Varda Bondy, Margaret Doyle, and Carolyn Hirst
This month saw the publication of a Nuffield Foundation-funded mapping study on the use of informal resolution by ombudsmen (download here), launched at two events in London (at the Nuffield Foundation) and Edinburgh (at Queen Margaret University). Both were attended by practitioners and representatives from administrative justice fora from the UK and the Republic of Ireland, as well as academics with specialist expertise and interest in this field. Such an audience was, unsurprisingly, not shy about giving their reactions and offering their own views – which is how it should be, and it is hoped that the report will encourage further discussion of the issues raised in it.
While ombudsman schemes are in themselves considered to be part of the ADR scene, various alternatives to the investigation process as originally designed have been developed over time. Little was known about the process and outcomes of the majority of complaints resolved by those schemes.
Our aim was to identify and map the informal resolution approaches used by ombudsmen/complaints handlers and to identify the open sources of data available on the issue – or their absence, as the case may be.
We studied 48 Ombudsman Association member schemes that agreed to participate out of the 52 registered members, representing both public and private sectors across a range of complaint areas – including complaints about local and central government agencies, health, housing, higher education, legal services, financial services, the police, prisons, property and consumer utilities.
The focus of the report was, obviously, on the nature of informal processes, but as these need to be considered in a context, we recorded also other aspects of each schemes, such as number of investigators, caseload and outcomes.
One theme dominated the whole study, no matter what aspect we looked at, namely, terminology.
The very first term we struggled with was ‘ombudsman’, which appears to be regarded as a gender-neutral term throughout the UK. When we questioned this at the London launch, it generated lively debate which continued afterwards in person and by email and Twitter. This is a theme we would like to return to, so watch this space.
The term informal resolution proved surprisingly problematic. Three-quarters of participants (36 schemes) told us that they use some form of informal resolution as opposed to investigation determination and publication of outcomes, but the distinction between ‘formal’ and ‘informal’ was not always clear – to them, or to us. This was not helped by the multitude of terms used when referring to the nature of the process; nine of the 36 schemes used the term ‘informal resolution’ but others used ‘mediation’, ‘conciliation’, ‘early resolution’, and ‘local resolution’. It became apparent that different terms are used to describe the same process, and identical terms are used to describe different processes. ‘Mediation’, for example, is used to describe a face-to-face meeting between the parties to the complaint as well as a process of telephone negotiation separately with each party. ‘Conciliation’ is one scheme’s term for their informal process consisting of shuttle negotiation, whereas for another it is the term used for the formal part of their process, as opposed to mediation which is considered informal.
Annual reports, which are a primary source of information about the operation of complaints handlers, presented similar challenges when we tried to to gauge the nature and volume of their work and the various forms of resolution and disposal of complaints.
Nearly every scheme had a slightly different way of describing its caseload and outcomes: they referred variably to complaints received and enquiries received, cases resolved and cases closed, cases closed prior to investigation and cases in which assistance was provided, to mention but a few. We did not seek to compare these factors as between schemes, but certainly these individualised presentations would make any comparison entirely impossible. Off the record, it was indeed suggested to us that at least some complaints handlers are anxious, rightly or wrongly, to avoid the possibility of comparisons being made in the context of efficiency and budget considerations. For others there are commercial sensitivities in the context of competition among ombudsmen. We do not think that straight comparisons can be made usefully, given the specific characteristics of complaints, but nevertheless, there is no need for, or benefit in, such proliferation of approaches to presenting basic data.
Other aspects of the study included the extent to which informally resolved outcomes are published, what criteria are used to identify the suitability of an informal process for a particular complaint, what training case handlers receive in informal resolution, and whether users’ feedback is sought. The lack of uniformity of approach to these aspects was also striking.
Key themes arising from the responses related to concerns, expressed by academics and others, about risks to accountability, transparency, and consistency in ombuds practice. These issues are related – lack of clarity in the terminology used is not conducive to promoting transparency of process. Some participants reported on-going initiatives for improving transparency of process within their own schemes.
Although many expressed surprise at the multitude of terms and differences in describing informal processes, a discussion as to whether and how this issue can be addressed has yet to take place.
There is also a need for dedicated exploration of the relationship between speed and flexibility on the one hand, and consistency and standardisation on the other in the context of efficiency, justice, complainants’ needs and improvement of initial decision-making.
More work is needed on understanding the processes used, the outcomes achieved, and what parties to complaints actually want, as well as on developing a framework of processes used by ombuds, defining best practice and identifying the appropriate skill set.
About the authors
Varda Bondy is co-investigator on the UKAJI project. Previously she was a senior research fellow at De Montfort University and Research Director at the Public Law Project.
Margaret Doyle is a consultant in appropriate dispute resolution (ADR) and an independent mediator. She is the author of Advising on ADR (Advice Services Alliance 2000) and consultant for the website ADRnow.
Carolyn Hirst has expertise in dispute prevention, management and resolution. She is a former Deputy Scottish Public Services Ombudsman, a post she held from September 2002 until 2007. Before that she worked in Social Rented Housing for nearly 20 years, latterly as a Deputy Director of a Housing and Care Organisation. Carolyn now works as an independent consultant through her own company, Hirstworks.
V Bondy, M Doyle, and C Hirst, “What’s in a name? The challenges of terminology in studying ombuds practice” UKAJI Blog (17 October 2014) (available at https://ukaji.org/).
The lack of clarity in the terminology is deliberate – this spin has led people who have contacted the PHSO with (mostly) NHS complaints to be rebranded as “enquirers” – there are 15,000 of these ‘enquirers’ who have not had their complaint investigated by the PHSO yet the PHSO refer to them as “resolved”. You only become a “complainant” when they take your complaint on for an investigation…
The PHSO department that deals with complaints about their service is labelled “Review Team” – this is so that they can say ALL complaints that they deal with are from people who are unhappy with the OUTCOME of their complaint. They do not separate this data and again this would be deliberate.
Another example is the Welsh Ombudsman who use the word ‘(Quantum) report’ – meaning they have assessed your complaint the same way a solicitor would in a clinical negligence claim but the PHSO just say “Report”- even though essentially that is what they are doing too – they just don’t want us to know..