This response contributed to a consultation process by the Finance Committee of the Assembly for Wales. The response to the consultation (March 2016) can be found here.
Introduction
I am an academic
who has researched and written on the ombudsman institution for over ten years.
In the past I have acted as a consultant for the Parliamentary Ombudsman in the
drafting of the Parliamentary Paper Withstanding
the Test of Time, HC421 (2006/07) and as a member of the team that wrote An External Evaluation of the Local
Government Ombudsman (2013: LGO Website).
General
Does the Bill improve the effectiveness of the role of the
Ombudsman?
1.1 Yes. The draft
Bill: (i) smooths out the process for submitting complaints and (ii) upgrades
the ombudsman scheme by creating some new powers (eg own-initiative
investigation, standards authority, and limited jurisdiction over private
health care providers).
1.2 This upgrade
is the direction of travel that all ombudsman schemes need to take if they are
to become an accountability institution more capable of contributing
proactively towards the improvement of public service delivery for the benefit
of the user. Complaint-handling requires a multi-layered initiative, with the
ombudsman at the top of the system dealing with the most intransigent and
complex disputes, testing to see that complaints intelligence is properly
recorded and assimilated, and providing expert advice as and where appropriate.
1.3 Without more
intelligent tools to work with, an ombudsman scheme’s broader contribution will
likely be sporadic and reactive, with the associated risk that gaps are left in
the oversight of good complaint handling and systemic learning from complaints.
What, if any, are the potential barriers to implementing the
provisions of the draft Bill? Does the draft Bill take sufficient account of
them?
2. In terms of
risk, the major barrier to success are that (a) an ombudsman uses the new
powers unwisely; (b) the proposed new system does not create strong enough
incentives to encourage investigated authorities to comply with directions of
the Ombudsman; and (c) the process for calling the ombudsman to account is not
robust enough. I believe that the draft Bill does take account of these risks
but I have some comments at Q.35 below.
Are there any unintended consequences arising from the draft
Bill?
3. Under the Bill,
in the Health sector there will be a disparity in complaints provision between
users whose care is solely self-funded and care which is partly publically funded.
Unless the existing complaints system in the private healthcare sector is
capable of raising its standards, then this disparity will lead to pressure for
a new body (or possibly the Public Services Ombudsman for Wales) to take on
responsibility for complaint-handling in this sector.
At what point should the impact of this legislation be evaluated?
4. I have argued
elsewhere that most ombudsman schemes are not subject to sufficient/appropriate
scrutiny. All ombudsman schemes should be fully evaluated (in addition to the
standard annual Assembly cycle) on a cycle that matches the term of office of
the office-holder. Therefore, presuming that the legislation was passed and
then came into force within the next 18 months, an appropriate moment in time
would be towards the end of the period of office of the current office-holder
(ie 3-4 years after the new legislation came into force).
Power to investigate on own initiative
Do you have any comments on the new power in section 4?
5. See Q1 above. I
see this as an important evolution of the ombudsman office which is in line
with many schemes around the world. We need ombudsman schemes to be capable of
raising the alarm early where systemic malpractice is occurring in the delivery
of public services. Ombudsman schemes currently can do this, and sometimes with
tremendous impact, but experience has shown that in the UK the reports of the
ombudsman tend to have this impact only sporadically. Two major reasons for
this are that: (a) they are required to wait for a complaint before they can
investigate; and (b) they are not sufficiently geared up to assimilate the
intelligence that can be obtained from complaints in the sector as a whole. The
own-initiative power should operate to make it easier for the ombudsman to
intervene early and to create added incentives for the ombudsman to ensure that
complaints data is being properly mined for clues as to public service
failings.
Does the inclusion of this power raise any unintended
consequences in the rest of the draft Bill?
6. There are risks
that an ombudsman might: embark on empire building, add to the regulatory
burden on public service providers, undertake work which overlaps with other
accountability institutions, add cost to its own operation, or reduce its focus
on its core role of complaint-handling. Further, these are all concerns that
come with no guarantee that an ombudsman can make a difference if it were given
a broader role. I believe that the answer to these risks lies in accountability
mechanisms to focus the mind of the ombudsman to ensure that the powers are
used appropriately.
With whom should the Ombudsman consult under section 4(2)?
7. The approach
contained in the Bill is a clever one. Rather than trying to work out all
questions in advance, the onus is placed on the ombudsman to describe how the
power will be exercised and the processes taken in decision-making. Once the
decision is made the ombudsman will be politically and legally accountable for
the exercise of this power. If the parties that should be consulted were to be
named it should include: the investigated body, relevant user interest groups,
the relevant regulator and the Assembly. I am not convinced this is necessary
however.
