Some introductory comments
1.
As well as writing extensively on the Ombudsman, I was a member of an
independent evaluation panel for the Local Government Ombudsman in England in
2013 (External
Evaluation of the LGO).
2.
The administrative justice system, and indeed the civil justice system, in
Wales and the UK is an evolving network of processes and institutions. It is
also one in which less and less reliance can be placed on the courts and the
structures and processes that support them to deliver universal ‘justice’.
3.
Ombudsman schemes, and ADR more generally, have been exposed to criticism, and some
aspects of that criticism are justified. But, the potential benefits of this
model of dispute resolution are significant and, as the EU Directive on ADR emphasises,
the trend towards ADR looks set to continue.
4.
The ombudsman enterprise remains relatively young and the processes employed
are still being refined. In particular, there is still work to do to raise the
profile and robustness of ombudsman schemes.
5.
Finally, the landscape within which the ombudsman operates is changing rapidly due
to developments in information technology, the merging of the public and
private sectors and the pressures of austerity politics.
6.
With all these factors in mind, this review and set of proposals is a model of
good practice in helping to strengthen the potential of the ombudsman to both
resolve complaints and increase administrative justice.
Q1
7.
The current 2005 Act has facilitated a
robust ombudsman scheme and within the UK there are a number of schemes that
would benefit from using the Welsh model as a starting template.
Q2-4 & 17: Own initiative investigations (OII)
8.
An ombudsman scheme should have powers of own-initiative investigation (OII)
for the reasons outlined by the PSOW; note too the additional evidence provided
by the PSOW of good use being made of OIIs elsewhere. In research conducted a
few years ago in Australia and New Zealand, my colleagues and I found universal
agreement amongst ombudsman schemes that the role could not be performed
properly without the capacity for OII.
9.
The OII power offers the potential for an ombudsman to investigate systemic
maladministration before it becomes a long-lasting and large scale problem. In
some circumstances, it provides the opportunity for the redress of grievances
that in all probability would not lead to a complaint because of the nature of
the aggrieved individual (eg they are young, vulnerable, in care).
10.
The circumstances when an OII would be required would, I anticipate, be rare.
Most forms of grievance come about as a result of highly individualised fact
patterns. But the history of ombudsman work provides much evidence of systemic
maladministration in the provision of public services which goes beyond the
individual complaint. Currently, legislation makes it difficult for the PSOW to
investigate such wider maladministration, accept in confined circumstances. By
contrast, the OII power would create the framework within which the PSOW could
provide a more powerful and relevant service.
11.
There are potential risks in introducing such an OII power to Wales, but these
can be managed through legislation and proper oversight. Eg:
Danger of overuse of the OII power to the detriment of
complaint-handling
12.
The power of OII could dominate the work of the PSOW to the detriment of its other
roles, but it is highly unlikely. The EU Ombudsman, which is a relatively large
scheme, and the Ontario Ombudsman in Canada have both made extensive use of the
power. But these schemes are exceptions to the rule, for elsewhere the OII
power is used sparingly.
13.
The scrutiny of the Assembly for Wales is adequate for gauging whether or not a
PSOW is overusing or inappropriately implementing the OII power. The Assembly
should not have any power to intervene in an OII once an investigation has been
commenced. But it should have a role in scrutinising the output of the PSOW.
Given this, the PSOW will be wary of pursuing a strategy with regard to OIIs
which it could not defend or gain the long-term support for from the Assembly. Should
the process of scrutiny lead the Assembly to have concerns about the office’s
use of the power then it would be open to it to amend the PSOW’s legislation in
the future.
14.
Further, the exercise of the OII power will come with financial and human
resources/research costs. The PSOW has offered an initial costing of the
resources to be employed in this capacity. Given current budget constraints
(and the rising numbers of complaints that the PSOW receives), it is unlikely
that a PSOW would choose to use this power other than as a reserve tool to be employed
as and where necessary.
Might a PSOW inappropriately use the OII power?
15.
