TECHNIQUE OF MALADMINISTRATION

G E O F F R E Y MARSHALL

MALADMINISTRATION is partly an acquired technique and partly a matter of instinct. Despite eight years of painstaking investigation by the Parliamentary Commissioner, no Government Department has yet been found capable of maladministration in its purest form. Some have achieved ‘elements’ of mal- administration. Others have produced examples of ‘inefficiency’. The Inland Revenue has been fairly successful in creating cases of ‘hardship’ ; whilst the Ministry of the Environment, though managing the odd ‘irrational’ decision tends to specialise in ‘inconsistency’.

This is not altogether surprising, given the inherent difficulty of the techniques involved. Nevertheless the annual and now quarterly reports of the Parliamentary Commissioner should, if all goes well, bring about a significant long-term im- provement. They constitute an invaluable body of case studies for the young pub- lic servant who is keen to acquire a grasp of the finer points. The field is one in which an ounce of malpractice is worth a pound of abstract organization theory. Perhaps wisely, little attempt has been made to formalize the rules of an activity which is defined neither in the Act of 1967 nor anywhere else. However it seems possible to suggest some general rules and guidelines. Obviously they cannot be applied in a mechanical way but must be modified and adapted as circumstances require.

Here then are a few suggested maxims for the would-be maladministrator. Intelligently used they can be relied upon to complicate the simplest decisions, to bring chaos out of order and to replace expedition with deliberation.

Rule One. Do not volunteer explanations of the Department’s decisions in correspondence.

Rule Two. Do not carelessly allow complainants access to the technical, legal or other advice that you may have received.

Rule Three. Make sure that policy changes occur from time to time, but be careful not to introduce them at any particular or identifiable date to which reference may later be made.

Rule Four. Arrange for appropriate staff transfers so that the officers dealing with particular cases change as frequently as possible and are different at the

Rule Five. Take advantage of any jurisdictional points that may arise in the Department’s favour. But do not take them immediately. If possible wait until after the expiry of any statutory limitation periods that would enable com- plainants to seek alternative remedies in the courts.

Rule Six. Ensure that the responsibilities of the various branches within the Department overlap and that no unnecessary or time-wasting steps are taken to co-ordinate them.

Rule Seven. If time is to be wasted, it can be done more economically by not recording or misfiling correspondence.

. beginning, middle and end.

PoIiticaI Studies, VoI. Xxm. Nos. 2 and 3 (305-310)

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Rule Eight. Do not officiously volunteer the Department’s assistance or suggest alternative courses of action. Do not give legal advice unless it is clearly against the complainant’s interest.

Rule Nine. Make sure that at the termination of meetings or interviews there is some element of uncertainty about the conclusions reached and as to who is responsible for taking action on them.

Rule Ten. Consult at such length as may be necessary all conceivably interested parties before acting on a request or giving a definite answer to any question asked in correspondence. Consultation must clearly be seen to be done without being clearly seen to be overdone.

Rule Elwen. The volume of business requiring the Department’s attention should be remarked upon whenever possible. Periods when business is less pressing than usual provide suitable occasions.

Rule Twehe. The passing of communications and particularly telephone mes- sages between a number of persons can be relied upon to produce significant differences between the information received and that which it was intended to convey.

Rule Thirteen. Keep files on the move, especially on Friday afternoons. Rule Fourteen. If possible, open more than one file for each case, so that corre-

spondence can sometimes be registered to one file and sometimes to another. Do not carry cross-referencing between files and subfiles dealing with the same subject matter to inconvenient lengths.

Rule Ffteen. Arrange for the occasional erroneous release of libellous internal memoranda. You can rely on qualified privilege and sincere apologies for the distress and damage inadvertently caused to complainants’ interests.

Turning now from the analytic to the empirical mode, let us see how these maxims may be applied in everyday practice. We can do no better than examine a few selected case studies’ of Departmental action in the face of persistent and often resourceful complainants.

The War SeriYce Death Case (How to Explain Carefirlly) A retired army officer died in 1967, possibly from the effects of a shell splinter

wound received in 1944, possibly from other causes. The Ministry of Defence, after considering medical evidence, declined to certify for Estate Duty purposes that he had died as the result of a wound received on active service. The deceased‘s executors wished to know how the Ministry had reached this decision. Accord- ingly the Army Board informed them that they had reached it ‘after having care- fully considered the circumstances’. They suggested that it was ‘not reasonable to expect the views of the Department’s medical advisers to be displayed without reason’. In awarding certificates they had evolved over time a gradually more restrictive policy. They later explained that this policy had been affected by the passage of time, by staff changes and by the fact that the Inland Revenue had expressed some uneasiness about the Department’s decisions.