Should the Ombudsman have the power to initiate an
investigation based on action that took place prior to the draft Bill/Act
receiving Royal Assent (see section 4(4))? If so, …
8. Probably not.
The office will have much to do to assimilate its new powers under the draft
Bill and it would be appropriate to have a first phase of assimilating those
new powers (in particular the powers of Standards Authority). However, consideration
should be given to including a provision to deal with scenarios in which the
ombudsman is investigating a ‘post-new Act’ matter but upon which elements of
that investigation originate from the ‘pre-new Act’ period. This should be
written as a discretionary power to be exercised by the ombudsman. Eg ‘The
Ombudsman may investigate matters that arise before [implementation date] where
it is necessary to complete an investigation into an ongoing matter post
[implementation date] that the Ombudsman has decided to commence under s.4.’
What kind of issues should be included in the criteria for
own initiative investigations?
9. As with Q7
above, I think that the approach contained in the Bill is the appropriate one.
Rather than trying to work out all questions in advance, the onus should be
placed on the ombudsman to describe how the power will be exercised and the
processes taken. It is difficult to comprehend a short list of criteria for own
initiative investigations, other than to require the ombudsman to exercise the
power in the ‘public interest’.
What kind of evidence should be available to the Ombudsman
to justify an own initiative investigation (see section 5(2))?
10. The evidence
required should be restricted to ‘reasons’. The emphasis should then be on the
new legislation to put in place suitable accountability arrangements.
Who can complain
Do you have any comments on the new definition of “member of
the public”?
11. No.
Requirements for complaints made and referred to the
Ombudsman
Do you have any comments on the new requirements for
complaints made to the Ombudsman in section 8?
12. As with Q7
above, I think that the approach contained in the Bill is an appropriate one.
Rather than trying to work out all questions in advance, the onus is placed on
the ombudsman to issue guidance on how the power will be exercised and the
processes taken. Once done the ombudsman will be politically and legally
accountable for the exercise of this power. The minimum requirements of this
new power are appropriate and leave sufficient flexibility for the ombudsman to
adapt the process for receiving complaints as new technologies and means of
communication evolve.
How should the proposed guidance for making a complaint to
the Ombudsman be published and what formats should be available?
13. Apart from
requiring that the guidance is published that sort of detail should not be in
the Bill. The Ombudsman should be free to make that decision, subject to
scrutiny by the Assembly.
Matters which may be investigated
Do you have any comments on the new provision enabling the
Ombudsman to investigate the whole complaint when a combination of treatment
has been received?
14. This is a
sensible expansion of the ombudsman’s jurisdiction. There is an overlap between
the public and private sector, and a number of possible solutions for dealing
with those overlaps. There is no axiomatic reason why a public services
ombudsman scheme should not investigate private sector matters and some
equivalent schemes elsewhere already investigate private sector matters precisely
because of the greyness of the overlap between the public and private sectors.
If there are unintended consequences of the new jurisdiction these should be
dealt with through a fuller consideration of the generic issues which relate to
complaint-handling in the private healthcare sector.
Does section 10(2) adequately cover anyone who has received
combined treatment?
15. Yes.
Does the broadening of the matters which may be investigated
in section 10(2) raise any unintended consequences in the rest of the draft
Bill?
16. In the future
there will be a disparity in complaints provision between users whose care is
solely self-funded and care which is partly a result of public sector healthcare/funding.
Unless the existing complaints system in the private healthcare sector is
capable of raising its standards, then this disparity will lead to pressure for
a new body (possibly the Public Services Ombudsman for Wales) to take on
responsibility for complaint-handling in this sector as well.
Is the definition of “private health services” in section 71
broad enough to cover anyone who has received a combination of public and
private treatment?
17. Yes.
Should the Ombudsman have powers to recover costs from
private health services?
18. My
understanding from the previous round of consultation on these proposals is
that, in the short term at least, the scale of this new jurisdiction will be
small. If correct, then introducing a new process for recovering costs will
probably be disproportionate and antagonise private healthcare providers, who
the Ombudsman will be working with in introducing this new complaint-handling
jurisdiction. Therefore, at this stage I would propose not charging for
complaint-handling. However, the Ombudsman and the Assembly will want to keep
this issue under review and two scenarios might lead to the Assembly
introducing amendments in the future. (i) If the turnover of complaints is
significantly higher than anticipated and (ii) if the Ombudsman experiences
problems in persuading private healthcare providers to implement the office’s
recommendations.