The PSOW could take on inappropriate OIIs or be tempted into OIIs on the back
of Government, political or media pressure, which in the long-term might raise
a significant reputational risk. It might even lead to the loss of good will
with the administration and/or the public and the Assembly. A linked concern is
that the power of OII might lead to over-scrutiny or duplication of efforts
with regulatory bodies, or that ‘fishing expeditions’ might be initiated without
clear evidence of administrative wrongdoing.
16.
These are risks, but they are risks that already exist for standard large scale
investigations that ombudsman schemes sometimes put in place following a series
of similar complaints. See for instance the work of the UK Parliamentary
Ombudsman into Occupational Pensions and Equitable Life during
the 2000-2010 period.
17.
Such concerns are not, therefore, strong arguments against the OII power, but they
are reasons for ensuring that the power is accompanied by a robust and
transparent process ie:
· The PSOW should be required to consult before commencing
(or closing) an OII and give reasons. For instance, legislation might express
the power as one to be used ‘where the PSOW is of the opinion that it is in the
public interest to commence an OII having first consulted with relevant
parties, including the Auditor-General for Wales and any relevant regulatory
body’.
· On the conclusion of an OII, the PSOW should be
required to submit a report direct to the Assembly, although it may also be
required to send a copy to a Minister and any organisation impacted by the
report.
· Within an appropriate time-frame, any relevant
bodies the report has made recommendations about should be required to inform
the PSOW of their response to the recommendations. Should the relevant bodies
decline to implement the recommendations in whole or in part then they should
be required to provide reasons.
· Should the relevant bodies decline to implement
the recommendations then the PSOW should have a power to issue a further
report.
· Finally, the Assembly should, as a matter of
practice, dedicate a select committee (presumably the Finance Committee) to considering
the report and, where necessary, hold an inquiry on the matter, including
consideration of the effectiveness and appropriateness of the report.
Might the OII power interfere with the responsibility of
providers?
18.
In the past it has been argued that the OII power would curtail a public
authority’s lawful discretionary power, or may lead to a prescriptive set of
recommendations as to how a particular administrative process is managed,
including on the policy behind that process.
19.
Such a concern though misunderstands the work of the PSOW. The authority of the
PSOW rests on the quality and accuracy of its findings, the appropriateness of
its recommendations and its ability to retain support amongst key stakeholders,
including the Assembly and the Government. Within this process, the public
authority does retain the right to exercise its full discretionary power, the
only restriction is that it must do so according to standard administrative law
grounds (which include responding rationally to the PSOW report) and the
political need to be able to defend its actions.
20.
To conclude, therefore, use of the OII power would increase the burdens on a
public authority subject to an OII, but it would not remove the responsibility
to act from the authority concerned. Given the importance of the issues that
would no doubt underpin an OII, within a constitution committed to accountable
government and continual improvement in administration, this is an appropriate
balance.
21.
The proposed extra financial costs appear realistic and indicate an intention
not to overuse the OII Power in the short-term. In practice, I would expect the
PSOW to operate a flexible office within which staff would be shifted in and
out of OII work as demand requires.
22.
The benefits that may be gained through OIIs will be very hard to quantify, but
will include: extended redress; improved access to administrative justice; more
frequent systemic recommendations on improving administrative performance; and
potential long-term financial savings from improved administrative performance.
Q5-7: Oral
Complaints
23.
The type/form of submission by which complaints are made should be left to the
discretion of the PSOW, including whether to accept oral complaints. One of the
key demands on ombudsman schemes today is to provide a better service to the
complainant, with expectations increasing all the time in part because of
technology advances. In order to allow the PSOW to improve the quality of its
service it should be given the flexibility to innovate.
24.
The EU has passed a Regulation on Online Dispute Resolution and it would be
advisable for the Welsh legislation to be written widely to ensure that it
remains in compliance with developments in this area.
25.
So long as the legislation is not too prescriptive, the PSOW will be able to
devise suitable filtering mechanisms to ensure that it is not overrun with
complaints that require investigation. Ombudsman schemes already have
sophisticated processes in place to protect the system from abuse.
Q8-9: Complaints
handling across public services
26.
