By Richard Kirkham
This post was originally published on OA News, the online newsletter of the Ombudsman Association, on 22 December 2015. It is re-posted with permission of the author and the Ombudsman Association.
In a pleasant Christmas present for ombudsman watchers, the Cabinet Office has published a response to its summer consultation on proposals to reform and harmonise public service ombudsman provision in (primarily) England. Although the response does not attempt any detail on the forthcoming Bill that it plans to submit sometime midway through 2016, it does confirm that the proposals remain on track and provides some clues as to the likely framework of the reformed office. This post offers this ombudsman watcher’s first reflections on the Cabinet Office’s plans.
Qualified good news
The proposals to reform the public ombudsman sector have already had an extended gestation period (see the Gordon Report that preceded the consultation). But an administrative justice measure as important as this, particularly one that requires legislation, only rarely gets to the top of the public policy making pile. So credit to the Cabinet Office for its current focussed effort, which contrasts with the reluctance to tackle the issue for much of the previous twenty years and more.
As is evident from the consultation responses received by the Government, there are tricky issues to work through. Hence this reform should not be rushed, as it will probably be a long time before another legislative slot will be made available to correct any errors made this time around. However, the early signs are that the Government’s apparent initial receptiveness to radical ideas have been watered down by a pragmatic drive to put in place a more coherent and cost effective model for a modern ombudsman scheme.
One innovatory measure
Albeit in rather non-specific language, the Response gives the green light for the new Public Service Ombudsman (the PSO) ‘to monitor and champion improvements in complaints handling’. This is one area where the aspirations of the Government and advocates of enhanced administrative justice should be most closely aligned. As became clear in the Government’s response to the 2013-14 Public Administration Select Committee’s hearings into complaints, a culture of inadequate public service complaint-handling is widely perceived to exist and to be one of the barriers towards improvement in the delivery of services. But what we do not know from the Response is whether the Government is willing to invest in a model equivalent to the Scottish Complaints Standards Authority (including extra statutory powers), or whether it is content to leave it to the PSO to issue guidance on good complaint-handling as is currently the case.
One thing the Cabinet Office has committed to is creating a statutory duty for public service providers to signpost complainants towards the PSO, a long overdue measure even if it is already long established practice.
A commitment to the international ombudsman model
Just as the EU Directive on Alternative Dispute Resolution has committed the Government to enshrine in law standard understandings of what independent ADR entails, the Response offers assurance to the ombudsman sector that it accepts the criteria that underpin the sector’s claim to authority – namely: independence, fairness, effectiveness, transparency and openness, and accountability. These are principles that the Cabinet Office claims will inform the design of the PSO, with the similarity with the membership criteria of the Ombudsman Association a deliberate choice.
But the detail of the scheme could still be controversial, particularly given that there is no mention in the Response as to how the new PSO will be funded or of the standards that it will have to meet. Might, for instance, the principles of the EU ADR Directive be mirrored in the new Bill?
Improved accountability … but with traps
The risk with any reform is that well intentioned measures can lead to worse outcomes. The Response is clear that it ‘will create a modern governance structure for the organisation’, presumably in order to retain high standards and best promote quality decision-making. This must be right. The governance arrangements of ombudsman schemes, as with other public (and private) bodies, have come under scrutiny in recent years. While on paper all ombudsman schemes can be subject to significant external scrutiny, the rate at which such scrutiny has been exercised in the past has often been sporadic and low impact, except when things have gone wrong. But as the ombudsman sector becomes ever more the mainstream form of dispute resolution in many sectors, the onus on it to accept the burden of doing more to demonstrate the integrity of its product will surely increase.
The Response offers two solutions. One is to explore with Parliament the potential for enhancing its oversight of the PSO, as compared with the present arrangements. ‘This includes the possibility of a statutory body comprised of Parliamentarians to oversee PSO’s budget, strategy and performance.’ For this form of scrutiny there are models available from public service audit schemes and in the devolved countries. This solution looks attractive, but has two major drawbacks. First, it assumes that Parliament will be willing to commit the necessary resources to the task, a consistent focus that has rarely been present in the past.
Second, by making a Parliamentary select committee more evidently responsible for calling the ombudsman to account, there is a risk that the traditionally supportive relationship that the PHSO has enjoyed with its parent select committee would be broken. This matters because although the work of the new PSO should be scrutinised, it needs to be confident that Parliament will back it up in its occasional battles with the Government.
Altering the structure of the PSO’s relationship with Parliament might not be necessary though, if the Government gets its second good governance measure right. Following increasing best practice in the public sector (see also the consultation on the Independent Police Complaints Commission), it intends to establish ‘a statutory Chair and Board. The board will have corporate responsibility for the operation of the PSO and will also be responsible for ensuring the quality of the service it provides.’