After being pressed further, the Permanent Under Secretary wrote that the Board ‘having given due weight to all the relevant material . . . did not feel able to make the positive certification’. He added ‘I do not believe it is feasible to describe

’ Abstracted from the recent case reports of the Parliamentary Commissioner for Administra- tion, principally from H.C. 116 (1972) and H.C. 178 (1973).

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the decision of the Army Board other than in those terms’. It was, as the Parlia- mentary Commissioner noted, a material consideration from the Department’s point of view ‘to avoid presenting the applicants with material with which they might be able to test the dicision in the courts’.

(This case displays a particularly effective combination of Rule One with Rules Two and Three above.)

The Educational Arbitration Case (How to Act with All Deliberate Speed) In this case a dispute arose between a local Education authority and the man-

agers of two independent schools as to their respective financial liabilities follow- ing a change in the status of the schools. Under the 1944 Education Act such a dispute may be referred for a determination by the Minister of Education. The dispute in this case first arose in 1961 and was referred to the Department of Educa- tion and Science in April 1964. The letter asking for the Minister’s intervention was received by the Department but no action was taken on it and no trace of it could afterwards be found (probably due to the timely application of Rule Seven).

Seven months later the solicitor acting for the schools telephoned to enquire about progress. A further copy of the original letter was obtained and some fur- ther correspondence took place. The Department at this point consulted its legal adviser who suggested that since one of the schools had been discontinued, its governors who purported to be in dispute with the local authority did not exist and that there could be no dispute for the minister to resolve. Accordingly the Department wrote to the complainants explaining that the Minister had no jurisdiction (Rule Five). The non-existent governors did not accept this argument but prolonged matters by asking for a meeting. The Department may perhaps be open to criticism here for not pointing out the ontological impossibility of such a meeting but in fact they agreed to its taking place. The date was now November 1967.

The meeting, in the event, was largely abortive since the official who repre- sented the Department was not briefed to discuss all the items in dispute, and the Department took no steps to arrange another meeting. In the following year the complainants wrote once more to request further action and a second meeting was held in the Department in April 1968. The Department’s legal adviser took the chair at this meeting. He ‘chose his words very carefully’. His object was to make it clear that in relation to some of the matters in dispute the Department were in principle capable of making a determination. Secondly, the Department would consider the questions in issue if they were asked to do so. Thirdly they were ‘not encouraging the complainant to ask them’. When questions were later raised about the result of this meeting and whether the Departmental reluctance had been made explicit to the complainants the chairman’s recollection was that ‘he had succeeded in conveying this impression’. The Department’s record of the meeting was, however, left unclear on this point (Rule Nine) and whilst the Ministry representatives thought that they had disposed of the matter and that no responsibility lay on them to make the next move, the complainants had a different impression that the Department would in fact take action to resolve the matters in dispute. Thus after ten years no result had been reached. Some time later a query was raised about another disputed item relating to the second of the two schools and it was possible to explain that no action had been taken within the Department ‘because the officers of the two branches concerned. . . each assumed

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that the other was dealing with it’ (Rule Six). (A classic case with which all serious students should be familiar.)

The School Fees Case (How to Suggest a Helpful Alternative) A complainant appealed to the Department of Education and Science against

the refusal of a Local Authority to pay his daughter’s school fees at a Convent school. His letter written on 27 May was answered in August by the Department with a suggestion that his daughter might attend another college in the neighbour- hood which was in fact a boys’ school. The Department pointed out that they were ‘under very heavy pressure at the time’ (Rule Eleven).

The Case of the AggrievedPoet (How to Accept Information at its Face Value) A poet complained that inaccurate and damaging statements had been made to

Members of Parliament about the publication of a book of his poems subsidized by the Arts Council. The admitted inaccuracy arose from an unclear paraphrase made by the Department and included in its letters, of information that it had obtained from the Arts Council. The Department stated that they ‘did not feel that it was their responsibility to verify the accuracy of the information given them by the Arts Council which they passed on good faith to the Members of Parliament’ (Rule Twelve was obviously borne in mind here).

The Case of the Missing Registrar (How to leave Nothing to Chance) Official A telephoned Official B (a Registrar of Marriages) with the urgent

information that he was required to officiate at a wedding. B could not immedi- ately be contacted since he was playing golf. A therefore asked C to pass on the message to B and to ring back if he could not act as required (a useful variation on Rule Twelve, usually productive of satisfactory results). Because of a sudden rainstorm from which B took cover C was not able to find B or to deliver A’s message. A, however, was thus able to act on the assumption that since B did not ring back he (B) would take the necessary action and that no further steps were called for by him (A). As a result nobody turned up to perform the wedding ceremony.

