Ombudsmen (L17/18)

Question 1

What did the Whyatt Report 1961 achieve?

Answer 1

Recommended the adoption of an ombudsman in the UK.
Designed as an additional remedy.

Question 2

How were the ombudsman fit into the UK system?

Answer 2

Institution foreign to our constitution.
New Zealand (1962) showed it could be adapted to Westminster model.
Styled “commissioner” rather than “ombudsman”.
Sold as “cutting edge” for MPs (concern to maintain Parliamentary grievance handling function).
Acknowledgment today that ombudsman is an important part of constitution, but debate about where exactly sits.

Question 3

What is an ombusdman?

Answer 3

An ombudsman is:
An independent official with responsibility for investigating complaints of ‘injustice’ caused by ‘maladministration’ and making recommendations to resolve them;
A hybrid between political and legal forms of accountability.
Responsible for finding all the facts, etc.

Question 4

What is the role and function of an ombudsman?

Answer 4

Non-curial (non-court-based) means of securing administrative justice.
Function.
Resolve grievances, secure redress.
Improve decision-making – prevent future instances of similar maladministration, address systemic problems.

Question 5

In Scotland who can complaints about maladministration by government agencies be made to?

Answer 5

Parliamentary Ombudsman – Parliamentary Commissioner Act 1967.
Scottish Public Services Ombudsman – Scottish Public Services Ombudsman Act 2002.

Question 6

How do the SPSO and PO differ in their accessibility to public complaints?

Answer 6

‘MP’ filter for complaints to PO (s6(3) PCA 1967).
Direct access for complaints to SPSO (s9 SPSOA 2002).

Question 7

What matters can the PO and SPSO investigate?

Answer 7

‘Injustice in consequence of maladministration’ (s5, PCA 67).
Injustice or hardship as a result of maladministration or service failure (s5 SPSOA 2002).

Question 8

How do you determine if the ombudsman CAN investigate?

Answer 8

Was the complaint duly made?
Does it relate to an injustice sustained by maladministration?
Is the body within the jurisdiction of the ombudsman?
Is it an excluded matter?
Both Acts have a section of exclusions.
- E.g. complaints about internal management of schools.

Question 9

How do you determine if the ombudsman WILL investigate?

Answer 9

If other remedies available, is it unreasonable to expect the complainant to resort to them? (PCA 1967, s5(2); SPSO 2002, s710).

Question 10

What are the last steps to the ombudsman process?

Answer 10

Did maladministration occur?
Did maladministration cause injustice?
Has the public body accepted the findings?
If not, Ombudsman may issue a special report.
Also, may seek JR of government’s decision.

Question 11

How has the ombudsman process progressed?

Answer 11

Traditional process: investigate & report.
‘Modern purpose’: resolve by any means necessary; M Seneviratne, Ombudsmen: Public Services and Administrative Justice (London, 2002).

Practice on the ground is changing and unclear:
Unclear and inconsistent terminology.
Unclear criteria for deciding on investigation / resolution.
Unclear description of processes.
Inconsistent publication practices.
See V Bondy, M Doyle, C Hirst, The Use of Informal Resolution by Ombudsmen, (London, 2014).

Question 12

What does ‘maladministration causing injustice’ actually mean?

Answer 12

Not defined in legislation.
But – cannot question the merits of a decision taken without maladministration (PCS 1967, s12(3), SPSOA 2002, s7(1)).

Maladministration concerned with process, not merits.

Goes beyond strict legality c.f. R (Association of British Civilian Internees: Far Eastern Region) v Secretary of State for Defence (2003) & PHSO Debt of Honour case.
- Was there a legitimate expectation as to how to government would compensate those interned in the far east during the war?
- Court found no legitimate expectation so no legal wrong.
- Ombudsman found there was maladministration due to poor communication leading to confusion then injustice.

Question 13

What examples does the Crossman catalogue give of maladministration?

Answer 13

Things which could be maladministration.
“Bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.” (Richard Crossman MP, 10 October 1996, Hansard HC Deb, vol 734, col, 51).

Question 14

What are the Principles of Good Administration, Parliamentary and Health Services Ombudsman, 2009?

Answer 14

1. Getting it right.
2. Being customer focused.
3. Being open and accountable.
4. Acting fairly and proportionately.
5. Putting things right.
6. Seeking continuous improvement.

Question 15

What does ‘injustice’ cover?

