Select Committee on Public Administration Minutes of Evidence

Examination of witnesses (Questions 1 - 19)




  1. It is the great pleasure of the Committee to welcome the Ombudsman and his colleagues this afternoon. I am sorry the Committee is a little depleted for a number of reasons. One is that the Leader of the Opposition is just giving a rallying call to his party and those that feel they need that advantage have gone to experience it. I am sorry for that. Nevertheless we are very pleased to have you here. I think we are going to discuss, first of all, your Parliamentary Ombudsman Report for 1999-2000 and then we are going to look at your Health Service Ombudsman's Report. We know you wear many hats when you come in front of us. As well as Mr Buckley himself, can I welcome Mr Alan Watson, who is Deputy Parliamentary Ombudsman. Now, Mr Buckley, would you like to kick off perhaps on the Ombudsman side to start with?
  (Mr Buckley) Certainly, Chairman, thank you. I will begin, if I may with a short statement on the Parliamentary side, since you wish to start there and later, if that is acceptable, I will make a similar statement on the Health side. I will keep my remarks brief, in any event, since I hope both the Annual Report for 1999-2000 and the memorandum of evidence which I submitted to the Committee speak for themselves. My remarks are essentially intended to highlight some key developments. In both the Annual Report and the memorandum I refer to the Cabinet Office review of Public Sector Ombudsmen, a matter which has much wider and longer lasting significance than simply the year to which the Annual Report related. The review report was issued in April this year, and in June the Government instituted a consultation exercise on the report's recommendations, but the outcome of that is still awaited. Early decisions on, and implementation of the recommendations would greatly assist the strategic planning of the office, and no doubt that of my Local Government Ombudsmen colleagues, and enable me to continue to improve the service that I can provide. I think I can say that for my office it was a third good year in succession. As I said in paragraph 1.1 of the Annual Report, the main task was to consolidate and build on the achievement of 1998-99. We not only achieved that but also, in order to continue the process of change, we undertook a substantial planning exercise in order to bring in from the beginning of April this year the organisational and procedural changes which are outlined in paragraphs 1.15 to 1.20 of the Annual Report. In brief, they centred on an extension of the office's "product range" so as to abolish the rigid distinction between complaints not accepted for investigation and those accepted and more or less automatically subjected to an extensive investigation and report. What we now aim to do is take such action, and only such action, as is needed for a soundly based and just resolution of the complaint. In my memorandum I have sought to bring the Committee up to date with developments and to outline the benefits which I believe have accrued from changes. My office is now taking initial action on complaints much more quickly than in the past. If a complaint is clearly not within jurisdiction the Member should receive a reply within two weeks of our having received the complaint. 61 per cent of complaints are being resolved or a statement of complaint put to the Department or body concerned within six weeks, and all but a small number are being settled in that way within 13 weeks. A much higher number of complaints are now the subject of an appropriate level of investigation, the aim being to reach resolution of the complaint as quickly as possible and then we take action no further unless there are good reasons for doing so, for example where greater depth of investigation might reveal procedural weaknesses which ought to be put right so as to prevent further mistakes. Although the office has not been able to reduce the average throughput time for full investigations, it is currently 47 weeks, that is the same as last year, really that is not surprising. The cases which now go to full investigation tend to be more difficult and complex than they were, and because of the way in which we are now dealing with more straightforward cases, without a full investigation, we exclude those cases from the calculation which we traditionally use. I think a more accurate view of the office's performance on throughput times would be to include in the calculation all cases in which we initiate inquiries. Such a calculation shows that our current average throughput time is 22 weeks. I think this is a creditable figure which reflects very well on the way in which my staff have responded to the changes that I have described. There still does remain a problem with the number of cases in which the investigation exceeds 52 weeks. Many of those cases raise tricky questions for departments, particularly in relation to redress, but the time taken by departments to respond is often longer than it should be and some are just not doing well enough. I referred in my memorandum to some examples of prolonged delays before departments accepted—and in one case has yet to accept—our recommendation for redress. Those are extreme examples, but there are others, less extreme but where I do believe that there have been unreasonable delays. Finally, I should perhaps mention the State Earnings Related Pension Scheme. In paragraph 1.25 of my Annual Report I mentioned the special report which I submitted to Parliament last March. In paragraph 1.26 I said that when the details of the Government's proposals were available I intended to offer Parliament my advice on whether such proposals were in principle capable of providing appropriate redress. On 29 November, following his statement in the House of Commons, the Secretary of State for Social Security wrote thanking me and my staff for the work that we had done in identifying the potential problems associated with the proposals for a redress scheme. He said that as a matter of urgency his officials would be providing me with briefing on the detail of his proposals. I welcome that and I look forward to offering my advice on the eventual draft regulations. I am very well aware of the work the Committee has done in investigating that whole issue. Thank you, Chairman.

  2. Thank you very much. If I could just kick off with one or two general questions. First of all, you mentioned the SERPS issue on which you made your Report last year. Obviously one thing that we would like to know, if you feel it is appropriate for you to answer, is as you are going to be consulted about the scheme that is going to be produced—we now know in general terms the scheme that is to be introduced—is it your view that this fully meets the needs of the cases you investigated in your Report?
  (Mr Buckley) From what I know of the Scheme, Chairman, it seems to me to be very much, if I may say so, in the right spirit. I am putting it in those rather cautious terms because, as so often, the devil is in the detail. We have not yet seen the draft regulations. I would want to defer giving formal advice until I have seen them. As is implicit in what the Secretary of State said, and I have reported, we did have some useful exchanges with officials from the Department of Social Security. We did express some misgivings about the way in which they were going before. Again we have to be careful because it is not my job, it is not that of my staff, to act as advisers to Government. We are advisers to Parliament and we are always very careful to maintain that position. We try in the public interest, obviously, to give the benefit of our experience. As I say, I think I need to defer offering anything definitive until I have seen the draft regulations, which I have not yet done.

