Read All About It!
I am writing three more posts to conclude this saga. I told it in slow motion in 25 instalments in my Blog. It started many months ago when I attempted to complain about an insane plan to put cycle lanes and red lines along a very narrow, already congested main arterial road lined with shops, offices and restaurants that is known locally in Newcastle as Gosforth High Street.
Here, in this post, I focus on my attempt to get Bindmans’ LLP to write a Pre-action Protocol letter to initiate judicial review proceedings against the Local Government Ombudsman. Although I gave them a 100-page dossier they said the case was “unarguable” and “bound to fail” and their professional rules precluded their writing the letter, mine as a barrister (non practising) likewise precluded me
In the next, I shall suggest that loyalty or, more banal, work imperative pre-empts integrity; this leading people to call black white and defend the indefensible. Here my closing letter to BLM, solicitor retained by Bindmans LLP to deal with my threatened action in the Small Claims Court for Negligence and Breach of Contract,and a summary of the breakdown of checks and balances that should provide an early warning of a cock-up and process legitimate complaint.
The third and last will deal with the cost and the long-term consequences.
Death of a Nightingale flagged up how a small group of political, highly egocentric zealots hijacked the State’s Special Educational Needs policy closing over 100 special schools in the UK. Those zealots never factored in human fallibility, especially their own. They never realised how the pursuit of equality could, at times, be extremely unfair and totally ignore diversity.
This series of posts deals with another set of political highly egocentric zealots, the cycling lobby notably Sustrans, the national cycling charity based in Bristol, Britain’s first Cycling City. They have hijacked the State’s Transport system. Suppressing complaints has helped to entrench them, aided and abetted by the ratchet of State inertia and Ministerial and Parliamentary dictat. So the waste, the idiocy and the public inconvenience continue and necessary spending on electric autonomous vehicles is almost totally ignored .. until you break the ratchet.
Human fallibility causes cock-ups – Human culpability perpetuates them. Both compounded by bureaucratic ineptitude and cover-up; no shortage of white paint!
Q 1. Is this prima facie evidence of evidence of maladministration by Newcastle City Council?
Q 2. Is this evidence that Ms Kim Burns, an Assistant Legal Ombudsman, empowered to decide, was biased when she dismissed the evidence?
Extract from the Executive Summary of the 100+ page dossier given to Bindmans LLP
Part 6 Errors & Omissions in Ms Kim Burns,Assistant Local Government Ombudsman’s decision
- She states “As I have seen no evidence to suggest Cabinet or the Overview and Scrutiny Committee received inaccurate information about cycling figures when making its decision to approve the scheme and there is no evidence cycling figures were the motivation for the traffic scheme I have no grounds to criticise the Council.” She ignored the “overarching aim” of the Ambitions Bid all about cycling figures and the projections in Appendix 9 where Sustrans, the national cycling charity commissioned by the Council factored into them the exponential growth of cycling in London.
The figures given to me by the Project Manager for the scheme as reason for the scheme were consistent with its “overarching aim”, and he actually says so in a letter that he sent to Mr. C. Thorpe on 4 December 2014 “we are tasked with growing cycling in the city to a significant proportion of all trips under five miles. On numbers this could easily mean that to be successful we will need to see up to 3,000 cyclists a day using this corridor to comply with 20% of all trips under five miles.”
She is happy to dismiss all of this and ignore the professional survey conducted by Duncan Young showing that only about 70 cyclists a day use the High Street. She also ignores figures in National Cycling to Work Statistics 2001 -2011 and its implications for Newcastle. This does suggest that the Cabinet received inaccurate information and were very much an important part of the motivation
- In relation to Salters Road Car Park she states “…As I understand it the Council’s parking data was based on the use of cameras rather than relying on paid parking data ….in the event Cabinet received detailed background papers which included an overview of the reduction of spaces in the car park, residents’ concerns about that and the proposals to provide parking elsewhere.”