Answer 15

In the Ombudsman context, ‘injustice’ covers
‘not merely injury redressible in a court of law, but also the “sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss.’

This means that the “defence familiar in legal proceedings that because the outcome would have been the same in any event there has been no redressible wrong, does not run in an investigation by the [Ombudsman].” (Sedley J. R v Parliamentary Commissioner for Administration, ex p Balchin (No.1) [1997] JPL 917, 926).

Question 16

What are the requirements for the investigation being carried out?

Answer 16

PCA 1967, s7; SPSOA 2002, s12.
Private.
Public authority to have opportunity to comment.
Otherwise, Ombudsman determines procedure.

Question 17

What if the public authority obstructs the investigation?

Answer 17

PCA 1967, s9; SPSOA 2002, s14.
If without lawful excuse public authority obstructs investigation, ombudsman can refer matter to court, and the court may inquire into the matter – failing to cooperate is the equivalent of contempt of court.

Question 18

What are the political process requirements for the ombudsman?

Answer 18

Individual reports (PCA 1967, s10; SPSOA 2002, s15).

Annual reports laid before Parliament (PCA 1967, s10; SPSOA 2002, ‘special reports’, s16).
- E.g. Equitable Life (2007-2008).

Question 19

What is the legal effect of the ombudsman?

Answer 19

Reports not legally binding (see discussion in R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin)).
Distinction between the findings of an ombudsman (carries legal weight) and the recommendations of an ombudsman (no legal weight).
Unlawful to reject the findings, but not unlawful not to follow the recommendations.
In this case, dismissed the findings. Court said to dismiss the findings, cogent reasons must be provided, if not, the decision to reject findings is open to judicial review.

Question 20

What is the PO’s relationship with judicial review?

Answer 20

Should normally decline jurisdiction if complainant has ‘suitable’ alternative remedy.

But: overlap between maladministration and illegality;
Ombudsman’s decisions may be subject to judicial review (R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621).

Positive or negative impact? See e.g, R (Bradley) v Department for Work and Pensions [2007] EWHC 242 (Admin).
Judicialisation would be largely negative
Can take away from the whole purpose of ombudsmen (non-curial, being a hybrid process, cooperating with public bodies).

Question 21

The ombudsman have a contested constitutional role. What does it mean to say they are a parliamentary adjunct?

Answer 21

There to support parliamentarians in their grievance handling function.
Also ensuring the government is held to account. Informing parliament of what is going wrong.

Question 22

The ombudsman have a contested constitutional role. What does it mean to say they are a justice system “add on”?

Answer 22

Dealing with lots of small complaints which could be seen as some kind of small claims court.
In practice, it has not always been the case that the ombudsmen and parliament have had a strong relationship. Not always shown that the ombudsman’s work has supported the role of parliament.

Question 23

The ombudsman have a contested constitutional role. What does it mean to say they are a managerial mechanism of executive quality control?

Answer 23

View that the ombudsman has become a means of self-control. Much less an independent aid to parliamentarians, or an add-on to the justice system, and is more to get the ombudsmen to serve the managerial needs of parliament.
A vehicle for learning in government.

Question 24

The ombudsman have a contested constitutional role. What does it mean to say they are an “integrity branch” of government?

Answer 24

Idea taken from Australia.
Various independent organisations which are designed to scrutinise and hold the government to account.

Question 25

What is the Parliamentary Commissioner for Administration (PCA)’s relationship to parliament?

Answer 25

Strong relationship to parliament (MP filter + PACAC).

MP filter = requirement that a complaint has to be made to the MP before it can be accepted by the ombudsman.

Public Administration and Constitutional Affairs Committee. Can call the secretary to explain why they haven’t implemented the ombudsman’s recommendations.

Question 26

What is the Scottish Public Service Ombudsman (SPSO)’s relationship to parliament?

Answer 26

Weak relationship to parliament.

No MP filter (or MSP filter) because it would complicate things.

Question 27

What is the Local Government and Social Care Ombudsman (LGSCO)’s relationship to parliament?

Answer 27

Weak relationship + questions of democratic legitimacy.

Only in England.

Question 28

What does the reality of the ombudsmen’s relationships to parliament raise questions about?

Answer 28

Raise questions about ombudsman as a form of political redress and what its role is in informing parliamentary scrutiny of government action.

Question 29

How has the ombudsman process been changed and what concerns does this raise?

