By Dr Nick O’Brien
In 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. This review explores what research has been carried out on public-sector ombuds in the UK. It has been commissioned by the UK Administrative Justice Institute to identify what we know and don’t know about this important strand of administrative justice in order to inform current consideration of the draft Bill. Here we publish the introduction to the review; the full review is available below.
Issues: What do we need to know?
The Public Services Ombudsman (PSO) Bill 2016 aims to re-design the system of redress provided by public-sector ombuds in England. Research on the design of redress systems in general for public bodies (Bondy and Le Sueur 2012), and more specifically for the public-sector ombuds in England (Kirkham and Martin 2014), yields from the draft PSO Bill the following key issues, in summary:
- Will the PSO be able to offer effective pathways and remedies for addressing grievances (e.g. public awareness; direct, flexible and integrated access; integrated and comprehensive scope and coverage; appropriate investigative and resolution technique; enforceable and appropriate remedy)?
- Will the PSO be able to contribute sufficiently to improvement in public services (e.g. own-initiative investigation; systemic recommendation; ‘complaints design authority’ remit; effective part of integrated democratic-scrutiny system)?
- Will the PSO be able to act in accordance with appropriate norms, including constitutional and human rights norms (e.g. human rights mandate; ECHR Art 6 compliance; constitutional mandate)?
- Will the PSO be sufficiently accountable, without compromise of its independence and ‘personal mandate’ (e.g. to a unified Board; to Parliament; to users)?
- Will the PSO offer value for money (e.g. cost; impact)?
Summary of conclusions
- Public-sector ombuds in England play a modest role in individual dispute resolution.
- Given the structure of the administrative justice and relevant ‘regulatory’ system as a whole, it is unlikely that re-design of the ombuds will in itself remedy such marginalisation.
- The migration of emphasis towards systemic remedy and broader public benefit is therefore understandable and justifiable.
- Current impact and value for money in any event remain difficult to gauge.
- However, the lack of a full suite of appropriate powers and ‘norms’ seriously diminishes the prospect of future strategic impact in this regard.
- The relatively thin empirical and comparative evidential foundation for future policy development currently diminishes the prospect of effective reform or even successful re-imagination within existing legislative limits.
- Features specific to the ombud sector make such research difficult and unattractive to undertake, especially in respect of primary sources, such as ombud case files.
- Nevertheless, existing gaps should be remedied as far as possible in respect of: knowledge about public awareness; complainant profile; the role of the ombud in ‘the system’ as a whole; real cost and impact; the exercise of the ombud ‘technique’; what works well in other comparable jurisdictions; and the engagement of public authorities and of the legislature with the ombud.
The full review is available here and below.
About the author:
Nick O’Brien is Honorary Research Fellow, Liverpool University, and the co-author, with Mary Seneviratne, of Ombudsmen at the Crossroads (Palgrave McMillan, 2017).
This website has invited “experts” to discuss the remit and laws behind The Parliamentary Health Service Ombudsman; but I have yet to read any evidence in the blogs, published articles and books that demonstrate that the so called “experts” and academics have any genuine insight and understanding as to how the Ombudsman legislation impacts on a UK citizen?
Three years after founding the only PHSO Pressure Group as a Volunteer, Della Reynolds had enough feedback and evidence to prove without doubt that the legislation behind the Ombudsman was Corrupt By Design.
On 23rd February 2016, the Volunteer organised and funded a meeting at The Houses of Parliament, inviting Members of Parliament to best review the legislation behind the Ombudsman. I attended that meeting with other victims and a poorly attended smattering of MPs who represented the so called “Scrutiny” Committee for reviewing whether the Ombudsman was value for money.
Dr Richard Kirkham was the key note speaker and the event was titled “BETTER TO SERVE THE PUBLIC”; proposals to restructure, reform, renew and reinvigorate Public Service Ombudsman.
I invite Dr Nick O’Brien to accept the founder of the PHSO Pressure Group’s offer to view some case files ….
Thanks for your comment here. We welcome insights and contributions from a range of stakeholders, and we consider expertise rests in many places. We have had, and continue to welcome, contributions from Della Reynolds and others and we hope this engagement will continue. Although we do not agree with your assertion that the legislation behind the ombud is ‘corrupt by design’ and are concerned about the use of this expression, we agree with you that there is a need for more empirical research on the perspectives and experiences of those who use the administrative justice system, including ombuds, and that any reform must take account of all the evidence and insights. In our Research Roadmap we set out what we consider to be some of the opportunities but also challenges of conducting empirical research in the current context, including funding of research projects to develop an evidence base. There is a widely recognised need to engage users and decision-makers in taking research forward.
The simple truth is that no-one wants to accept that their government would deliberately set up a body to deliver injustice and protect the powerful. Any such body, unless this was its stated purpose, would be corrupt. The Lords debate regarding the 1967 Parliamentary Commissioner Bill is quite revealing and exposes some of the limitations deliberately included in the bill to effectively prevent citizen redress. At 4.7pm Lord Wade explains that the Commissioner had been described in the press as the ‘Ombudsmouse’ so limited were its powers of enforcement. At 3.49 Lord Harlech eloquently describes the way in which the undefined ‘maladministration’ model would prevent many citizens from receiving investigations into injustices served against them and provide a bureaucratic loophole when considered against ‘the exercise of discretion’ as quoted below.
“But, my Lords, let us look for a moment at those Departments listed in Schedule 2 which do have a more direct and frequent impact on the lives of the general public. To what extent does the Bill provide a means of redress of grievance by the general public? It seems to me that it would depend very much on how we define and interpret the word “maladministration”. I think that the noble and learned Lord conceded that this was a point of difficulty. Certainly this was a point which gave rise to long debate in another place without, it seemed to me, anyone being very much wiser at the end of it. Speaking for myself, I should be immensely grateful if we could be given, first, a simple example of a grievance likely to be submitted by an individual for investigation by the Parliamentary Commissioner; secondly, an explanation as to in what respect the action complained of might be due to maladministration and, thirdly, even if it was due to maladministration, how it could be determined that this was not due to the exercise of a discretion vested in the department or authority”. I have taken those words, of course, from Clause 5(4) a subsection which, as the noble and learned Lord said, was inserted by the Government at a late stage in the passage of the Bill through another place, and which seems to me to give the Bureaucracy a loophole as large as the Round Tower of Windsor. If it is not the case, I, for one, should be most grateful to have it explained to me.
Similarly, the need to investigate in secret which has been interpreted by the Ombudsman as secret until the final (and binding) report has been published. This prevents all transparency regarding the investigation process until it is too late. Plus the total discretion of the Ombudsman which makes it virtually unaccountable under the law with parliament preventing the scrutiny body from examining individual complaints allowing the Ombudsman to act with impunity, denying valid evidence and constructing a narrative which is not supported by the facts. These elements are not by accident but by design. This body is corrupt by design and tinkering at the edges of a corrupt model will make no difference to service delivery.
PHSOtheFACTS members have plenty of case files ready for academic research. Just say the word.