R (on the application of Gallagher and another) v Basildon District Council

Planning process — Travellers – Publication of information — Local government ombudsman (LGO) – Defendant council publishing report including information concerning children in connection with removal of travellers from unauthorised site — LGO finding maladministration and recommending payment of compensation — Defendants rejecting recommendation – Claimants applying for judicial review — Whether defendants acting unlawfully by refusing to follow recommendation — Application grantedThe claimant travellers lived on an unauthorised site in the defendant council’s area. Following the exhaustion of the planning process, direct action had been authorised to remove the travellers from the site. In January 2006, as part of the planning process, the claimants provided the defendants with personal information, including the name and ages of their children, their medical details, copies of letters from medical practitioners treating the children and information relating to their education. That information was compiled into a report prepared for the defendants’ development control and traffic management committee. The report was published as part of the agenda for a meeting and personal information had been made available to the press and the public as well as being distributed at the meeting and posted on the defendants’ website. The claimants complained to the local government ombudsman (LGO) over the decision to publish the information; they asserted that publication had breached the principles of the Data Protection Act 1998, violated their rights under Article 8 of the European Convention on Human Rights and was illegal at common law. It was contended that the conduct amounted to maladministration, causing injustice that should be remedied by a formal written apology and the payment of reasonable financial compensation. The LGO’s report concluded that the defendants’ decision to publish the information amounted to maladministration and recommended that the defendants should send a letter of apology and pay £300 to each claimant. The defendants rejected the recommendation to pay compensation. The claimants applied for judicial review of the defendants’ refusal to follow the LGO’s recommendation.Held: The application was granted.The first issue raised by the claim was the correct legal test for determining the legality of a local authority’s refusal to follow the LGO’s recommendation. The findings of a local commissioner as to maladministration, and of injustice arising from that maladministration, were binding on the local authority concerned; the only way to dispute the findings was to challenge the report: R v Local Commissioner for Administration for England, ex parte Eastleigh Borough Council [1988] QB 855 considered.However, sections 30 and 31 of the Local Government Act 1974 did not require a local authority to implement the LGO’s recommendation. The only sanction for failure was local publicity, leaving the electors to determine whether the local authority had behaved acceptably. So long as the decision not to follow the recommendation was not Wednesbury unreasonable or otherwise flawed on a recognised public law ground, it could not be challenged, and the authority did not have to have cogent reasons for its decision: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.The second issue was whether the defendants’ refusal to follow the LGO’s recommendation was unlawful. If a local authority put forward reasons for rejecting a recommendation, the court was entitled to examine carefully whether they had taken into account relevant considerations and had weighed those considerations in a way that a reasonable council should have done. In the instant case, the defendant’s had failed to do so. Accordingly, the decision should be quashed.Lindsay Johnson (instructed by the Children’s Legal Centre) appeared for the claimants; Galina Ward (instructed by the legal department of Basildon District Council) appeared for the defendants; Tony Child (instructed by Beachcroft LLP) appeared for the interested party.Eileen O’Grady, barrister