Answer 29

Ombudsman adapted to provide “resolution” rather than “investigation and reporting”.

Concerns about transparency and the statutory basis for this shift.

Proportionality and informality – what are the advantages and disadvantages?

Potential issues: consistency, public understanding and expectations, loss of opportunities for learning and systemic change, perception of cheap justice.

Question 30

What are the issues surrounding accessibility of the ombudsmen?

Answer 30

Ombudsman supposed to be a remedy that expands access to justice.
But typical complainant white, over 60 and male.
Some groups including ethnic minorities, young people and disabled people are underrepresented.

“Matthew effect”.
Ombudsman as a consumerist device that diverts attention to those who are already more privileged and able to look after their own interests.
Ombudsman may not only be missing a huge chunk of society but be part of actively diverting resources away from them.

Question 31

What is role plurality and what are its pros and cons?

Answer 31

SPSO taking on new roles: complaints standards authority, review of the Scottish Welfare Fund, learning and improvement unit, NHS whistleblowing.

Makes sense for government to rationalise independent oversight functions.

But… does the ombudsman take eye off the ball? Does public understanding diminish? Do “systemic” issues overtake individual redress? Does the relationship with government and stakeholders change?

Question 32

What is the firefighter, firewatcher, fire preventer argument in terms of the ombudsman’s role?

Answer 32

Would be better if, instead of putting out individual fires (firefighter), systematically go out and put out the big fires (firewatcher).
Make sure government is learning, not just scanning for issues. Getting in and sorting things BEFORE there is an issue to report (fire preventor).

Question 33

Why should the ombudsmen become more of a regulator than an investigator?

Answer 33

Made sure that first tier complaints processes are working effectively, and if not, then get involved and investigate it itself.

Question 34

What is the debate that the ombudsmen should become a human rights defender?

Answer 34

Use human rights as a way to investigate, and as a benchmark as to whether people have suffered maladministration.

This is not normally the approach used, but is adopted in France and Northern Ireland etc.
May be controversial.

Question 35

How are ombudsmen held accountable?

Answer 35

Ombudsman is accountable to court via JR and to Parliament via annual scrutiny processes.
You can challenge the WAY the decision is made.
Also accountable through audit and scrutiny committees, service complaint reviewers, Ombudsman Association membership, peer reviews.

But, high profile failings (SPSO 2009, LGSCO 2013, PHSO 2018).

Are current accountability mechanisms sufficient and appropriate? How to maintain the balance between accountability and independence?

Question 36

What is the new whistle-blowing role of ombudsmen in Scotland and what issues may it cause?

Answer 36

Different from usual ombudsman roles.
Whistle-blowing complaints from staff/public.
Brings difficult cases, may change the relationship between ombudsman and public bodies.

Question 37

How have ombudsmen been reformed in Scotland vs England?

Answer 37

Devolved ombudsman innovations:
One stop shop. Complaint standards authority. Role plurality. Human rights approaches (NI). Own initiative investigation (NI and Wales).

UK/ England ombudsman – “stuck in aspic” since 1967. Multiple failed reform processes (2000 Colcut review, Law Commission 2008-2010, Gordon Review 2014).

Question 38

What does the Public Services Ombudsman Draft Bill (2016) propose to reform?

Answer 38

No own initiative powers.
Encouragement of good practice.
Revised corporate governance.
Limited integration.

Question 39

What were the ombudsman reforms suggested in Kirkham and Gill’s ‘A manifesto for ombudsman reform’?

Answer 39

Principle 1 is that the new PSO must have a bolder role in the administrative justice system.
Principle 2 is that there should be a presumption for the PSO having an integrated jurisdiction over all English public services, while respecting the UK’s devolution settlement.
Principle 3 is that the PSO must have a broad range of powers, reflective of those granted to PSOs in other jurisdictions.
Principle 4 is that the new PSO must report on how it engages with citizens and on the delivery of administrative justice.
Principle 5 is that the PSO must be subject to multiple accountability routes to ensure that a bolder role and new powers are used appropriately.

Question 40

Why are ombudsmen valuable?

Answer 40

Additional protections (legality +).
- Provides a more comprehensive and flexible approach.
Provides 1000s of remedies a year.
Makes 1000s of recommendations.
Increasing focus on internal complaints procedures.
Informing Parliament and other stakeholders.
Ability to respond flexibly to changing administrative environment.
Clear evidence from annual reports of impact