The Suppressed Objectors Case (How to Communicate Against Impossible Odds) A complainant who wished to present objections at a forthcoming public in-

quiry alleged that when he wrote to the Ministry of the Environment, action was not taken on his letter in time for him to participate fully in the inquiry since the Inspector had not been made aware of his desire to do so. The Department re- ceived the complainant’s original letter on a Thursday before the inquiry was due to take place on the following Tuesday. There was thus only one working day left in the week. They were unable to consult the files since they were already in the hands of the Inspector in preparation for the inquiry and he, as it happened, was located in a different building from the administrative branch. (Intelligent advant- age taken here of temporal and spatial difficulties. A well-intentioned but perhaps not entirely convincing application of Rules Six and Thirteen.)

The Supplementary Benefits Case (How to Co-ordinate Action) A disabled smallholder complained of a nine-month delay in dealing with his

claim for supplementary benefit and sickness benefit. Before 1968 sickness and

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supplementary benefit claims for the claimant’s area were dealt with by separate local offices of the Department of Health and Social Security. From the end of 1968 both categories of claim were dealt with by the same local office. The local office had not previously dealt with a claim for supplementary benefit from a small- holder with fluctuating income. In order to clarify what was a complex matter for them (though a simple one for the claimant) a series of visits by different officials from the two branches of the office was made to the claimant’s house. Since the two sides had not pooled their information the officials were ignorant of each other’s visits. This made the case significantly more complex. The Department of Health and Social Security had not issued instructions to local offices, when they were integrated, about liaison between the two sides (relying, correctly as it turned out, on their putting Rule Six into operation without further reminder).

The Case of the Immigrant’s File (How to Treat Like Cases Alike) A Pakistani woman and her two children applied for entry to the United King-

dom as the dependents of a United Kingdom resident. The British High Commis- sioner in Pakistan refused an entry certificate, but after solicitors for the applicant had taken up the case the High Commissioner asked the Home Office to make further inquiries before reaching a final decision. The applicant’s solicitors com- plained of delay and were told that the High Commissioner was awaiting the re- sults of the Home Office inquiries. The solicitors wrote directly to the Home Office in January 1969 and on subsequent occasions and got no specific written replies except for acknowledgement of the correspondence. They therefore attempted to speak to the Home Office by telephone. At this stage they were told (in accord- ance with Rule Seven) that the Department ‘could not trace the matter’. In June 1970 the solicitors sent to the Home Office copies of the certificates that they had originally sent to the High Commissioner, but the Department was later unable to trace receipt of the certificates either. Analysis of the delay reveals that it was made possible by the loss of one file and the opening of two more, one of them being in the applicant’s single name and another (not cross-referenced) in her married name. Thus after the initial delay, imposed by the mislaying of corre- spondence, the officials dealing with the ‘married name’ file were able to act inde- pendently of those dealing with the ‘single name’ file, and inter alia to make dupli- cate requests for local police to carry out repeated interviews.l (This case could hardly be bettered as an example of the effective use that can be made of Rules Seven and Fourteen applied in combination.)

The Case of the Transposed Birth CertGcate (How, When Need Be, to Have an Error to Apologize For)

A complainant with five children claimed National Insurance sickness benefit with increases for his wife and children from a local office of the Department of Health and Social Security. The office sent him a claim form and enclosed a birth certificate in respect of a child recently born which was neither his wife’s nor his. The wife, on seeing the birth certificate, collapsed in hysterics, believing that the husband was claiming for a child of his of which she had no knowledge. The enclo- sure of the birth certificate was, as the Department later noted, a regrettable error

1 It is perhaps fair to point out that the Department’s performance in this case was assisted by the fortunate accident of there being 600 persons on the Departmental records bearing the husband‘s name and about 1,OOO bearing the wife’s name.

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for which they offered apologies (Rule Fifteen).' In this case the husband asked the Department to explain the error to his wife. The Department attempted to do this, but the wife was not convinced. Eventually she called the police and had the hus- band removed from the house.

Plainly a comprehensive manual of constructive error remains to be written. But these few examples, from the large amount of material now available, show that a greater degree of precision is not entirely beyond our grasp. We know enough to begin. But maladministration is not easy. You have to work at it.

Cf. HC.178 (1973), p. 91, for a similar regrettable instance in which papers inadvertently forwarded to a claimant inside a supplementary benefit order book stated that she seemed to be of unsound mind.