Some introductory comments
1. I am an academic
researcher working at the University of Sheffield with a long-standing interest
in the field of administrative justice. As well as writing extensively on the ombudsman
enterprise, I was a member of an independent evaluation panel for the Local
Government Ombudsman in England in 2013 (External
Evaluation of the LGO). In
2007 I was employed by the Parliamentary Ombudsman’s office to write a
Parliamentary Paper on the scheme’s 40th Anniversary, “The
Parliamentary Ombudsman: Withstanding the test of time
(Fourth Report of the Parliamentary Commissioner for Administration, HC 421
(2006-07)). In that report, amongst other things, I noted that there were
strong arguments for merging aspects of the office with other ombudsman
schemes.
2. The administrative justice system, and indeed the civil justice
system, 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 in our systems of justice
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. Additionally, 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.
5. With all these factors in mind, this consultation process is
very timely and hopefully will lead to proposals that will help to strengthen
the potential of the ombudsman to both resolve complaints and increase
administrative justice.
6. If it helps, I have also copied with this response to your
consultation process a report, The
creation of an English Public Services Ombudsman: mapping a way forward, that
I wrote with Jane Martin (the current Local Government Ombudsman) in 2014 which
outlined the factors which I understand should underpin the harmonisation of
ombudsman schemes in England.
Response
to Consultation Questions
Q1.
Do you agree that these principles should underpin reform of the Ombudsman
service?
1.1 The four principles
put forward by the Gordon report provide a strong starting point from which to
design the new ombudsman service, but care will need to be taken to ensure that
these principles are fully and consistently unpacked when the new scheme is
designed.
1.2 Already in the
Consultation Paper there is an element of watering down of the principles,
which is concerning and might lead to interpretations of the principles that
could lead to restrictions being placed on the potential of the office. Noticeably,
the Consultation Paper has dropped Gordon’s fourth principle ‘Feasibility and
delivery’ that included the idea that flexibility should be built into the
design of the new Ombudsman scheme. Is this a worrying hint that the Government
might seek to place unnecessary restrictions on the powers of the new office?
What is needed is an ombudsman scheme capable of flexing to respond to future
developments in the provision of public services, not a scheme rooted only in
the 2015/16 administrative model.
1.3 If the Government
wants to reduce the core design of the new Ombudsman to four principles I would
suggest rephrasing and unpacking them as follows:
Best
for Citizens
1.4 Gordon’s first principle
specifically refers to ‘Best for Citizens – accessibility and effectiveness’,
making it clear that the ombudsman service should be designed to promote what
is best for citizens and not just be a complaint handler of citizen grievances.
1.5 Finding the design
that best facilitates this central aspect of the new Ombudsman’s work is going
to be the key challenge in drafting new legislation and should comprise a
number of discrete functions. I would suggest that all of the following
functions are necessary if the interests of the citizen are to be realised through
the new Ombudsman scheme:
·
Ensuring public awareness of the office.
·
Facilitating access to the office.
·
Promoting individual and public
understanding of the office.
·
Taking responsibility for promoting the
coherence of the wider complaints landscape.
·
Maintaining the capacity to offer a
quality complaints service. (The Ombudsman should not seek to become a mass
complaint handler, as that service is best retained at the local level)
·
Possessing the capacity and the networks to
share knowledge with and to influence policy-makers and service providers,
including private sector providers of public services.
·
Flexibility in operation to accommodate
future innovations in public service delivery and technology.
Accountability
and Parliament
1.6 It is not entirely
clear from the Consultation Paper why ‘Parliament’ should be considered a
principle underpinning the design of the new Ombudsman. Instead, it would be
better to view Parliament as a key vehicle through which accountability of the office is delivered. The Consultation Paper’s
recognition of the importance of establishing the independence of the Ombudsman
from the Government is very welcome and labelling the office a Parliamentary
office is an important tool in achieving that status. Establishing the accountability of the office
though is a bigger issue than Parliament alone, and should be secured through
carefully designed internal and external mechanisms in addition to Parliament.
