Wednesday, 24 February 2016

The Forthcoming Bill on a new Public Sector Ombudsman

Presentation to MPs at a meeting organised by PHSO Pressure Group and the Patients Association, 23 February, 2016

I was recently invited to talk at an event aimed at making MPs aware that the Cabinet Office is planning to submit legislation to reform the ombudsman sector. This is the edited version of my talk: see also my earlier blog on the topic.  

If I may start with a brief summary of my approach to this topic. I have never been a user of ombudsman services, and am much more knowledgeable of the dynamics of the sector from the perspective of the ombudsman schemes themselves than I am from the complainant. I should also declare several interests, including that I have on a couple of occasions worked with two out of the three ombudsman offices that the Government is currently proposing to merge. Most recently in a three man team that reviewed the Local Government Ombudsman scheme in 2013. Amongst other things – that report recommended an overhaul of the corporate governance arrangements for the LGO and tentatively alluded to the idea that a restructuring of the ombudsman sector was necessary.

My general standpoint is that they are potentially a strong part of the solution to administrative justice. In amongst my previous work I have regularly argued that the ombudsman sector needs to be upgraded. The current proposed legislation for a Public Sector Ombudsman scheme purports to do that.

I think that this proposed legislation is definitely a step in the right direction. And I know a lot of people have put a lot of effort into getting it this near to realisation. Potentially it may lay the foundations for an ombudsman scheme that can be built up in the future – but as the proposal currently stands I suspect that, unless Parliament intervenes, in 10 years time I will be writing exactly the same things about the need for upgrading in the ombudsman sector as I have already written.

I would like to focus on three themes.  These are first, that if there have been failings in the administrative justice system in recent years, frankly Whitehall and Parliament need to take their fair share of responsibility. Second, I would like to highlight two areas where genuinely reforming legislation could make a real difference in terms of creating an ombudsman scheme for the future that might give it more bite. Third, I would like to commend the Government for including – or at least it looks like it will include – provisions relating to the ongoing scrutiny of the new Public Service Ombudsman. But, simultaneously I am hoping that when MPs scrutinise the legislation it will pay careful attention to a series of crucial design features of the new arrangements. 


The long history of minimalist reform

Administrative justice is such an important matter. I know this does not need to be said in this room. After all through their work with constituents MPs probably do as much as anyone to resolve administrative justice complaints. But although I do not agree with all of the arguments and proposals that the Patients Association and PHSO pressure group have come up with regard to ombudsman reform, they are a permanent reminder to all of us – by which I mean the law-makers, the public service providers, the government, the justice sector, including the ombudsman, and those of us with a role in scrutinising – that if you put in place incomplete solutions to major problems you get incomplete outcomes.

When it comes to designing the complaints branch of administrative justice, an incomplete solution is what we have now and will continue to have if the current set of Government proposals are introduced.  And the frustration is that this is what we in the UK too often do when it comes to administrative justice. I concede that we have been quite creative in our solutions sometimes and an awful lot of people put in a tremendous effort to make those solutions work. But there is a sense of déjà vu around developments in the sector.

A big part of the frustration is that Whitehall and Westminster know the problems – and have identified them quite well on a regular basis. See for instance the work of both the Public Administration Select Committee and the Health Committee in the last Parliament. But for good and bad reasons the idea of securing administrative justice for all is rarely something that gets to the top of the ‘to do’ list for governments. And that is a non-party political point by the way. The Liberal Democrats agreed to abolish the Administrative Justice and Tribunal Council in the last Parliament, a body that might have provided leadership and independent advice in addressing this current reform proposal; the Labour Government at the turn of the century took the easy option of introducing minimalist reform of the ombudsman sector in its last tenure in office, despite a whole raft of people being behind proposals for something more radical; and the current Conservative Government look like its set to repeat history with the current proposals.

