On 5 December 2016, the Cabinet Office published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman to create a new organisation with strengthened governance and accountability for complaints about public services in England.
The Bill has had a long gestation, starting with a review in 2014 by Robert Gordon QC, then a public consultation in spring of 2015, the government’s response one year ago, and now the draft Bill. Over the next few weeks UKAJI will publish a series of pieces on the draft Bill, from a range of contributors and perspectives. In this initial post, two academics with years of experience studying the ombud world explore the main changes in the legislation and ask: Do they constitute significant reform?
By Richard Kirkham and Brian Thompson
The long awaited draft Bill on a Public Service Ombudsman (PSO) has been published by the Cabinet Office. The Bill implies that the intention is for the Act to be passed in 2017 (cl.33(5)), but the lengthy history of this proposal is such that we should remain sceptical as to its likely implementation date. Overall, the Bill represents a significant advance on the present but it is nevertheless a conservative model of the ombud enterprise when compared to its counterparts in the UK (eg see the Public Service Ombudsman Act (Northern Ireland) 2016) and elsewhere. As highlighted in an earlier post, the Government has not provided the ombud with full powers to seek out systemic maladministration or to drive better complaint-handling within public services.
Debates as to the merits of the Bill we will leave to a later discussion, but in this post we focus on selected aspects of the Bill which represent an advance on its predecessors.
Enhanced expectations of accountability
The template of the original Parliamentary Commissioners Act 1967 for many years withstood the test of time by virtue of its brevity (14 pages) and the flexible discretion it granted the Ombudsman. The draft Bill, by contrast, is three times as long (42 pages) and is significantly more prescriptive as to the use of the office’s discretionary powers. The explanation for this development lies in part in the need to bring together three (and potentially four) existing ombud schemes, but it is also due to the long-standing need to address the various weaknesses in the institutional design of the current ombuds network in (predominantly) England and the rising accountability expectations that surround the operation of ombud schemes in the 21st century. Users, in particular, are increasingly vocal in demanding high service standards. The response to these pressures in each of the most recent ombudsman statutes in the devolved nations has been longer and more detailed foundational statutes (eg see Scotland (40 pages), Wales (62 pages) and Northern Ireland (60 pages)), and in the case of the PSO Bill a heightened emphasis on performance standards. The Bill, for instance, requires the PSO to issue a statement to the complainant if their matter is not completed within 12 months of receipt (cl.14(9)).
In the PSO Bill, the starkest example of a trend towards legislative rigour can be found in its provisions for accountability. The new PSO will now be subject to a triple layer of formal external accountability. First, it will continue to be subject to judicial and National Audit Office oversight, plus other legal requirements such as under the Freedom of Information Act. Second, Parliamentary scrutiny will remain, albeit intriguingly through the Public Accounts Commission rather than a specialised select committee on public administration, as is currently the case. Further, the nature of this accountability relationship is no longer left to the full discretion of the PSO and Parliament to establish over time, because the Bill creates a third layer of accountability – a ‘Board of the Public Service Ombudsman’ whose ‘principal duty is to provide staff and other resources’ (cl.3(2)).
The fashion towards corporate governance models within the public sector has been growing, with this Bill bearing some similarities with the Budget Responsibility and National Audit Act 2011 in its introduction of a permanently established Board to oversee a constitutional watchdog. The Board’s constitution and role are described in some detail in Schedule 2 and include a duty to ‘monitor the carrying out of the Ombudsman’s functions … with particular reference to the quality and efficiency of the service provided by the Ombudsman and the desirability of securing improvements in that service’ (Schedule 2, para. 23(1)). In turn, the Board must report to Parliament, including the submission of a triennial review (para.24(4)) and ‘a code of practice dealing with the relationship between the Ombudsman and the Board’ (Schedule 3, para.1(1)). Additionally, the Bill is much more prescriptive than earlier legislation on the information that must be supplied in the Annual Report of the office.
There is a debate to be had as to whether this structure of corporate governance is proportional for a body the size of the PSO, and concerns will be raised as to the clash of responsibility between Ombud and the Board, in particular its Chair, who is to be appointed in much the same way as the Ombud (Schedule 2, Part 2). If this Bill is passed, however, its contribution to resolving the ‘who guards the guardians’ question is likely to be its major legacy.