1.7 Further, it is vital
that accountability should be considered as a two-way process. Thus the
Ombudsman must have appropriate opportunity and capacity to inform and support
the democratic scrutiny of public services, including local councils as well as
Parliament and any local participatory elements to other public services, such
as Health or Education. Similarly, if
accountability of public services is to be fully realised, there must be clear
channels of communication in place between the Ombudsman and other watchdogs to
reduce duplication and enhance the learning messages that scrutiny create.
Thought also needs to be put into ensuring that the Ombudsman has sufficient
powers to investigate and influence private sector providers of public services
1.8 Applying this broader
conception of accountability, Parliament’s accountability role can be
considered to be a fourfold one.
I.
Guarantor of independence
II.
Scrutineer of performance
III.
Supporter of the Ombudsman
IV.
User of the Ombudsman’s intelligence.
Value
for Money
1.9 Careful and ongoing
consideration will need to be put into applying the principle of value for
money, as if it is interpreted as a requirement that the office makes
short-term savings in expenditure then the much more exciting potential for the
office to encourage long-term improvements in public service delivery,
including savings in expenditure, will be compromised. Thus an overriding
concern here must be that the Value
for Money principle allows sufficient room for the interests of the
citizen to be promoted by the new institution. The new Ombudsman will need to
demonstrate:
·
The capacity to operate within budget and
relevant financial standards.
·
The relevance of its ongoing operations.
·
Evidence of the cost effectiveness of its
strategy.
·
The capacity to operate a free complaints
service.
·
A commitment to using technological
solutions.
Q2. Would you
welcome the creation of a single Public Service Ombudsman service and are these
the right services to be included?
2.1 Yes.
2.2 The
arguments in favour of a single Public Service Ombudsman for England have been
much rehearsed over the years and are largely based on the need to reduce
confusion to the citizen, avoid unnecessary overlaps in jurisdiction, improve
the capacity of the ombudsman office and reduce costs. The work of the Scottish
and Welsh public service ombudsman schemes have also helped to demonstrate the
potential benefits of an integrated service.
2.3 Given the
importance of offering a clear service to the citizen which avoids confronting
potential aggrieved citizens with a complex choice of potential redress routes,
the logical approach is to start from the premise that all public services
should be capable of complaint through one ombudsman scheme – and then only
exclude or separate out particular public services from that scheme should
there be a very clear rationale for doing so.
2.4 However,
merging ombudsman schemes is going to be a complicated and drawn out process
and it would probably be advisable to take a staged approach to the enterprise.
In recent years, a clear need has been identified to bring together the work of
the Local Government Ombudsman and the Health Service Ombudsman due to the
evident cross-overs in jurisdictions, in particular around social care
services. The integration of the Housing Ombudsman functions will be more
complicated, but in principle is a step in the right direction.
2.5 Beyond
these mergers, for the short to medium term legislation should be put in place
that will allow other schemes to be integrated into the new merged office at a
later date once the benefits of the new office have been successfully realised.
Q3 If so, do you agree that these are the right founding principles for such organisation?
3.1 As
discussed above, the principles outlined under Q1 properly interpreted could
provide a good starting point for designing the new institution. Here though I
would emphasise that establishing the right governance structure for the new
ombudsman scheme will be crucial. Reliance cannot be placed on Parliament alone
to establish robust oversight of the Ombudsman. For instance, in built into the
new Ombudsman scheme should the provision for a Board internal to the
organisation which would have responsibility for supporting and scrutinising
the work of the Ombudsman. Membership of the Board should be at the discretion
of the Ombudsman but might include a place for prescribed individuals, such as
a representative of the National Audit Office.
Q4 Should a single public service ombudsman organisation also retain specific sector facing services and staff in eg. Health or Housing?
4.1 The new
ombudsman scheme will need to be designed to retain ongoing links with the
sectors that it is responsible for. However, this should not be a matter for
legislation but for sensibly designed corporate governance arrangements. The
Ombudsman should retain ultimate responsibility for the manner in which
specific sector facing services are designed, albeit that those decisions will
be subject to the scrutiny of Parliament.
Q5 Should each sector within the organisation be led by a senior Ombudsman (or someone of equivalent status) eg a Housing, Local Government or Health Ombudsman?