Do you have any comments on the new definition of “family
health service provider?
19. No.
Investigation procedure and evidence
Do you have any comments on the procedure set out in section
16?
20. No.
Should the Ombudsman’s power in relation to obtaining
information, documents, evidence and facilities also apply to own initiative
investigations?
21. Yes.
Listed Authorities
Do you have any comments on the restrictions on power to
amend Schedule 3?
22. No.
Are there any other bodies that should be included in the
list in Schedule 3?
23. Not that I am
aware of.
Complaints-Handling
Do you have any comments on sections 33 – 39 (which mirror
sections 16A to 16G of the Scottish Public Services Ombudsman Act 2002)?
24. No. See Q1
above, I am in favour of this expansion of the Ombudsman’s powers as experience
has shown us that there is a shortfall in the overall system in terms of
driving forward quality complaint-handling and data collection at the service
provider level.
Is section 38(b) adequate to allow listed authorities to
comply with their duties under other enactments, such as Freedom of Information
duties?
25. No comment.
Part 4: Investigation of complaints relating to other
persons
Should Part 4 remain a standalone Part?
26. It is unclear
to me what the remaining justification is for retaining the separate Part. For
the purposes of simplicity and clarity Part 4 should be brought within Part 3
otherwise users of care homes may be disadvantaged, albeit only in minor
respects. There would also be room for unnecessary subsequent legal wrangling
should a complaint overlap the two Parts of the Act.
If Part 4 should be brought within Part 3, are there any
specific elements of Part 4 that should survive? Or can a blanket approach be
applied?
27. A blanket
approach should be applied.
Part 5: Investigations: supplementary
Do you have any comments on sections 62, 63 and 64?
28. No.
Should sections 62 and 63 cover future Commissioners that
may be created by the Assembly, including the Future Generations Commissioner
for Wales?
29. Yes, although
presumably an amendment could easily made as and when a future Commissioner is
introduced.
Are there any further technical changes required in Part 5
of the draft Bill, to reflect the broadening of matters which may be
investigated?
30. No.
Appointment etc
As an aside, it is
very unclear to me what para.3(4) means. I would recommend redrafting.
Do the provisions of paragraphs 5 to 8 of Schedule 1 require
updating?
31. No.
Paragraph 7 of Schedule 1 provides that a person who has
ceased to hold office is disqualified from a list of roles for a period of two years.
Is the two year period appropriate?
32. Yes.
Do you have any comments on the matters which are included
within “paid office” in paragraph 8 of Schedule 1?
33. No.
Financial implications
Do you have a view on the financial implications of the new
provisions set out in the Bill?
34. The new
provisions will increase the costs of operating the Ombudsman office, but not
substantially. Moreover, the potential benefits in financial terms, as well as
service delivery terms, could be significant and should outweigh the upfront
costs. Further, the extra work conducted by the upgraded Ombudsman should ease
the existing burden on regulators operating across the public sector.
Other comments
Do you have any other comments you wish to make about the
draft Bill?
35. Two areas that
are not touched upon in the draft Bill to a great extent are networking and
governance/accountability. Part 5 of the Bill refers to situations where an
investigation is being conducted which requires shared working with another accountability
agent. These are important provisions, but might there also be a requirement for
the ombudsman to report on ongoing endeavours to liaise with other
accountability agents to identify areas of mutual concern? The detail as to how
this should be achieved need not be specified, but in order to reduce the
potential for matters of concern falling between two accountability agents the
Ombudsman should be required to provide evidence that they have combined their
intelligence in some way.
36.
Similarly, although the draft Bill provides for various reporting requirements
for the Ombudsman, there is little in the Bill to detail how the scrutiny
should take place. This may not be problematic so long as the Finance Committee
retains its current commitment to scrutinising the Ombudsman, but can this be
guaranteed into the future? Other schemes provide for embedded Boards to
scrutinise the Ombudsman’s work on a more regular basis. Some schemes operate
user panels, publish all their decisions and have established review processes
to deal with complaints against the ombudsman. The EU Directive on Alternative
Dispute Resolution requires all ADR providers to comply with certain
performance standards. Might the Bill provide further detail on the processes
of scrutiny that the Ombudsman should be exposed to and the minimum level of
information that they should provide about the scheme within the scrutiny
process?
[1] Senior Lecturer, School of
Law, University of Sheffield: http://www.sheffield.ac.uk/law/staff/academic/rkirkham
No comments:
Post a Comment