Wednesday, 6 January 2016

Eight predictions for 2016: A view into the ombudsman world

For  a variety of reasons, in the UK the ombudsman model of dispute resolution has become an increasingly mainstream provider of civil and administrative justice. The most recent set of pressures in this direction have come from the Government's drive to pursue low-cost and user-focussed solutions to various governance problems. Partial evidence for the added focus on ombudsman schemes can be found in the number of developments taking place in the field. This post takes a look at the important events that we can already be confident of occurring in 2016, and makes a few tentative predictions.

1. The ombudsman landscape will remain dominated by multiple specialist schemes  

This is less of a prediction and more a commentary on the events of 2015. For some time it has been regularly argued that the ombudsman landscape is too complex and from the standpoint of the user unhelpfully confusing. The solution posited has often been harmonisation of smaller specialist ombudsman schemes into fewer generalist schemes, as for instance with the public services ombudsman schemes in Scotland and Wales.

There is a debate to be had as to the respective merits of generalist ombudsman schemes versus specialist schemes but, in England at least, this debate has been won. The Cabinet Office's proposals for a new public service ombudsman scheme may merge three schemes into one, but this is more of a belated recognition that the schemes being merged no longer have a coherent reason to operate separately, than a vote in favour of harmonisation. Instead, the Cabinet Office's proposals confirm that it has no appetite for a radical bringing together of multiple ombudsman schemes into one office. Its initial proposal had involved integrating the Housing Ombudsman into the project, but this plan has been dropped once confronted by resistance from the housing lobby.

Simultaneously, in the private sector the Department for Business, Innovation and Skills is not interested in establishing a generalist consumer ombudsman and has championed competition in ADR.

2. The network of ombudsman schemes will continue to grow

The  Armed Forces (Service Complaints and Financial Assistance) Act 2015 means that early in 2016, there will be a new ombudsman scheme in the public sector with, albeit one that upgrades a former complaints process. In the private sector, Ombudsman Services now offers a series of individual services under one umbrella eg Communications, Energy, Property, Aviation, Consumer. Over the last year the Retail Ombudsman has been established and whose to say others might not enter into the new market in ADR created by the EU ADR Directive. Alternatively, other ADR schemes performing ombudsman-like complaint services, but currently operating within structures closely tied to trade associations, might move towards greater independence, a route the Furniture Ombudsman has recently followed.

3. The battle for enhanced awareness will be through social media and the internet

If the ombudsman landscape is to be packed full of diversity, then the ombudsman community will have no choice but to go on an information and explanation offensive. Fortunately, the tools to undertake this task are getting stronger all the time. The Government has committed to making it a statutory duty for all public service providers to signpost complainants towards the new public service ombudsman, and the ADR Directive includes a similar requirement for all traders (though note that traders are not obliged to use ADR and the ADR scheme referred to does not have to be an ombudsman scheme). A brilliant website, Resolver, now provides the one-stop information service that governments have some years dithered over developing and Citizens Advice has been funded to provide an information helpline. Meanwhile, the Financial Ombudsman Service has launched into YouTube with its 100k plus hit What did the Vikings ever do for us? and follow-ups. Expect more media-friendly innovations in 2016.

4. Ombudsman schemes will obtain more powers

Other countries have been more imaginative than the UK in adapting the basic ombudsman model to provide a series of different types of service but things are changing. Scotland is already a pioneering scheme, but in April 2016 will start a new role in reviewing welfare fund decisions under The Welfare Funds (Scotland) Act 2015. This is a novel role for a ombudsman scheme, and noticeably includes a bespoke power to change decisions. In Northern Ireland, the Ombudsman Act when finally passed will give the reformed ombudsman powers to act as a standards authority and to launch own-initiative investigations. The Finance Committee in the Welsh Assembly is actively promoting a similar upgrade for the Public Services Ombudsman for Wales. Even England is getting in on the act, with the proposed merged ombudsman also to get a standards remit, but noticeably not a power of own-initiative inquiry. Whether this latter omission is through a concern of over regulation or a reluctance to be exposed to too greater scrutiny is a debate that hopefully will be heard in Parliament.

5. Complainants will keep on complaining

2016 could be the year when we get a more accurate and consistent picture of the ADR sector. Competent authorities have been appointed under the EU ADR Directive to oversee the sector, a role which includes receiving performance reports from all ADR schemes. Whether this responsibility leads to consistency in reporting methods is doubtful given its distribution around multiple separate competent authorities. Further, most public service ombudsman schemes are unaffected by the Directive and will no doubt carry on reporting in their very different ways. Nevertheless, as an ombudsman route to redress becomes increasingly the most viable method, and as austerity politics continues to bite in the public sector, then we can be confident that complaint levels will continue to rise.

High levels of complaints will further increase the pressure on ombudsman schemes to deliver, and in the public sector this will probably be in the face of further budget cuts. Already ombudsman schemes struggle to keep all complainants happy and attract considerable organised and sophisticated campaigning against them. The first showcase event of the year will be the Parliamentary and Health Service Ombudsman's appearance before the Public Administration and Constitutional Affairs Select Committee on January 12th.

6. Corporate Governance will become a debating point

Ombudsman schemes are formally accountable by a number of different routes but as the ombudsman route to justice becomes more important, ever more people will want to know how we can be confident that the sector is performing a good job. The consultation processes into the introduction of a public services ombudsman and the reform of the Independent Police Complaints Commission both signal the UK Government's intention to strengthen their respective corporate governance arrangements through the introduction of a board to oversee the organisation. The implementation of these proposals may challenge traditional conceptions of the independence of the ombudsman and highlight the need for ombudsman schemes to find new ways to evidence their performance.

7. Regulation of the sector will increase

Alongside the new role of competent authorities under the ADR Directive, the Ombudsman Association will be challenged to upgrade its role, now that it is de facto the protector of the title 'ombudsman'. This situation has come about as a result of as the combined impact of the Companies Act 2006, section 56, the Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2014 (Schedule 1, Part 1) and Companies House guidance.  Given the commercial advantage in being branded an ombudsman, the Ombudsman Association will need to consider carefully its current admissions criteria to ensure that adequate standards are maintained in the sector. Likewise, as more emphasis is place on the work of the ombudsman across a number of sectors, the competent authorities will hopefully be placed under some pressure to explain how they are performing their new role.

8. The Judiciary will continue to support the ombudsman model

Case law is generally very supportive of the discretion exercised by ombudsman schemes. One case, JR55, is set to be heard by the Supreme Court in the Spring of 2016. This will be the first time a matter of ombudsman law has been considered by the country's highest court. If the Court is to consistently apply existing case law it will find in favour of the appellant in that case, the Northern Ireland Ombudsman.

Conclusion

I look forward to reconsidering these predictions this time next year and musing upon the many things that I will have missed or not anticipated.

 

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