5.1 As above.
In order to allow the new office the flexibility to respond to future
developments in public services and in complaint handling, the Ombudsman should
retain ultimate responsibility for the manner in which the staff structure is
organised.
Q6 Is ‘Public Service Ombudsman’ the appropriate title for a new organisation?
6.1 No.
6.2 Public Service
Ombudsman is a possible title but two overlapping issues need to be considered
very carefully otherwise they will haunt the office for many years to come.
(a) ‘England’ or
‘English’ needs to be in the title
6.3 The jurisdiction of
the current Parliamentary and Health Service Ombudsman (PHSO) scheme is complex
and involves overlapping jurisdictions. Sometimes the office deals with England
only complaints, sometimes England and Wales, sometimes England and Wales and
Northern Ireland, and sometimes UK complaints.
6.4 The majority of
complaints dealt with by the PHSO involve English public bodies dealing with
complaints from individuals that reside in England. The most important
arguments for a merged ombudsman scheme deal with the need to tackle the ad hoc
system of ombudsman schemes that have evolved in England. Accordingly, there
needs to be an English-only ombudsman scheme. For the public to understand this
development most clearly the title of the new scheme must include the word
‘England’ or ‘English’. Any other solution will confuse on the purpose of the
new office.
6.5 This leaves the
problem as to how to process the residuary complaints that will in the future
be submitted by citizens that do not reside in England, but who are aggrieved
by the powers of pan-UK public bodies currently within the jurisdiction of the Parliamentary
Ombudsman. Given the embedded importance of the devolution settlement and to
ensure proper branding of the new English office, this set of complaints will
have to be dealt with by a separate body.
6.6 A solution that
requires the establishment of a Parliamentary Ombudsman-only office will
probably not secure the support of a Government which is committed to a policy
of reducing the cost of governance, but there are other potential options on
offer. I list three here and would submit that all would be preferable to
integrating the residuary ‘old’ jurisdiction of the Parliamentary Ombudsman
into the new English Ombudsman scheme.
·
Devolved complaint-handling: One
option that has been suggested is that apan-UK body complaint should be
resolved upon by the Scottish, Welsh, Northern Irish or English ombudsman
scheme depending upon the residence of the complainant. This solution is flawed
in that it risks inconsistent decision-making and does not best allow for the
central collation of the intelligence gained from complaints.
·
Merged Parliamentary Officers: A
second option is that the ‘old’ jurisdiction of the Parliamentary Ombudsman is
merged with the jurisdiction of an existing Parliamentary Officer. The most
obvious candidate would the Parliamentary Commissioner for Standards (PCS). The
main difficulty with this solution would be that the existing post of the PCS
would as a consequence become a statutory post and this may meet resistance in
the House.
·
Merged UK Ombudsman Schemes: A
third option would be for new ‘Parliamentary Ombudsman’ role to take on a wider
role than the ‘old’ jurisdiction of the Parliamentary Ombudsman. For instance,
the area of defence, which is a pan-UK matter, might come within the
jurisdiction of the new ‘Parliamentary Ombudsman’. The Service Complaints
Ombudsman for the armed forces has recently been established by Parliament and
could be potentially merged with the new ‘Parliamentary Ombudsman’. The main
difficulty with this solution would be ensuring that the mandates and
organisation of the two functions do not conflict, in particular in terms of
ensuring the independence of the office.
(b) ‘Ombudsman’ or
‘Commissioner’
6.7 The strength of the
title ‘public services ombudsman’ is that it appears to match the evolution of
the ombudsman brand in recent years, in particular as developed in Scotland,
Wales and Northern Ireland. Further, efforts to promote and inform
understanding of the office would be made easier were public service ombudsman
schemes to carry a title that uniformly connected to a standard model of
complaint-handling, as defined by such groups as the Ombudsman Association. In
this respect, other schemes (although not all) in the sector are labelled
‘ombudsman’ and any move towards a different title would reduce ongoing efforts
to simplify the sector and clarify to the public the meaning of the brand. Much
of the ombudsman community (eg see the Ombudsman Association) have fought a
long complain to preserve and protect the title ‘ombudsman’ for many years and
can be expected to resist any change to the title.
