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?
Conclusion
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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