Q: My client has complained to her local council about the way it provides her with community care services but her concerns have not been addressed through the council's procedure.

Should she be considering a claim for judicial review or complaining to the local government ombudsman? A: Both remedies should be considered and the client should be fully advised of the respective advantages and disadvantages, keeping in mind the time limit for issuing a judicial review claim (Civil Procedure Rules, rule 54.5).

Unlike the Administrative Court, the local government ombudsman's main function is not to decide whether the council has acted lawfully, but rather to investigate maladministration, such as bias, neglect, inattention, delay, incompetence, ineptitude, perversity and arbitrariness.

There is no right to an investigation, though, arguably, once an investigation has commenced, it must be pursued to a conclusion which is formally reported.

If maladministration causing injustice is identified, recommendations for remedial action by the council are likely to be made.

These are usually followed, but not binding.

There is no provision for interim relief.

Investigations often take longer than judicial review proceedings, and the ombudsman normally expects the complainant to complain directly to the council first.

The time limit for receipt of complaints is one year, although the ombudsman has a discretion to extend this.

The appropriateness of complaining to the ombudsman rather than pursuing judicial review will depend on the nature of the dispute.

If the facts are unclear -- or are likely to be substantially disputed -- the ombudsman may well represent a better remedy since he can interview witnesses, call for documents and take a view on the m erits.

On the other hand, judicial review will be more appropriate when swift action is necessary, particularly in cases requiring interim relief.

Similarly, if the case involves a question of statutory interpretation, or raises complex legal questions, it will almost certainly be more apt for resolution by the courts.

These issues were helpfully reviewed by the Court of Appeal in R v Commissioner for Local Administration, ex parte Liverpool County Council [2001] 1 All ER 462.

Q: I have read a number of articles about raising human rights convention arguments in proceedings before Social Security Tribunals and commissioners.

Is there anything that I ought to know about before I attempt to do this? A: In joined cases CIS/1077/1999 & CIS/6608/1999, Commissioner Williams gave the following analysis: Such proceedings fall within section 7(1)(a) of the Human Rights Act 1998.

Section 22(4) of the Act contains important provisions as to the date section 7 comes into effect, which in turn depends upon the identity of the body or person bringing the proceedings.

If the proceedings are initiated by the secretary of state, (for example, by appealing a tribunal decision), the claimant can raise convention arguments whenever the alleged breach of his convention rights took place.

If the proceedings are initiated by the claimant, he cannot rely on any alleged breach which took place before the 2 October 2000, and although section 6 of the Act obliges the tribunal or commissioner to act compatibly with convention rights, this obligation extends only to matters of procedure within their own tribunal.

Following the introduction of the Social Security Act 1998, tribunals and commissioners are unable to take into account any circumstances not obtained at the date of the decision under appeal.

Thus in cases where decisions are made prior to October 2000, the claimant's convention rights with respect to those decisions can only be considered if they make a fresh claim, or seek a revision or supersession.

Also note that both the president of the tribunal and the chief commissioner have issued practice directions regarding convention arguments.

In brief, such arguments should be raised at the earliest opportunity specifying the articles alleged to have been broken and citing appropriate case law in support.

The full text is available from the appeals service and commissioner's office.

Q: Where a prisoner is being disciplined, do those proceedings involve a determination of a criminal charge and attract article 6 guarantees? A: Article 6 rights only apply in the determination of a person's civil rights and obligations or of any criminal charge against him.

The question of a criminal charge has an independent autonomous meaning under the convention.

In the case of Engel v Netherlands (1975) 1 EHRR 706 the question of whether the proceedings involved a determination of a criminal charge was examined by reference to three criteria: -- The classification of the proceedings in domestic law;-- The nature of the offence or conduct in question;-- The severity of any possible penalty (see also the case of Benham v UK (1995) 22 EHRR 293).

As far as prison discipline disciplinary hearings are concerned in domestic law, the courts have tended to the view that such adjudications are administrative tribunals.

Under the Prison Act 1952 section 47(1), the secretary of state has responsibility for the making of rules for discipline and control of prisons and these rules must ensure that a person charged has the opportunity of hearing the allegations and presenting his defence.

However, all convention decisions pre-date the introduction of the Criminal Justice Act 1991, which among other things abolished the role of the board of visitors in the disciplinary process.

In the case of Campbell & Fell v UK (1984) 7 EHRR 155 where a prisoner lost 18 months' remission, the court took a purposive approach to the construction of article 6.

It concluded in that case that the proceedings did in fact involve the determination of a criminal charge, the court took account of the 'especially grave' character of the offences which he was charged with.

Compare this case to the decision of Kiss v UK (1976) 7 D & R 55 where the penalty imposed was 80 days lost remission and article 6 was not engaged.

Furthermore, in the case of Pelle v France APPL 11691/85 50 DR 263 where a disciplinary offence could have been charged as a criminal offence, the actual penalty imposed was found to be insufficient to bring it within the criminal sphere.

In Some cases the lack of legal representation and the impartiality of hearings may in fact give rise to a violation of article 6.

In the recent High Court decision of F v Carroll and Al-Hasan (16 February 2001), the court considered these issues and considered the proceedings to be disciplinary rather than criminal.