6.8 Nevertheless, before
deciding on the title, careful consideration should be given to two generic
issues.
·
Gender: The
title ombudsman carries with it an implicit statement that the office holder is
a man. Given the ongoing efforts of 21st century Britain this is an
unfortunate linguistic hangover. In other countries schemes do exist that carry
another title, such as ‘Ombud’. Given that the new English ombudsman scheme
would be the largest in the UK, rebranding the office at this stage would carry
much weight in English speaking countries and could have a sizeable impact.
·
Helping people understand the office:
It is clear that moving away from the title ‘ombudsman’ would upset some
long-standing supporters of the ombudsman community. If such a move is to be contemplated
it would be wise to move beyond the gender debate and start from the principle
that what is required is a title that best captures the purpose of the office
in the mind of all the stakeholders of the institution, in particular the
citizen. Here the biggest challenge that the ombudsman community has
historically faced is (i) raising the profile of the office in the minds of the
general public and (ii) explaining the powers and role of the office. In this
respect there is a debate to be had as to whether the title ‘ombudsman’ is
helpful because it is a well-known global brand or unhelpful because amongst
the general public the word is unfamiliar.
6.9 If the basic goal of
a title is to inform the general public as to the purpose of the office – then
we should consider carefully whether ‘English Public Services Ombudsman’ or
‘English Public Services Ombud’ will be successful. By way of alternative, at
this stage it is worth at least asking the question as to whether the title
‘English Public Services Complaints Commissioner’ or just ‘English Complaints
Commissioner’ might succeed in getting the message across much more effectively.
6.10 The very legitimate
objection might be raised that the brand ‘Commissioner’ is no more meaningful
than ‘Ombudsman’ and might more readily attach to very different forms of
public body. However, the relevant point about the proposed title is not really
‘commissioner’ but the fact that the title is accompanied by the word
‘complaints’. Further it will be argued that creating a new commissioner would
confuse the landscape just at the point when we are trying to simplify it,
which in the short term must be a correct argument. But in the wider watchdog
landscape the title ‘Commissioner’ and ‘Commission’ already has power, as for
instance with the Information Commissioner and the Electoral Commission.
Increasingly, the title can be seen as a badge that indicates a powerful independent
watchdog. Finally it might be argued that the ombudsman title is a
well-respected international brand, whereas a complaints commissioner might be
perceived as a weaker meaningless variant. There is merit to this point, but
there are ombudsman schemes operating elsewhere in the world (and in the UK) which
do not include the word ombudsman in their title and can claim influence as a
complaints handler.
7. Do you
agree that there should be the widest possible routes of entry to a Public
Service Ombudsman?
7.1 Yes. The
one danger to this approach is the possibility of the new scheme being
overloaded by multiple forms of complaint (eg through the door, letters,
online, social media, via MPs, bypassing internal complaints routes). However,
the requirement for a single body within the administrative justice system to
take responsibility for receiving the sheer mass of complaints and enquiries
that citizens might have regarding their public services, including those which
are misdirected, is essential. There is a growing body of knowledge and ideas
within the ombudsman sector both in the UK and elsewhere as to how to deal with
this challenge. Additionally, advances in website design make it possible to
comprehend a one-stop complaint system being introduced which is capable of
channelling enormous numbers of complaints and enquiries relatively efficiently.
An excellent example is the exciting and pioneering introduction of the Resolver
website (http://www.resolver.co.uk/) by a former aggrieved complainant.
8. In what
ways could it be made easier for citizens to access resolution and redress?
8.1 Most of the key
solutions are already out there, but they need to be implemented more
coherently and without the inhibitions of the current legislative and
governance regimes. Eg:
·
Direct access to the Ombudsman must always
be allowed.
·
Complaints need to be submittable by a
range of different means (ie not just in writing).
·
The citizen needs to be better informed of
the option(s) to complain. A clearer complaints brand will help with this
objective, a cause that can in part be assisted by a unification of ombudsman
services, better publicity and a meaningful title.
