Another False Dawn or the Moment ADR Becomes Mainstream

This blog was originally posted on the website of the UK Constitutional Law Association on 7 May 2014

The ombudsman enterprise in the UK is in a state of flux. The last two years have witnessed a series of events that could revolutionise the architecture and impact of the sector. Alternatively, in a year or so time we could be talking about another missed opportunity in ombudsman reform.

 

The big events that have briefly brought complaints systems to the fore of public policy include the widely reported outrage at the Mid-Staffordshire NHS Foundation Trust, which the 2013 Francis report found occurred in part because of a culture in the NHS of failing to take complaints seriously. Picking up on this theme, the Clwyd/Hart Report into NHS complaint-handling followed by the Public Administration Select Committee’s (PASC) twin inquiries into complaints and Parliament’s Ombudsman Service, critiqued the complaints branch of the administrative justice system, highlighting concerns about the poor service received by the user and insufficient learning from complaints. Meanwhile, the EU Directive on Alternative Dispute Resolution was passed in 2013 and is currently being consulted on by the Department of Business, Innovation and Skills. This Directive looks set to overhaul complaint-handling in the private sector by requiring the Government to ensure that an ADR scheme is available in all contractual disputes between a consumer and a business (although neither consumer nor business will be obliged to use the service).

This blog will not explore in detail any of these developments, but will highlight the current potential for the ombudsman/ADR sector to be redesigned to enhance its impact in the justice system and the constitution.

Competing visions of the ombudsman enterprise
The connections between the ADR Directive and PASC’s work on complaint-handling are several. The most obvious similarity, however, is that both initiatives could be the catalyst for the organisation of the ombudsman/ADR sector to be streamlined.

For the UK, the ADR Directive builds on a long standing momentum towards ADR in the private sector. With the right to consumer access to ADR to be broadened under the Directive, it could result in either existing ADR providers expanding their remit to meet new demands for complaint services or new schemes being introduced to fill the void. In response, to prevent an already dense network of ADR providers becoming even more complex, it has been openly mooted that the transposition of the directive might represent a good moment to move towards a simplified model of ombudsmanry in the sector. In the future, total unification of schemes might be too big an ask for the sector, but the implementation of the Directive could be built around a few core schemes, such a Financial Ombudsman, a Services Ombudsman and a Consumer Ombudsman (see for instance Sampson).
The work of the ombudsmen in the public sector is only partially affected by the ADR Directive, but here too the arguments for simplification are being played out. Seasoned observers of the ombudsman enterprise in England will recognise very well the familiar recommendations brought together in one clear package by PASC at the end of April (for a summary of the main issues raised, see Elliott). In particular, PASC recommends that there should be a unified public services ombudsman for England to which complainants should have direct access, a model described by the title of the report as ‘The People’s Ombudsman’.

In an early response to the PASC inquiry the Cabinet Office have asked Robert Gordon, a former civil servant, to report on options for reform of public sector ombudsman schemes in England. Robert Gordon is an interesting choice as in a review of the LGO for the Department of Communities and Local Government, published in November 2013, he has already recommended that consideration is given to merging ombudsman schemes in England.

Both the Directive on ADR and the PASC inquiry have fostered an environment within which the diverse landscape of ADR and ombudsmanry in England, long criticised for being unnecessarily difficult to understand from the perspective of the consumer, could be reduced to just a few flagship ombudsman schemes. Such a solution would require legislation, time for which in the past has not been found due to the sector being usually viewed as the bridesmaid of the justice system. But the requirement to transpose the ADR Directive and the likelihood that the Coalition Government might struggle to agree a legislative agenda for its last year of office, might present a brief window of opportunity to convert a modern vision of ombudsmanry into reality.

