The future of ombud reform
By Chris Gill (University of Glasgow) and Richard Kirkham (University of Sheffield)
On 28 January 2021, the Administrative Justice Council held a Webinar to consider how the ombudsman office could be further empowered to advance accountable government in the public interest. Each of the five leading public sector ombuds in the UK presented. A recording of the event can be viewed here. The following summarises the contributions.
The context for the event was twofold. First, last year, the lead arguments and proposals for legislative reform on the English-based public service ombuds (PSO) were brought together by ourselves in a collection, A Manifesto for Ombudsman Reform (Palgrave MacMillan, 2020). One of the main claims of the book was that the office needed stronger powers, in particular more power to pursue own initiative investigations. (See here for a short summary of the book). We wanted to test these arguments further.
Second, whilst in England the argument for a radical restructuring of the ombud’s office has yet to be won – in Northern Ireland, Scotland and Wales, a series of interesting developments have received the support of both the government and the legislature. In the UK, therefore, we now have genuine pioneers in the ombud sector, and we have recent developments that provide some clues as to how more can be made of the ombudsman office.
One of the main claims for a reformed English-based public service ombud (PSO) is that it should possess the powers to launch investigations even in the absence of a complaint being made (the so-called own-initiative power (OI)). Three of our speakers spoke directly to the operational reality of this power.
Nick Bennett and Beverly Allen from Public Services Ombudsman for Wales discussed that office’s recent launch of an OI investigation into homelessness, whilst Margaret Kelly, the Northern Ireland Public Services Ombudsman, provided some early insights as to the experience of her office undertaking the first OI Investigation in Northern Ireland (Personal Independent Payment, to be published shortly). Both presentations made clear the duty on the office to consult carefully before launching an OI investigation. This involved setting out the reasons for the proposed investigation and demonstrating how they comply with pre-publicised criteria on OI investigations. On the Welsh experience, a three stage process of consultation was explained, beginning with an initial engagement with a number of stakeholders on the most appropriate areas in which to launch an OI investigation, followed by the consultation on a formal proposal, before finally issuing a detailed investigation proposal that outlined the scope of the investigation and listed the public bodies to be investigated and why.
According to the presenters, in both Wales and Northern Ireland, this pre-investigation process appears to have been important in both designing the investigation’s terms of reference, and in securing the confidence of the public and the investigated public body in the use of such powers. In Northern Ireland, there had been some issues in persuading and educating public bodies of the legitimacy of their use of these new powers and that the office had succeeded in demonstrating that there was reasonable suspicion of systemic maladministration. However, the process of working with public bodies in setting up the investigation had also been useful in narrowing down the focus of the investigation, a feature that Margaret Kelly noted was important in ensuring the manageability of the project. Likewise, in Wales, the consultation process allowed the office to provide additional reassurances as to the extra workload that the investigation might cause local authorities already heavily impacted by the ramifications of dealing with Covid-19.
An advantage of the OI power from the Northern Ireland experience was that, when compared to an investigation restricted to the terms of an individual complaint, the office had received access to an increased body of information as a result of the broader powers. This allowed the office to elevate the level of scrutiny that could be achieved and identify more evidence, but it also made it easier to dismiss possible findings. A corollary of this enhanced access to information was that it required the office to construct a data impact assessment when dealing with personal data, where the individual had not previously been aware that such use would be made of their data.
On lessons learned, Margaret Kelly suggested that the process has challenged the office to handle more complaints as a result of the investigation and the extra publicity that it has brought the office. Additionally, she noted that due to the increase in the profile of the office, members of the public have looked to engage it in a range of matters, creating the need for the office to invest more time in educating people on what it can and cannot investigate.
The Northern Ireland experience also provided cause for the ombud to navigate working with other interested parties, such as the National Audit Office, but also internally across the office to ensure shared learning.
Rob Behrens (Parliamentary and Health Services Ombudsman) addressed the state of the debate about ombud reform of his office in the light of Covid. He argued that Covid had both buried the most recent ombud reform proposal (2016) and given the office an opportunity to demonstrate the capacity of the office even without further reform.