This model already exists for private sector ombudsman schemes but is not uncontroversial. Who will select the members of the Board? Are some appointments to be prescribed stakeholder appointments? Is the Chair really to be a statutory appointment? Is the Chair an additional post to the statutory ombudsman? Who will appoint, and sack, the Ombudsman?
This latter point is perhaps the most important, as the classic standard of the international ombudsman community is that the ombudsman should be accountable for the performance of the office but should only be removed on a few narrow grounds. Any other situation creates the space for subtle political interference with the running of the office. Given the sometimes difficult issues of public administration that the PSO will have to deal with, this is a real concern.
Issues left for the PSO to resolve
The Report has decided, wisely in the view of this author, to leave a number of issues firmly in the discretion of the new PSO. The PSO will come with a statutory title, but how it brands itself in the future it has left for the new scheme to decide. The PSO will also have a prescribed jurisdiction, but will retain the discretion to organise its own office as needs require and change over time.
One issue that the Cabinet Office appears to have ducked is the devolution dilemma, which was one of the key reasons why previous efforts at harmonising ombudsman schemes failed.
‘[T]he new PSO will cover UK reserved matters as well as those public services delivered solely in England. As such it will mirror the accountability of UK reserved matters to the Westminster Parliament, relinquishing jurisdiction over those if and when they transfer to the devolved administrations.’
How the PSO deals with this hospital pass will be one of its first major challenges and the reaction of the devolved nations will be interesting. The new office will be predominantly an English Ombudsman – but will still be responsible for dealing with a small number of complaints from non-English constituents about reserved matters. At the very least, this double role should encourage the PSO not to include ‘England’ as part of its new brand name.
Another issue not dealt with for now is the outdated MP filter. As the new office will receive numerous complaints about health, local government and social care for which direct access to the ombudsman is currently made available, any retention of the filter would require Parliament to come up with a confusing statutory formulae for explaining when and when not the filter applied. Presumably, the Cabinet Office are politely leaving it to Parliamentarians to figure this out for themselves.
The radical vision is kicked into touch
Two significant possibilities for reform are more or less ruled out by the Response.
‘[W]e will … work to create a single service which will encompass the existing jurisdictions of PHSO and LGO only in the first instance with a framework that allows others to join over time.’
One radical option was to move firmly towards a single public services ombudsman, one that might enjoy significant advantages in terms of scale. With scale might come an enhanced opportunity to connect with the public and the capacity to set up regional branches that could more easily interact with local branches of public service provision, as indeed is advocated in the consultation for the IPCC reforms.
But any such grand vision is absent, with the initial plan to include the Housing Ombudsman in the new scheme firmly ruled out in the Response. What we have instead is effectively a merger of two offices, possibly a centrally located one, although one would hope with only a small base in London. This merger will succeed in addressing the most problematic areas of existing overlapping responsibilities – namely health and social care. But with the Government’s implementation of the EU Directive on ADR also supportive of the multiple ombudsman model, it would seem that for the next generation at least the goal of simplifying the sector has lost out in favour of specialisation.
The second radical option was for the ombudsman to be encouraged to become more of a preventive mechanism than a reactive complaint-handler. But the Response firmly rules out providing the PSO with an own-initiative power of investigation because ‘there is a risk that the introduction of such powers could detract from PSO’s role in putting things right for the individual citizen’ and create ‘further confusion in an already complex landscape’ of regulators. Such risks do not seem to have prevented the Northern Ireland and Welsh Assemblies from pushing ahead with the proposal to give devolved ombudsman schemes enhanced powers, or led to equivalent powers being removed from ombudsman schemes in much of the rest of the world. It is also out of line with the Home Office’s moves to expand the investigatory capacity of the IPCC.
Instead, the Response claims that the PSO will have wide powers ‘to carry out its work effectively and efficiently’ but what it proposes is in the main the confirmation of best practice that is already available in one or both of the schemes to be merged.
The work of the Cabinet Office on establishing a new PSO is a good thing; it is a sensible reform that should have been introduced years ago. But the proposals the Cabinet Office are putting together could have been much better. And perhaps they still will be; the December paper is only a response to a consultation after all. Perhaps the Bill will mirror in detail the proposed amendments for the Public Service Ombudsman for Wales and the new legislation in Northern Ireland in copying the Complaints Standards Authority model in Scotland. Surely the MP filter is now untenable and perhaps the new governance arrangements the Response refers to will be embedded in a way that does not threaten the independence of the ombudsman. Perhaps too it is not too late to find a formulae that separates out complaints from non-English constituents from a jurisdiction which is otherwise an English ombudsman scheme in all but name.
Overall, however, this looks like a pragmatic merger of two/three ombudsman schemes with a bit of modernisation thrown in, rather than a bold attempt to reinvigorate the ombudsman model.
About the author
Richard Kirkham is Senior Lecturer in the School of Law, University of Sheffield, and is co-author of the book The Ombudsman Enterprise and Administrative Justice (with Trevor Buck and Brian Thompson (Ashgate, 2011)).