She ignored the photographic evidence I sent her showing that the car park is full in an evening. There is reference to alternative parking on Moor Road North and South para10.9 of Newcastle City’s response to the LGO> and “parking outside existing properties to the South of the High Street where the residents currently park on the cycle lane.” These options have no merit whatsoever. The City Council says that its survey suggests that only 44% of visitors to Gosforth are car based, 41% on foot, and 66% public transport, cycling and walking. 10.25 Newcastle Council’s Response to the Ombudsman>. These figures cannot be right at all material times.
Ms Burns ignored the letter from Duncan Young of 12 June and the details of the 2,142 responses of those travelling to the Gosforth High Street with figures that call them into question. Much more seriously she ignored my reference to the new Gym and to the 78 organisations that use Trinity Church as a city hub. Any survey there in the evening – a pity it was aborted p31-33> – would totally invalidate the city’s survey. Not many people would go to meetings in Trinity Church on foot on a cold and wet winter’s evening. Nor would they go by bicycle. Most likely by car and by bus and, if by car, they would need a nearby car park.
My own particular concern here is the difficulty to be faced by the Tyneside Decorative & Fine Arts Society that I used to chair. It meets in Trinity Church. It has nearly 200 members mostly over 50, often women on their own. (The pages of Newcastle Council’s Response to the LGO are un-numbered. I have discovered that the page with numbers 10.21 to 10.25 was omitted from the documents sent to me, but included in the documents sent to Mr. C. Thorpe. In both cases paragraphs 9.10, 9.11, 9.12, 9.13, 9.15, 10.26.10.27. 10.28 and 10.29 were redacted, apart from “internal correspondence between the Council’s solicitors dealing with the scheme attracts professional legal privilege” that was also omitted.)
- I have specifically drawn attention to the City’s Protocol to provide “an integrated and evidence based means of partners working together to determine priorities in the city.” She ignores the fact that there would not appear to have been any market research among motorists in the city confirming their willingness to use a bicycle instead of a car for all their journeys under five miles.
- I have specifically drawn attention to the City’s commitment to “open government” and in Core Value 4 making “transparent decisions.” She ignores the fact that their “overarching aim” in relation to cycles and motorists was not detailed in the consultation process and she finds no fault in the city’s consultation procedures. I pose this question: Paragraph 10.20 of the Council’s Replies to the LGO states “The changes are essential to ensure that the optimum network benefits are realised from the current programme of works to the Great North Road”. Was the whole consultation process here predetermined?
- I have also specifically drawn attention to Core Value 4’s commitment to “risk management.” She ignores the considerable anxiety being expressed by those who would know best whether the High Street is likely to suffer, namely those actually earning their living there, and accepts without question the assurance from the Council that the High Street will benefit. She ignores the health and safety risk of placing narrow cycle lanes alongside heavy traffic on a main arterial road with cyclists inhaling toxic, carcinogenic diesel fumes from the many buses, lorries and diesel-engine cars proximate to them. She also ignores the health and safety implications of allowing parking on that road in the evenings which the City Council contemplates.
- She ignored the absence of cost/benefit analysis in relation to the road works at the Junction of Salters Road. In the circumstances there were never going to be any.
- She ignored the facts on the ground in relation to the complex reasons for the chronic congestion in Gosforth High Street and she declined to accept that dramatically increasing the number of cyclists to about 3,000 cyclists a day especially in rush hour providing only very narrow cycle lanes for them to ride on would add to the congestion not reduce it by virtue of there being fewer cars; and she declined to accept that this would constitute a health & safety risk for the cyclists.
- One of the most reprehensible aspects of Ms Burns decision, endorsed by all of her colleagues was her total failure to resolve the conflict between the facts on the ground as described by the Newcastle Council and evidence contradicting them, notably the number of cyclists around, the reasons for chronic congestion on the High Street, the way people get to the High Street, the availability of parking spaces in Salters Road car park in the evenings and alternative car parking spaces if the number of spaces in the car park is halved. A visit to Newcastle, not just a paperwork exercise, could have resolved that conflict one way or another. Her failure to do so is reprehensible.
