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Consultations, Health, Ombuds and reviewers, UK Parliament

The draft Public Service Ombudsman Bill: What recommendations are being taken forward?

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.

UKAJI is publishing a series of pieces on the draft Bill, from a range of contributors and perspectives. The initial post, by Richard Kirkham and Brian Thompson, asked whether the changes in the draft legislation constitute significant reform. In this second post, Gavin McBurnie compares the recommendations for reform made by the UK Parliament and the PHSO with the proposals in the draft Bill.

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By Gavin McBurnie

With the publication of the draft Public Services Ombudsman Bill in December 2016, the recommendations made by the former Public Administration Select Committee (PASC) have come to fruition. As well as the PASC, the Parliamentary and Health Service Ombudsman (PHSO) has long been arguing for ombuds reform. This blog post looks at the recommendations of both PASC and the PHSO and whether the Government has accepted them.

Columns 1 and 2 in Table 1 below list the recommendations for ombuds reform made by the two bodies, while column 3 details whether or not each recommendation is contained within the draft Bill.

Table 1: Recommendations by PASC and PHSO, and inclusion in the draft Bill

REC No. PASC PHSO Included in the draft Bill?
1 Enable easier access: remove MP filter; allow flexibility in way complaint submitted Enable easier access: remove MP filter; allow flexibility in way complaint submitted Included in Bill
2 Allow own-initiative powers Allow own-initiative powers Not in Bill but ability to widen an investigation is given
3 Enable publication of reports without need to lay in Parliament Enable publication of reports without need to lay in Parliament Still required to lay reports before Parliament
4 Consult on which public services to include but suggests PHSO, Local Government Ombudsman (LGO) and Housing Ombudsman (HO) All public services Only PHSO and LGO but option to include HO at a later date
5 Dealing with complaints concerning non-devolved public services. Two options: A single combined ombud covering both English public services and public services accountable to the Westminster Parliament. OR, two separate ombuds offices. A single combined ombud covering English public services and public services accountable to the Westminster Parliament. A single combined ombud covering English public services and public services accountable to the Westminster Parliament.
6 Accountability: The Public Accounts Commission to be responsible for scrutiny of the PSO performance while PASC (now PACAC) should retain responsibility for reports produced by the PSO Revised governance structure to include appointed chair and Board. Parliament responsible for scrutiny of performance Accountability: The Public Accounts Commission to be responsible form scrutiny of PSO performance while PASC (now PACAC) retain responsibility for reports produced by the PSO.

 

In addition, a revised governance structure to include appointed chair and Board.

7 Oversight of complaint handling Oversight of complaint handling
8 Revision of rules concerning alternative legal remedy Slight changes but not what PHSO asked for.
9 Increased information sharing powers No significant change

Own-initiative powers

Both the PASC and the PHSO wanted the new PSO to be able to conduct own-initiative investigations – that is, investigations where the PSO may have concerns but has not yet received a complaint. This would have brought the PSO to a position comparable with most other ombuds offices. It is disappointing that the Government has not agreed to give the PSO such powers, its view being that the use of such powers by the PSO would detract from its ‘citizen defender’ role (Cabinet Office, 2015, p.18).

By reaching this decision the Government chose not to act upon the evidence considered by the PASC which indicated that offices with these powers did not overuse them, as the circumstances calling for use of such powers represent a small part of their workload (PASC, 2014, para 65-72).

While the ability to widen a complaint received by the PSO to cover other matters that come to the attention of the ombud during an ongoing investigation is welcome (Cabinet Office, 2016, Cl 13), this power comes with four conditions that all have to be met. The ability to interpret them generously will determine whether this power is real or not. Assuming that the new PSO is able to interpret the conditions generously, then this could be a major extension to ombuds’ powers in England, as an ombud with strong external links should be able to generate the necessary initial complaint which then justifies the wider look.

