There have been many attempts to 'define' maladministration, perhaps the most famous two being, first, what is known as the 'Crossman catalogue' - so named because it was the list of traits that maladministration might have, that was given by the then Minister responsible for piloting the Bill to establish the Parliamentary Ombudsman through the Commons in 1966.

In the second reading debate on the Parliamentary Commissioner Bill, on 18 October 1966, when asked to define maladministration Richard Crossman said 'we might have made an attempt... to define, by catalogue, all of the qualities which make up maladministration... It would be a wonderful exercise - bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.' He also said that maladministration 'does not extend to policy, which remains a matter for Parliament. Nor do we include under maladministration... discretionary decisions, [which if] properly exercised... [are] excluded'.

Secondly, Sir William Reid, a former Parliamentary Ombudsman, in his 1993 Annual Report to Parliament, under the heading 'What is maladministration?', wrote 'To define maladministration is to limit it. Such a limitation could work to the disadvantage of individual complainants with justified grievances which did not fit within a given definition. However I suggest an expanded list of examples going beyond those recounted in what has become known as the Crossman catalogue... In the language of the 1990s I would add rudeness (though that is a matter of degree); unwillingness to treat the complainant as a person with rights; refusal to answer reasonable questions; neglecting to inform a complainant on request of his or her rights or entitlement; knowingly giving advice which is misleading or inadequate; ignoring valid advice or overruling considerations which would produce an uncomfortable result for the overruler; offering no redress or manifestly disproportionate redress; showing bias whether because of colour, sex , or any other grounds; omission to notify those who thereby lose a right of appeal; refusal to inform adequately of the right of appeal; faulty procedures; failure by management to monitor compliance with adequate procedures; cavalier disregard of guidance which is intended to be followed in the interest of equitable treatment of those who use a service; partiality; and failure to mitigate the effects of rigid adherence to the letter of the law where that produces manifestly inequitable treatment.'

Readers of this very long post (for which apologies) should note that both attempts to 'define' maladministration effectively said that 'this is what an attempt to define maladministration might look like, but to define it rigidly would be inappropriate, which is why we haven't done so'.

With that health warning in mind, I think in terms of this investigation, we might say that the regulators would have been maladministrative:

1. had they failed to do something that they were required to do or had they done something that they should not have done; and/or

2. where discretion was given to them, had they acted unreasonably given the information available to them at the time.

The first is an absolute test - did the regulators break the regulatory rules contained in statute law, secondary legislation, professional guidance and any other sources of the regulatory regime?

The second is effectively a reasonableness test, which will require the Ombudsman to look at each discretionary decision or action on its own merits and to assess it against what, in her view, is reasonable. It is here that the issue of hindsight is most relevant.

The part of the investigation in which we are working to set out the powers, duties and responsibilities of the regulators over the whole period is thus a critical process in determining whether maladministration occurred.

I hope this is helpful...

... seasons greetings to all!

Iain