- 9. Bias here is not just an inclination. There is no neutrality here. She has deliberately loaded the scales against the citizen. The wording of her final decision is the same as the draft. She clearly paid no attention to the contents of my response to the draft. This is the fourth time in my life I have had to flag up in the system of government a “lousy, stinking hypocritical charade.” That is what this is.
PS Just spotted LGO’s own procedure:
“The Assistant Ombudsman will seek the prompt input of the Executive Director and/or Ombudsman direct (and not through the Executive Assistants) on all cases: · where there is no established precedent · where the proposed settlement is contentious or involves a particularly high financial component, and · where our case handling has potentially put our reputation at risk.”
Dr. Jane Martin refused to sign off Ms Burns’ Report despite repeated requests by me to do so.
Q 3. Should the Bias argument fail – is Bindmans’ Advice right or wrong?
Extract from Bindmans LLP Advice – with my comment
- Public law recognises three categories of bias: actual, presumed and apparent. An allegation of bias is serious and should only be made on the basis of clear evidence. In short, we see no evidence in the papers beyond assertion and disagreement with the conclusion reached by the LGO that suggests that the LGO was biased (whether actually, presumedly or apparently) in rejecting your complaint against the Council. <Bias is the absence of neutrality. If you read the dossier it is much easier to sense the deliberate withholding of neutrality, and its absence, than its presence, giving the benefit of every single doubt to Newcastle City Council. There is also the adage Suppressio veri, suggestion falsi. Allegations as to detailed breaches of protocol by both Newcastle City Council and the Local Government Ombudsman are totally ignored.>
- The most frequently raised category of bias is apparent bias, the test for which is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased. In our view, that test is not met here. In particular the mere fact that, at various stages throughout your lengthy correspondence with the LGO, staff within the LGO office upheld prior decisions of their colleagues would not, in our opinion, lead a ‘fair-minded and informed’ observer (or, therefore, a Judge) to conclude that there was a real possibility that those individuals were biased. To establish bias some factor outside the decision-making process itself is required to give rise to a real possibility of bias. If this were not the case, then every decision of a decision-making body would demonstrate bias against the person to whom the decision was adverse. <This is a nonsensical argument made on the hoof not on the basis of any legal authority. It should never be argued, just because you don’t like it, that an adverse decision is a biased one. It is the way in which a decision is reached that can evidence that. The authors of the Advice create their own Aunt Sally here. In any event, they totally ignore the coconut. The failure of Newcastle City Council to identify their “overarching aim” in their consultative procedures and the role of Sustrans in relation to it. The malign role of the multimillion £ national cycling charity and cycling lobby, Sustrans, is the “outside factor” if you need one; it provided and sustained the Council’s hidden agenda.> An adverse decision does not automatically create Accordingly, we consider that the bias argument would be bound to fail.
Q 3. Were Bindmans LLP right to say that a case of judicial review of the Local government Ombudsman was “Unarguable” and “Bound to Fail” – justifiable or outrageous?
24 As a non-practising barrister, you will be aware that barristers are prevented by their professional obligations from advancing any contention that they do not consider to be properly arguable.23 <It is not necessary for me to speculate about the motivation but, in the context of the Advice as a whole, this paragraph is intimidation and it perverts the course of justice in that it effectively prevented me pursuing judicial review proceedings against the LGO.> As solicitors, we are similarly prevented by the SRA Code of Conduct 2011 from drafting any documents, relating to any proceedings, containing a contention that we do not consider to be properly arguable.24 We are therefore unable to draft a pre-action protocol on your behalf since, for the reasons given above, we do not consider there to be any properly arguable grounds for judicial review. <In the context of my alleging that you have declined to respond to repeated requests that you answer my criticisms of this Advice, this further evidences your lack of duty of care – your negligence. Your complaints policy that I successfully challenged also points in the same direction.>