Rob Behrens cited a forthcoming publication of his office, which will detail the results of a survey on the response of 52 ombuds around the globe to the Covid pandemic. Using this work, he provided several examples of the powerful impact that an ombud can have through its investigations, recognising the power of OI investigations and the benefits of using a human rights approach to the office’s work. He also argued that regardless of the need for legislative reform in the UK, throughout the ombud community there were many shared issues that needed to be addressed. These included a relative lack of public understanding of the office, the challenge in meeting the expectations of the citizen, a lack of adequate resources, and problems of overlapping mandates.
Rob Behrens also urged us not to under-estimate the power of the current office, noting that in England it was ‘for some time to come, the only show in town’. It still produced powerful reports, was currently developing for the English NHS a Complaints Standard Framework, was building a mediation capacity for the office, and was raising the profile of the office and enhancing debates through Radio Ombudsman. He was currently considering, together with the Local Government and Social Care Ombudsman, publishing a thematic report comparing the experience of people looked after by the NHS and Social Care bodies during the pandemic. The office had also enhanced the skills of its investigators through the accreditation of case handlers.
Rob Behrens completed his paper with a plea for the sector to think boldly about the potential for the office looking into the future. This plea was picked up by the Local Government and Social Care Ombudsman, Mick King, who argued that the debate on ombud reform needed to return to connecting the work of the office with the shifting nature of public service delivery. He agreed that the project of incremental reform and maximising existing powers needed to be persisted with in the short term. In support of that agenda, he cited two small but hugely influential statutory powers that had been introduced as minor amendments in non-ombudsman legislation. Through these amendments, the LGSCO now has investigatory power over private sector social care (Health Act 2009 (c. 21), s. 35), and can expand an investigation beyond the scope of the original complaint – a power he described as ‘own-initiative lite’ (see Local Government and Public Involvement in Health Act 2007 (c. 28), ss. 174(1)).
However, Mick King also challenged us to reflect on why existing proposals had not gained traction and to transcend the internal debate within the sector to factor in more the external political landscape within which we work. On existing reform proposals, the constitutional dilemmas posed by devolution had still not been resolved. Perhaps the scale of the potential new office was simply too big to risk. And above all, was there sufficient political appetite for reform, particularly of this kind?
In reflecting on these concerns, Mick King mused whether the recent Government White Paper on Social Housing might offer the better way forward, in that reform was being designed in line with the direction of Government thinking. Along these lines, perhaps the focus would be best placed on the increasing importance of local services. In recent times, there has been a move to devolve power to large unitary councils, the establishment of mayors and there is an anticipation of further devolution to come. Rather than a centralised ombudsman service, perhaps the model should be to devolve ombudsman offices to operate as independent accountability agents alongside more powerful local authorities and mayors. This network of local ombuds could then be deployed as a college of ombuds, as was originally conceived back in 1974 when the local government ombudsman scheme was first introduced.
Rosemary Agnew (Scottish Public Services Ombudsman) concluded the session by considering the evolution of administrative justice in Scotland. Whilst the developments of the past couple of decades have generally been positive for the office, she noted some concerns with recent proposals that mooted the creation of new regulatory and complaints schemes in Scotland. The risk was that these might confuse and add complexity to the administrative justice landscape in Scotland. At the same time, further reforms of the ombud office in Scotland had stalled but work continued on promoting the idea of granting the office new OI powers. The current approach of the office is to engage heavily in consultation calls on various policy issues, particularly those by Parliament, to highlight the contribution that the office could make to wider policy goals if it were granted stronger powers.
Rosemary Agnew also noted that Covid had provided some very powerful examples of where OI powers would have been useful. She gave the example of NHS Scotland’s recent approach towards obtaining consent on resuscitating patients, an area where there had been concern expressed in the medical profession. Prisoners too have been particularly impacted during Covid, as they do not have access to email to raise complaints.
Finally, she highlighted the likely medium term challenges to securing reform. In Scotland the most evident were the potential for the independence debate and the call for a referendum to close down the room for this agenda and the potential budgetary implications of brexit, which may lead to the reallocation of resources away from the administrative justice sector.
In summary, the event highlighted the shifting nature of administrative justice in the ombud sector. Each of the speakers detailed the challenges to the institution posed by the current environment, not least by the Covid pandemic, but each also offered forward solutions and ideas through which the influence of the ombud office on public services accountability could be enhanced.