Limited moves towards raising complaints standards
The major innovation in the ombuds sector in recent times has been the introduction of a complaint standards role for the Scottish Public Services Ombudsman in the Public Services Reform (Scotland) Act 2010. That Act grants the ombud a number of powers to promote good complaint handling amongst service providers. The Bill, by contrast, only requires the PSO to ‘provide information, advice and training’ (cl.27). This is a step forward in terms of existing law on the PHSO, and mirrors the work already undertaken by the Local Government Ombudsman (LGO), one of the schemes being integrated into the new PSO. Other than the requirement of public authorities to ‘have regard to applicable information’ (cl.27(4)), however, there are not the powers in the Bill to demand information from public authorities or to publicise failings that are to be found in the Scottish model (and replicated in Northern Ireland and proposed in Wales). The Bill does make it a legal duty for authorities to inform users of their right to complain to an ombud (cl.28), although it does not make it a legal duty of those same authorities to consider complaints, as in the proposed Welsh Ombudsman bill (cl.34(2)).
The MP filter goes
Although MPs can still refer complaints on to the PSO, direct access for complainants to an ombud has finally been granted for all public-service complaints within jurisdiction in the UK (cl.5). This reform follows a long debate about the importance of the MP filter to Parliamentarians and the potential for the PSO to be swamped by complaints (eg see this PASC report, Time for a People’s Ombudsman Service, ch.4).
Further, enhanced flexibility on receipt of complaints is allowed in terms of form (ie cl.4 it is no longer necessary for complaints to be made in writing), and the facilitation of the referral of complaints from public authorities to the ombud, as already allowed for in the LGO scheme (Local Government Act 1974 s.26C), is translated across to all bodies under the jurisdiction of the PSO (cl.18).
The Bill largely follows existing legislative arrangements in conferring powers of investigation on the PSO but tweaks the powers in certain key respects. For instance, cl.4(6) allows for the re-opening or investigating afresh a complaint. This new provision could be a response to the situation that has arisen in cases such as Cavanagh, Miller and JR55, in which midway through an investigation the ombud has expanded the focus of the inquiry beyond the grounds of the original complaint due to discoveries made during the initial investigation. To avoid the questions of legality that have arisen in these cases, the cl.4(6) process outlines one way to proceed, and builds in fairness by requiring consultation with the relevant parties (cl.4(7)).
Alternatively, the Bill provides the PSO with another means to extend investigations beyond the initial complaint, a route that may be of particular use where there is evidence of systemic maladministration impacting a number of potential complainants. There has always been an element of sleight of hand in the means that ombud schemes, particularly the PHSO, have previously entered into systemic investigations, especially large-scale ones such as Equitable Life. Cl.13 confirms the legality of this practice by providing for the widening of an investigation after the complaint has been submitted (currently the LGO can rely on a similar clause, Local Government Act 1974, s.26D). Certain conditions have to be met to allow for the widening of the investigation, including that the ‘additional matter relates to facts which are the same, or substantially the same, as the facts to which the matter alleged in the complaint relates’ (cl.13(2)). For reasons of fairness we would recommend that the clause be amended to specify a duty of consultation as with cl.4(7).
As with UK practice generally, the grounds of investigation are not described in detail but are now universally held to include ‘failures in service’ and ‘failures to provide a service’, in addition to maladministration (cl.6(1)). This brings the current Parliamentary Ombudsman jurisdiction into line with the LGO and Health Service Ombudsman.
The criteria by which the PSO can investigate independent providers is rephrased under the Bill, with the investigation of independent health and social care providers dealt with specifically in cl.6(2). Other contracted-out services, however, are dealt with as including ‘any service which it was, at the relevant time, the authority’s function to provide’ (cl.6(2)(c)). This provision may need tightening further to avoid private bodies attempting to wriggle out of the PSO’s jurisdiction.
Another common area of confusion in past case law, the overlap of responsibility between different dispute resolution providers, is subtly shifted towards the PSO in the Bill. Cl.7 largely mirrors existing provisions, but the PSO is allowed to commence an investigation even if an alternative remedy has been pursued (cl.7(2)) and even if it has not been completed (cl.7(3)).
Recognition of the growth of a highly flexible model of investigation since the first UK ombuds legislation in 1967 is provided for in cl.10, with the PSO instructed to consider the procedure ‘best suited to enabling the complaint to be dealt with as fairly, quickly, efficiently and cost effectively as possible’ (cl.10(5)). In turn, a responsibility is placed upon the Ombud herself to publish a statement ‘setting out, in general terms, the procedures that the Ombudsman expects to follow in carrying out investigations’. This move towards both flexibility and transparency is a sensible and appropriate way forward and goes some ways towards recognising the concerns that have been expressed in recent years that the deformalisation of the ombuds process might lead to opaque justice.