Complaints and devolved administrations

One of the key issues arising from the draft Bill is the relationship between the new PSO and the ombudsmen of the devolved administrations. The Government’s view is that ‘it should be as simple as possible for all UK citizens to pursue a complaint’ and it would make provision that enables the PSO to develop strong relationships with ombudsmen from the devolved administrations ‘with a view to creating a “no wrong door” approach’ (Cabinet Office, 2015, p.8).

The answer to a ‘no wrong door’ approach is to have only one door. A resident from any of the four constituent nations in the UK should be able to complain to their local public service ombud service, with the respective ombud reporting to the relevant Parliament(s). It is known that if complainants face blocks while pursuing a complaint many will give up, so why make it more complicated for them? Public-sector bureaucracies would undoubtedly be able to deal with four different ombuds offices. The existing public sector ombuds in the UK already have fora through which issues of common interest can be discussed. This could be a mechanism through which common approaches could be agreed, reducing the risk of inconsistency in approach.

There is also a concern that if different offices are involved then inconsistent decisions may be reached. Consistent decisions are reached through good ombuds practice.

The decision that should be reached in any complaint is the one that best meets the facts of the case. Sometimes decisions can be finely balanced, but these will occur within an ombud office as much as across offices.

What needs to be resolved is that the draft Bill, as currently written (Cabinet Office, 2016, Cl 19), provides discretion to the new PSO as to whether it should pass details to another ombudsman of a complaint it receives that is within the jurisdiction of that other ombudsman. If a ‘no wrong door’ approach is to be implemented, then that discretion should be removed and instead a requirement should be placed upon the PSO to pass complaints over to the correct ombudsman, subject to consent from the complainant being secured.

Role of the ombud

There is one particular area that is disappointing. The draft Bill states that the role of the Public Service Ombud is to investigate complaints (Cabinet Office, 2016 Cl1(2)). This is not surprising, as the Government has previously stated that it saw the role of the ombud is to put things right for individual citizens through consideration of their complaints. This is not a new debate. It was perhaps best put by the NSW Senate Standing Committee on Finance and Public Administration, almost 25 years ago, who questioned whether the role of the ombud was to ‘swat flies or to hunt lions’ before deciding that it was to ‘swat flies’ (1992). It seems the UK Government still believes that an ombud’s role is to swat flies.

It seems the UK Government still believes that an ombud’s role is to swat flies.

This represents a rather old-fashioned view of ombudsmanry. It was Colin Neave (the current Australian Commonwealth Ombudsman) who, when considering the role of the modern ombuds, said:

‘There are some people, both in government and the community, who think that all the Ombudsman does is handle complaints. … This is a narrow view and it falls dramatically short. In fact, it is a very old-fashioned notion. …  In reality, we [Ombudsmen] are leaders in building better public administration whereby an ombudsman is involved in the resolution of complaints, giving a voice to the ‘citizen’, investigating systemic complaints and in the overall improvement of public services.’ (Neave 2014)

Kirkham discusses this changing role where he talks of the ombuds community paying increased attention to identifying administrative deficiencies and recommending procedural and even legislative and policy reform (Kirkham 2005). Gill (2011) picks up this argument that ombudsmen have more than a complaint-handling function. He states that ‘ombudsmen are now expected to do more to drive improvements in administrative decision-making’.

Kirkham discusses this changing role where he talks of the ombuds community paying increased attention to identifying administrative deficiencies and recommending procedural and even legislative and policy reform (Kirkham 2005). Gill (2011) picks up this argument that ombudsmen have more than a complaint-handling function. He states that ‘ombudsmen are now expected to do more to drive improvements in administrative decision-making’.

While the new ombud can lay special themed reports (as the PHSO does currently), this deliberate constraining of an ombud’s role is disappointing when Parliamentary time and interest in ombudsmanry is historically quite low and not likely to be on the Parliamentary agenda for some time into the future. It seems to represent either a lack of ambition or an unwillingness for the ombud model to develop its role within the administrative justice system.