There is a growing body of evidence (eg the Public Administration Select
Committee’s report into complaint handling in 2014) to suggest that the complaints
system set up in the UK is excessively complex. The Welsh model pioneered by
the PSOW offers a powerful potential solution and the powers of the Scottish
Public Services Ombudsman would map very nicely onto the PSOW. I would also
advocate making it a statutory duty of public authorities to have a complaints
process in place; for that process to be advertised to service users; and for
the throughput of the complaints process to be reported to the PSOW on an
annual basis.
Q10-13: Ombudsman’s jurisdiction
27.
Wales is in a strong position in that it has just one ombudsman service for the
public sector as a whole. As a matter of general policy, this unified model
should be built upon. It is widely understood that a model of public service
provision that involves increasingly
integrated governance across the public/private boundary has become pervasive. This model should be reflected in a complaint
process which is flexible
enough to oversee complaints that cross over traditional public service
boundaries.
28.
I am in favour of the limited extension of the PSOW’s jurisdiction to self-funded
private healthcare. As a matter of good practice, private healthcare providers
should be linked to an independent complaints process as well as judicial
scrutiny. The PSOW’s proposal would appear an efficient solution.
29.
As a matter of principle, I would consider charging on a case by case basis,
with the potential for added costs for non-compliance to the PSOW’s
recommendations. But the PSOW himself has suggested that this would be
disproportionate given the low number of such complaints anticipated.
Q14-16: Links with the courts
30.
It is unclear to me that the statutory bar any longer serves a meaningful
purpose and it possibly sends out the wrong message. Both the courts and the
ombudsman have sufficient discretion and incentive to filter out claimants attempting
to seek redress through both forums. I
would support the Law Commission’s 2011 proposals, but whether this is a major
problem given the existing discretion of the PSOW to accept complaints is
unclear.
31. The power to refer a legal
question to court could be useful in certain, rare circumstances and I would
support the proposals of the Law Commission in this area in its 2011 report. For instance, the court ruled in Argyll
and Bute Council, Re Judicial Review of a Decision of the Scottish Public
Services Ombudsman [2007] CSOH 168 that in producing her report the
Ombudsman had misinterpreted the law. The law in question was vital to the
Ombudsman’s finding of maladministration. In similar instances, the ombudsman
may be able to avoid the legal question altogether and find an alternative
basis by which to establish maladministration, but this will not always be
possible. Nor is it always possible for the ombudsman to identify the point of
law that requires interpretation when the complaint is first submitted and so
refuse to investigate (a point accepted in R v Local Commissioner for
Administration, ex parte Liverpool City Council [2001] 1 All ER 462). Thus
there will be occasions when during the course of an investigation the
ombudsman is forced to address a difficult question of law.
32. But to implement this
proposal just in Wales would impact on the practice of the courts in England
and Wales, and may as a result be outside the jurisdiction of the
Assembly.
Q18-24: Comments on the
other issues
33. Regardless of the proposed
new powers, on a regular basis the Assembly should be undertaking a rigorous
evaluation of the PSOW, including its legislation. Such a review should go
beyond the review of an Annual Report and might be based upon a commissioned
independent study. Such broader Assembly evaluations of the PSOW might be
planned to dovetail with the fixed terms of each office-holder (ie once every 7
years).
34. For a number of
reasons, the recommendations of the Ombudsman to public bodies should not be
binding. At present, most ombudsman schemes express satisfaction with the very
high implementation rates of their recommendations and the common law has
recently shifted to give strong legal force to their findings. However, as more
complaints are received on public service matters which are provided by private
sector organisations this is an issue that may have to be reconsidered in the
future for those bodies which are not subject to political accountability regimes.
35. The Assembly could
be obliged to consult with the PSOW when creating new bodies, to avoid the
title ‘ombudsman’ being used inappropriately.
36. The code of conduct
complaints role is a difficult one for an ombudsman to perform given its potential
to draw the PSOW into issues that lead to a local authority losing trust in the
institution. One option might for the role to be transferred to the
Commissioner for Standards which performs a similar role in regard to the
Assembly.
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