman allegedly has conflict of interest rules, and has a published policy in that regard:

https://www.lgo.org.uk/information-c.../our-structure

With that in mind, I do wonder what conflict of interest check it did in terms of the outsourcing of casework to Bevan Brittan LLP. Evidently, Bevan Brittan LLP frequently acts for local authorities:

https://www.legal500.com/rankings/ra...an-brittan-llp

It is hard for me to accept that there is no conflict of interest in that regard.