The Bill says nothing about the nature of the remedies that the PSO can recommend. Under the old model of ombuds legislation this was the norm but, following the Supreme Court case of JR55 (for a commentary see here and here), this is an omission that needs rectification. JR55 concerned the legality of a Northern Irish Ombudsman’s recommendation of financial compensation, with the court ruling that he had no lawful power to make such a recommendation. The ruling is ambiguous at various key points and the relevant scheme has been abolished, but the reasoning in the judgment suggests that it would be wiser for the legislature to clarify in advance the nature of permissible remedies, particularly in the field of health complaints. The danger of not making this point explicit is that any later attempt to make a financial recommendation will be challenged in the courts.
As with most recent ombuds legislation, the Bill allows for a number of reporting requirements for the new PSO. Mirroring the practice that has evolved at the LGO, the PSO is required to produce a written statement whenever she decides (i) not to investigate; (ii) to discontinue investigation; or (iii) completes an investigation, including reasons. For the first time in UK ombuds legislation, the language of findings and recommendations is used to describe how completed reports should be presented, aping current practice and the ruling in Bradley. The ruling in that case is also confirmed, insofar as recommendations must be considered but not necessarily implemented (s.14(8)). However, the Bill is silent on the interpretation of law, confirmed in Gallagher, that the findings of the LGO are binding on an investigated authority. The reasons for this may be that the existing legal authority of ombuds findings varies depending on the scheme involved, with a weaker test applying to the PSO than the LGO. If and when this new Bill is enacted we can anticipate a fresh round of litigation revisiting this legal question unless the Bill is amended to clarify the point.
The PSO will have the power to issue a follow-up special statement when she is of the view that an identified injustice or hardship has not been remedied (cl.15), and this special statement may be further submitted to Parliament or to an elected local authority (cl.15(5)). This process mirrors current arrangements, but highlights another point, that at present the Bill does not contain a general requirement on authorities to notify the PSO when and how they have implemented the office’s recommendations. Although cl.15(2) provides for the PSO requesting such information under their discretion where recommendations are not implemented, this reporting duty should be a fundamental obligation on investigated authorities always – and further an overall performance statistic that should be reported on by the PSO on a regular basis as evidence of the effectiveness of the office. This oversight should be addressed when the Bill enters Parliament.
Additionally, under cl.16 the PSO will have the power to publish other reports which, as currently, will presumably capture broader lessons and insights from its investigatory work which are of public interest.
There is no specific reference in the Bill to the status of the existing Parliamentary Ombudsman’s jurisdiction over complaints against Whitehall-based bodies by constituents residing in Northern Ireland, Scotland and Wales, but all such complaints will be dealt with by the PSO provided they come within the office’s jurisdiction. An element of leeway is contained within cl.19, which allows for the PSO to enter into joint investigations with the devolved ombud schemes where there is jurisdictional overlap, an arrangement that has become a common and necessary feature of ombuds legislation.
Constitutionally, like its predecessors the PSO will remain an important independent watchdog, but will have considerably less autonomy due to the imposition of the Board. Also, one feature of the PSO’s future relationship is unclear: in those rare instances when the government resists the recommendations of the ombud, will the office be able to rely upon the support of Parliament as in years past? With the role of the relatively low-profile Public Accounts Commission so clearly defined as one of calling the PSO to account, it is unlikely it will switch to a support role when needed, and the PSO will have to look for assistance from a relevant subject committee and/or maintain a relationship with the Public Administration and Constitutional Affairs Committee.
Some residual uncertainty is inevitable and there is much to commend in the Bill. It serves as a template that could be expanded upon through the integration of other areas of public service, with provision already made for the transfer of social housing complaints at a later stage (cl.26), albeit that proposal is currently resisted in the housing sector. It may be that in the current context of austerity politics it is not realistic to load the new PSO with too many duties for lack of the realistic means to fulfil them. Nevertheless, the Bill is a classic product of Whitehall pragmatism and lacks a strong vision.
Compare, for instance, c.1(2) of the Bill:
‘The Ombudsman’s role is to investigate, on behalf of Parliament, complaints made by … members of the public ….’
With the Ombudsman Act (Queensland) 2001 s.5:
‘The objects of this Act are—
(a) to give people a timely, effective, independent and just way of having administrative actions of agencies investigated; and
(b) to improve the quality of decision-making and administrative practice in agencies.’
Why is it that we cannot make such a bold commitment to administrative justice?
About the authors:
Richard Kirkham is Senior Lecturer in Public Law, School of Law, University of Sheffield. Brian Thompson is Senior Lecturer, School of Law, University of Liverpool.