There is very little new here. We could go back to the Whyatt Report of 1961, and its recommendations on the ombudsman and administrative justice – which remain worth reading to day. But take for instance more recent history. In 2008 the then Public Administration Select Committee published a report ‘When Citizens Complain’. Its conclusions included the following:

‘We are disturbed that there seems to be a systemic problem with first-tier complaint handling by government organisations.’

‘Public services need to adopt the perspective of citizens who use them. They should seek to discover what complainants hope to achieve from making their views known, and they should have a systematic and active strategy for monitoring and learning from complaints to inform service delivery.’

‘While individual organisations need to take responsibility for the services they provide, we identify a need for a centrally co-ordinated official effort to champion good practice in complaints handling and to monitor how organisations across government handle and learn from complaints in practice.’

If you read the various reports that have come out in recent years on the complaints system, the same things are being said – see for instance the National Audit Office report on complaint-handling last year, Putting Things Right. Who is responsible for this situation?

Likewise, back in 2007 the Public Administration Select Committee noted that scrutiny of watchdogs was all over the place. It went on to recommend that Parliament should coordinate its efforts to call watchdogs, such as the ombudsman, to account through the establishment of a Public Standards Commission to sponsor, audit and scrutinise their work on behalf of Parliament. Yet in 2016, as far as I can see Parliament still has not resolved to get fully on top of this, and scrutiny of the sector remains sporadic. Who is responsible for that?

I do give credit to the former PASC committee for its 2013/14 review of the complaints sector; and to Oliver Letwin in his response to that committee, and to the Cabinet Office for finding time to prioritise new legislation on the ombudsman. But there remains the sense that what is being done here is a minimalist effort, which is beginning to look more and more like a cost saving measure rather than a genuine effort to raise the profile of administrative justice. Given how infrequently administrative justice is raised as a matter for legislation, this is deeply depressing.

So this does seem to me to be the moment for Parliament to flex its muscles a bit and demand a more powerful model of an ombudsman and to build into the system a process whereby stronger surveillance of the complaint network can be achieved. By the way, I do hope that at the very least Parliamentarians will agree to the sacrifice of their current right to control a complainant’s access to the Parliamentary Ombudsman scheme.


Some ideas for creating a more proactive ombudsman scheme

Following on from this appeal, a second point I would like to promote is the idea of constructing a more powerful model of the ombudsman.

One of the most important roles that an ombudsman can perform is bringing closure to a dispute between users and providers. I do not want to minimise the importance of this role – particularly when it comes down to the individual experiences of aggrieved individuals. But, I worry that from the government’s perspective this role is the only thing that the ombudsman should be doing – and that when we see the draft bill that will be the only thing that the ombudsman has the time and space to deal with. With respect to this role, I think we should be looking for more imaginative solutions if in the future we really want campaign groups, such as those that have organised today’s session, to be less disenchanted with the work of complaint systems. 

For instance, there is a chance here for the ombudsman to be given a bit more freedom to react to complaints and information received as she sees fit. Most ombudsman schemes around the world possess the power to launch investigations of their own-initiative. The power is being included in legislation in Northern Ireland and being actively considered in Wales. The idea is that there will often be circumstances when complainants are unlikely to complain … or other circumstances when information comes to light of malpractice before the complaints come in …. or during the investigation of an individual complaint, wider issues are identified. I am of the view that where the ombudsman has had most impact in recent years has been where it has been able to expand its focus on individual cases to highlight systemic maladministration which has had a knock-on impact for hundreds and sometimes thousands of citizens. Two powerful reports of the ombudsman along these lines were considered in this House today. Consider also in the past the ombudsman’s work on Occupation Pensions, Equitable Life and unlawful charging of patients in care. I think this is the sort of work that makes a difference, but it happens too rarely – in part because the ombudsman’s powers are restricted. I should add that this is also where the Ombudsman can really assist Parliament.