·
Someone needs to be made responsible for
offering a unified online public service complaints advisory service, along the
lines already offered by Resolver in the private sector (although Resolver
offers advice on some public bodies already).
·
Someone needs to have overriding
responsibility for overseeing the coherence of the administrative justice
system. Within Government and Parliament there remains an excessive focus on
particular discrete aspects of the system and not enough consideration of the
system as a whole.
9 Would you
support a wider role for a PSO as a champion of effective complaints handling
across the public sector?
9.1 Yes.
9.2 The
Ombudsman is an institution with significant knowledge, not just of
complaint-handling but of the likely barriers to good complaint-handling, and
with a permanent vested interest in promoting good complaint-handling. It is,
therefore, a more viable location of responsibility for promoting good
complaint-handling than other solutions, such as the various sector regulators
or the Cabinet Office.
9.3 The model
of the Complaints Standards Authority within the Scottish Public Services
Ombudsman scheme is beginning to show evidence of securing real gains in
complaint handling within public services. The Welsh Assembly has recently been
looking at amending its legislation on the ombudsman and there is evidence
within their review of the ombudsman’s powers of the widespread agreement that championing
complaint-handling is an appropriate role for an ombudsman to perform.
9.4 But to
facilitate this role it is vital that the ombudsman is seen not just as a
complaints-handler, but also as a promoter of best practice.
10 What range of investigative tools do you think the PSO might need?
10.1 Current ombudsman
schemes already have the appropriate investigative
tools to do their job, with one exception. Thus ombudsman schemes
need:
·
The legal power to select which complaints
to investigate.
·
The legal power to require information and
witnesses to be made available.
·
The legal power to report publically the
findings and recommendations of their investigations.
·
The legal power to raise concerns with
Parliament about the failure of a public body to respond positively to their
investigations and reports.
10.2 The one exception to
the Ombudsman’s powers which is not currently possessed by UK ombudsman schemes
is the residuary power to launch an investigation of their own-initiative
should the office deem it necessary. This is a power held by many ombudsman
schemes around the world. The circumstances when such a power may be necessary
will vary, but would most likely include a situation in which, for one reason
or another, aggrieved citizens were unlikely to complain. The own-initiative investigation
(OII) also offers the potential for an ombudsman to investigate systemic
maladministration before it becomes a long-lasting and large scale problem.
10.3 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 ombudsman
to investigate such wider maladministration, accept in confined circumstances.
By contrast, the OII power would create the framework within which the ombudsman
could provide a more powerful and relevant service.
10.4 There are potential risks in introducing such an OII power,
but these can be managed through legislation and proper oversight. Eg:
Danger of overuse of the OII power to the detriment of
complaint-handling
10.5 The power of OII could dominate the work of the Ombudsman 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, and elsewhere the OII power appears to be used sparingly.
10.6 The scrutiny of Parliament should be adequate for gauging
whether or not the Ombudsman is overusing or inappropriately implementing the
OII power. Parliament 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 Ombudsman. Given this, the Ombudsman 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 Parliament. Should the process of scrutiny lead the Parliament
to have concerns about the office’s use of the power then it would be open to
it to amend the Ombudsman’s legislation in the future.
10.7 Further, the exercise of the OII power will come with
financial and human resources/research costs. Given likely budget constraints,
it is unlikely that an Ombudsman would choose to use this power other than as a
reserve tool to be employed as and where necessary.
Might an Ombudsman inappropriately use the OII power?
10.8 The Ombudsman 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 Parliament.
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.
10.9 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.
10.10 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 Ombudsman 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 Ombudsman 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 and any relevant regulatory body’.
· On the conclusion of an OII, the Ombudsman should be required to
submit a report direct to the Parliament, 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 Ombudsman 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 Ombudsman should have a power to issue a further
report.
· Finally, the Parliament should, as a matter of practice, dedicate
a select 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?
10.11 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.
10.12 Such a concern though misunderstands the work of the Ombudsman.
The authority of the Ombudsman 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 Parliament 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 Ombudsman report) and the political need to be able to defend its actions.
10.13 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.
10.14 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.
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