The goal of a harmonised ombudsman sector in both the public and private sector (and across sectors) is a worthy one supported by an underlying logic that such a vision could provide heightened visibility and simpler access points to the complainant, as well as reduce the overheads of the sector (see Tinkler). However, the legislative outcome of current policy debates on the matter is far from certain. In designing a harmonised public sector ombudsman scheme for England there are a myriad of technical difficulties that would need to be resolved and clarified, not least the need to find a way to retain a strong connection between Parliament and the ombudsman and satisfactorily to take into account the consequences of devolution. Moreover, the aspiration for simplicity is not shared by all. In the public sector, the bespoke specialised model of ombudsmanry has a strong hold, while BiS’s consultation paper on the ADR Directive offers an alternative vision of ombudsmanry again. In BiS’s consultation paper a competition in provision of ADR is openly being considered, and is allowed for by the Directive. Further, concurrent with the requirement to provide for greater access to ADR, the Directive establishes certain procedural standards for ADR schemes, including independence, and requires regulation of the sector through the formation of a ‘Competent Authority’ to validate those standards. Here too, the Directive and the consultation paper, do not prescribe simplicity as the best model for the sector, but instead allows for a choice of either a single or multiple competent authority(ies).

The bigger opportunity
The merits of single or multiple ombudsman/ADR schemes will no doubt dominate the Government’s responses to the ADR Directive and the PASC report, but the remainder of this blog is focussed on the wider opportunities that this moment in ombudsman history has created.

There are pragmatic drivers towards harmonisation that are strong, but this is also a moment to modernise the ombudsman office in a whole series of other ways. Ideally, the goal should be to align the old 20^th century model of the office with the manner in which public services are today delivered, and to improve the integration of the work of the ombudsman with the regulatory sector. Some of this modernisation agenda would appear to have been anticipated by the Government with the statement of Oliver Letwin, the Minister for Government Policy, that he will take responsibility for improving the culture within central government so that complaints are taken more seriously as a source of information.

I want to create a culture within which, through services, and ideally right at the ground level, complaints are welcomed and used so that they do not have to be run from somewhere on top. However, whatever system, or systems, we set up for doing that then has to be invigilated and monitored to see whether it is working, where it is and is not working, and that is the role I envisage for me and the Cabinet Office.

But any reform in the public ombudsman sector must also address the sea change in public service provision currently occurring which has increased both the deployment of, and diversity in, private sector providers. This has created an environment of consumer driven democracy in which powerful complaint-handling is needed more than ever as a primary instrument of accountability. Such a shift may even imply that a new public service ombudsman should have powers of enforcement against private sector providers.

To embolden the ombudsman model, PASC supports long-standing recommendations for ombudsman schemes to have a power of own-initiative inquiry, but other possibilities for innovation also exist. Should an English public sector ombudsman have a responsibility for establishing complaint handling standards across the sector, as in Scotland Public Services Reform (Scotland) Act 2010? Or might it be given a reporting duty on the health of administrative justice system as a whole, at least in terms of monitoring the numbers of complaints across the whole sector and the degree of implementation of recommendations? A duty could also be placed upon the ombudsman to report its findings and concerns to relevant regulators? More radically still could ombudsman schemes be given a power to refer to the courts significant and contentious legal questions that arise in the course of an investigation?

Finally, the opportunity of setting up a new ombudsman scheme might be taken to update the provisions, in some cases archaic, surrounding the independence and corporate governance arrangements within which ombudsman schemes are set. A 2013 report found the Local Government Ombudsman’s governance arrangements under statute deeply flawed, while the statutory arrangements surrounding the appointment ombudsman schemes overseen by statutory boards (eg see the Legal Services Ombudsman) might provide a stronger model for guaranteeing the independence of the appointment to Chief Ombudsman.

Conclusion
The structure of the ombudsman and ADR community is a constitutional issue because, as was mischievously suggested at a recent conference on the field, it is time to stop talking about ‘alternative dispute resolution’ and consider the field as ‘mainstream dispute resolution’. The ADR Directive is on one level a response to a growing demand of consumers to have better access to justice, while the Government’s policy on reform of judicial review is indicative of the continued trend against easy access to the courts. In this context, the role of the complaints sector can only get ever more important. In order to equip the sector with the tools to provide strong justice, it needs to be supported modern legislation which goes further than simply resolving old problems. The alternative is the likelihood of ever more vocal consumer dissatisfaction and an increase in events such as the Mid-Staffordshire outrage.

 Dr Richard Kirkham is a Senior Lecturer at the University of Sheffield, School of Law.

(Suggested citation: R.Kirkham, ‘Another false dawn, or the moment ADR becomes mainstream?’ U.K. Const. L. Blog (7th May 2014) (available at: http://ukconstitutionallaw.org/).