But this proposal has been firmly ruled out by the Cabinet Office. The view is being taken that this model looks risky, will cost too much money, might overlap with the efforts of the regulators and there is insufficient evidence that it will work. In other words, a reluctance to innovate, experiment and we will muddle on in the same way as per normal.

But the key to administrative justice to me seems not to lie in resolving complaints, however important that is, but in making the system more intelligent – and better able to learn. For years, governments have talked about learning from complaints, yet in one of those PHSO reports that PASC was considering today, the continuing need to tackle this issue was emphasised. In her analysis of NHS Complaints Investigations where serious harm has been alleged, the PHSO made recommendations which echoed reports of a long time back:

·        There should be a national accredited training programme for complaints managers and investigations.

·        A new body, the soon to be formed Healthcare Safety Investigation Branch (renamed from the Independent Safety Investigation Service- see this Parliamentary hearing for the latest), should develop and champion principles of good investigation.

·        HSIB should work to share learning.

·        Trusts should demonstrate that they have clear objectives on complaint handling.

·        The Department of Health and NHS England should work with HSIB to make clear who has accountability for conducting quality investigations at national and local level.

On the one hand I find this report extremely exciting and positive. The introduction of a new specialised body for health services investigations could make a real difference and is just the sort of innovation that we should try. But why has it taken so long to arrive at this position? What about the rest of the public sector? And why can we not have a more coordinated approach to promoting better complaint-handling and use of information from complaints?  

The system for promoting good complaint-handling at first instance still appears to be sporadic and under scrutinised. In Scotland though they have attempted to provide a concrete structure to drive this agenda forward on an ongoing basis. In Scotland they have made improving complaint-handling a responsibility of the Ombudsman, a role which has involved giving the ombudsman fresh powers to monitor local complaint-handling – see the Public Services Reform (Scotland) Act 2010 for ideas as to how this might be achieved. In Northern Ireland this model is to be copied, and in Wales there is a proposal to do the same. In England, by contrast, there are some positive words in the various Government publications on the matter. But no clear commitment. I suspect that the view is being taken that this model looks risky, will cost too much money, might overlap with the efforts of the regulators and there is insufficient evidence that it will work. In other words, a reluctance to innovate, experiment and we will muddle on in the same way as per normal.     


Better accountability

Finally, I would like to highlight one area where I think the Government has got it right, but Parliament has an important role to play in checking the detail of their eventual Bill.

It looks like the Government are going to move to a Board structure for the new public service ombudsman. I think this must be right, as it allows for a more permanently embedded system of oversight and control of the ombudsman than has hitherto been in place – and will provide a better starting point for subsequent less frequent Parliamentary scrutiny. But when Parliament gets to see the detail of the proposal it is really important that a few issues of principle are clarified and protected to prevent problems in the future. For instance:

·        How is the independence of the ombudsman to be protected?

·        How is the autonomy of the ombudsman with regard to budget and action to be protected?

·        This must be Parliament’s Ombudsman, not the Government’s.

·        Who is going to be ultimately responsible – the Ombudsman or the Chief Executive? How are we going to avoid one or both denying responsibility and/or buck passing and/or confusion of responsibility?

·        What is the Board going to be responsible for? For instance, might we make it a duty for the Board to put in place robust internal review processes and to consult regularly with stakeholders, including fellow watchdogs and users of the scheme?



I could go on! Things that I would also like to talk about include: the impact of devolution, the need to ensure maximum coverage for the jurisdiction of the new ombudsman scheme; and the importance of empowering ombudsman schemes to receive and investigate complaints against private sector providers.

But to conclude. It is in part a mystery to me why administrative justice issues have so often been dealt with so weakly by government administrations. I don’t believe it is because politicians or administrators think it is unimportant or in any other cynical explanation. Maybe it is because the answers are just too difficult to organise and too burdensome to maintain and the upfront costs apparently too high to justify. But in this Bill, when it arrives, there is an opportunity to experiment in a better model for the future. I hope you MPs are brave enough to take the chance. 


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