Justice is about remedying injustice and that will not occur if bodies can reject findings and recommendations.

It has been highlighted that the Bill is silent on whether the ombud’s findings are binding on bodies (Kirkham and Thomson, 2016). This is not an accident. The Government, in its response to the consultation, declared ‘We will not make the findings of PSO binding’ (Cabinet Office, 2015, p.18). This is potentially an extremely worrying development. Until now PHSO’s findings have to be accepted unless they can be shown to be wrong, although there is only a moral obligation to accept its recommendations. But the Government is now saying that bodies do not need to accept the ombud’s findings. This is a regressive move which undermines the ombud’s ability to deliver justice. If a body is able to reject the findings of an ombud (as a sizeable number may like to do), then where does that leave the complainant and the ombud service? Justice is about remedying injustice and that will not occur if bodies can reject findings and recommendations. The status quo is sensible, and the Bill should be amended to maintain that.

And finally…

The draft Bill states (Schedule 2 Part 4 14(3)): ‘A person may not be employed by the Board [of the PSO] if the person is employed by, or is an officer of, a designated authority’. Presumably the intention is to avoid conflicts of interest, but this raises a practical problem for the PSO as health services are designated authorities. A large proportion of complaints considered by the PHSO relate to clinical issues. When investigating such complaints, the PHSO will take advice from clinical advisers, some of whom are employees of both the PHSO and the NHS. As the draft Bill stands, the PSO will not be able to continue with such arrangements. It will therefore need to procure clinical advice from alternative sources or by alternative means. This can only create problems for the new body.

Research implications

Assuming that the draft Bill is passed by Parliament unchanged, there will be a range of issues that should be researched. How well do the arrangements work for complainants not resident in England when raising complaints against public bodies accountable to the Westminster Parliament? Has the new PSO been able to take advantage of its ability to widen investigations, thus improving public administration? Arguably, of prime importance is how will the ability of bodies to reject the findings reached by the PSO play out in practice, and what will the implications of this be for administrative justice?

 

About the author:

Gavin McBurnie is a PhD student and lecturer in dispute resolution at Queen Margaret University. He previously worked at the PHSO.

 


References
Cabinet Office (2015), A Public Service Ombudsman: Government Response to Consultation [online] [Viewed 22 December 2016]. Available from  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486797/PSO_-_Consultation_Response_-_Final.pdf
Cabinet Office (2016), Draft Public Services Ombudsman Bill [online] [Viewed 22 December 2016]. Available from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/575921/draft_public_service_ombudsman_bill_web_version_december_2016.pdf
Gill C. (2011), ‘Right first time: the role of ombudsmen in influencing administrative decision making’, Journal of Social Welfare and Family Law, 33(2) 181-192
Kirkham R. (2005), ‘Auditing by stealth? Special reports and the Ombudsman’, Public Law, 4, 740-748
Kirkham R. and Thompson, B. (2016), An initial commentary on the draft public services ombuds bill [online] [Viewed 22 December 2016]. Available from  https://ukaji.org/2016/12/20/an-initial-commentary-on-the-draft-public-services-ombuds-bill/
Leave, C. (2014), ‘Exploring the role of the Commonwealth Ombudsman in relation to Parliament, Senate Occasional Lecture’, [viewed 15 March 2015]. Available from http://www.ombudsman.gov.au/files/Speech_Colin_Neave_Senate_28_Nov_14.pdf
PASC (2014), Time for a People’ Ombudsman Service, London: The Stationery Office
PHSO (2014), Further written evidence to the Public Administration Select Committee on Parliament’s Ombudsman Service, [online] [Viewed 21 December 2016]. Available from  http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/public-administration-committee/parliaments-ombudsman-service/written/5904.html
Senate Standing Committee on Finance and Public Administration (1992), ‘Review of the Office of the Commonwealth Ombudsman’ (Parl Paper 519/1992)

 

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