Developing an approach for consideration of human rights in casework

How do you develop a human rights approach to investigating complaints about public services? Here Jenny Strinati, Investigation Manager for the Public Services Ombudsman for Wales, explains the way her organisation is facing the challenge.

By Jenny Strinati

Background

Having been a slightly blurred part of ombuds work for many years, the spotlight has now been firmly placed on human rights with the Human Rights Based Approach (HRBA) recently developed by the Northern Ireland Public Services Ombudsman (NIPSO) and the Northern Ireland Human Rights Commission (NIHRC).

The work done by NIPSO and NIHRC has clarified absolutely that consideration of human rights is a legitimate matter for ombuds. NIPSO starts from the first of the Principles of Good Administration – ‘Acting in accordance with the law and with due regard for the rights of those concerned’ – where ‘rights’ include human rights and equality legislation.  NIPSO’s manual states: “Principles of Good Administration, FREDA values, ratified human rights instruments, and domestic Human Rights and equality laws together compromise the ‘narrative framework’ in which to judge public administration.”

NIPSO introduced the HRBA after an extensive development programme supported by funds from the International Ombudsman Institute. NIPSO and NIHRC worked jointly to produce the HRBA manual. NIHRC continues to be involved in an advisory capacity.

In Wales

The Government of Wales Act 2006 (s.81) provides that Welsh Ministers have no power to do anything that is incompatible with the ECHR (sometimes referred to as the inclusivity clause), and there is an expectation that welsh public bodies will consider human rights in the services they deliver.

Approach of the Public Services Ombudsman for Wales

At the Public Services Ombudsman for Wales (PSOW), the Northern Ireland model gave us cause to stop and think about our approach to human rights. Historically, we have found it challenging to consider HR in our casework. It can be daunting given the complex and multi-layered framework, and most staff lack confidence in the application of human rights although training has been provided from time to time.  Further, we have no additional resources for this work and no access to ‘specialists’.

Taking account of the barriers that face investigation staff in considering human rights, we designed a tool which aims to use FREDA[1] principles as a gateway into the Convention rights – the idea being that FREDA uses language which is familiar and more easily understood and applied. We are trialling use of this tool within one of the investigation teams (the investigation teams receive those cases that have been through an initial screening process and may be a candidate for formal investigation).  Investigators are asked to complete the form for each new case that is passed to them.  If completion of the form does not identify any potential human rights issues, the investigator proceeds with the case as they would do otherwise.  If potential issues are identified, the case is referred to the internal group we have set up – the ‘Human Rights Advice Group’.

The Group meets to discuss each of the cases referred to it. The aims of the Group are to:

• provide consistency in the way we identify, consider and address human rights issues
• establish a bar or threshold for those cases that merit human rights consideration and the indicators for that
• assess whether consideration of human rights is likely to add anything to a case beyond consideration of maladministration or service failure
• grow the knowledge and confidence of staff in dealing with human rights issues
• identify human rights issues at an early stage and thus give the authorities the opportunity to comment
• build in consideration of human rights throughout the investigation as an integral part of it
• provide an instant point of contact for investigators to discuss case related issues

Externally, the Equality and Human Rights Commission is undertaking a review of the services it provides and the way it can most effectively support access to justice for human rights and equalities problems and complaints. PSOW is represented on the working group for that project. Depending on the outcome of that, we hope to develop stronger links with the Commission.

We currently have a factsheet available on our website which sets out the broad considerations that PSOW will apply.

Reviewing the trial

The trial is in its early stages but will be subject to review shortly when it has been running for three months. Early signs are that this will be too soon to gain a proper sense of the effectiveness of the approach, and we will need to review more fully at six and twelve months.

Review mechanisms will include:

• questionnaire to staff about their experiences of the approach to date
• review of correspondence for consistency and clarity of human rights language
• dip sample cases that haven’t been referred to the Human Rights Advisory Group to ensure this was appropriate
• compare PSOW decisions issued under this process with those issued before in terms of (a) volume and (b) impact of outcome.

About the author:

Jenny Strinati is Investigation Manager for the Public Services Ombudsman for Wales

[1] Fairness, Respect, Equality, Dignity, Autonomy