  3. Could I ask another general question which is about the implications of the Human Rights Act for the work of the Ombudsman? This is not something you refer to in your report for 1999-2000 but it is one which every organisation is having to look at. I think there have been some questions raised about whether some of the aspects of the framework within which you operate are going to be consistent with the Human Rights Act if tested. You have obviously thought about it. Have you come to a view on this yourself?
  (Mr Buckley) Indeed, Chairman. This has been an issue within the office which we have discussed. I think there are a number of aspects. The first, of course, is I think one has to remember that the European Convention on Human Rights was regarded after the war—and this country took a leading role in producing the Convention—as, if you like, a codification of decent democratic ways of behaving. What my office is trying to do, of course, is to secure decent ways of behaving within Government. I think what I would say is that the sort of findings we produce are unlikely to be affected because I think we are already operating in precisely the spirit of the Convention. I think there will be a new set of issues for departments which we will need to consider at one remove. A new form of maladministration will be failure to consider the implication of the Human Rights Act 1998 in taking decisions. That is something we shall have to look at. Another issue we will have to face is those complainants who come to us and say they want a declaration that their human rights have been infringed by something which the Department has done. We have to say to such complainants that that sort of binding declaration can only be provided by the courts and they have to go there. I can see that coming into play when we are looking at complaints. As for our own procedures, it has been suggested, in particular, that Article 6 of the Convention, which relates to a fair trial, might have a bearing. It basically lays down requirements regarding civil rights and obligations. However, because my findings and recommendations, like that of other public sector Ombudsmen, are recommendations, they are not binding awards. We are, therefore, advised that we do not determine civil rights and obligations and, therefore, Article 6 does not apply. There are different considerations if one is looking at a private sector Ombudsman, who is doing something very much in the line of determining rights and obligations. I am advised there is no direct implication through Article 6 of the Convention.

  4. You have taken legal advice on this and your legal advice tells you that you are not going to experience any immediate difficulties?
  (Mr Buckley) The British and Irish Ombudsman Association did seek advice from counsel on the bearing of the ECHR. It was relevant to the public and private sector members of the Association. To simplify, the advice from counsel, the classic Ombudsman, myself whether as Parliamentary Ombudsman or Health Service Ombudsman, and the Local Government Ombudsmen, was not caught by the specific requirements of Article 6 of the Convention. Obviously we must, as we always have, follow the requirements of fairness and natural justice, but that has always been implicit in domestic law anyway.

  5. To take an issue which we have discussed with you before, when you produce your report you always give a copy first to the department against which the complaint has been laid and which you have investigated, so that they can come back on the factual stuff, and so when you produce the final report there is agreement on the facts of the case. However, your practice has not been to show that preliminary report to the complainant, so that they in turn can come back to you on the facts of the matter. That has always been an issue, irrespective of any implications of the Human Rights Act. Is there not a vulnerability in terms of procedural fairness that you might have to look at again?
  (Mr Buckley) There is certainly an issue there, Chairman. I think I have to put it in slightly starker terms than you do. We show to departments and bodies we investigate, not only the factual part of our draft report, but also the findings and recommendations. That is necessary because we need to be sure they will put the recommendations into effect or provide the redress that we agree is appropriate. We have thought about this quite carefully. We do sometimes send copies of the factual parts of the draft report—it is very rare for us to send the whole report—to the complainant if we think that is necessary. We are thinking about going further. Given some of the pressures we are under to reduce throughput times there is an argument the other way, because it is bound to lengthen the process. There may be a misunderstanding and people may think we are negotiating the report with them and not simply putting it out for comments. As the law now stands, or at least as it is declared, we have a reasonably strong case. The issue was the subject of a judgment by the Divisional Court in an application for judicial review in 1993, if my memory serves me correctly. The Divisional Court upheld the practice, which had been followed by all Parliamentary Commissioners, of not normally showing the report in draft to complainants. It is something that we do keep under review. As I say, when we think it is necessary in the interests of fairness and producing a satisfactory investigation report we do, from time to time, show the factual part of the report to the complainant. Alan Watson may wish to say a bit more on this.
  (Mr Watson) The norm is not to issue the draft report to the complainant. If there are very good reasons for doing so, in terms of fairness or checking out the facts as presented in the report, we do issue the report for comment by the complainant. It is only generally the factual comment. The complainant has had the opportunity right at the beginning of the investigation to put all of the evidence forward that is appropriate to the complaint. Sometimes if we interview the complainant in the course of the investigation we let them see the interview notes. Putting the draft report to the department is their opportunity to check the facts as we have identified them during the investigation. We think in general terms that is sufficient for fairness, unless we have very good reason for going beyond that.

  6. Sometimes people write to people like us and they will say, "you accepted what someone told you, in a sense, at face value, and we know it was not true". They did not ever get a chance to tell you that because they did not see you accepted it until the report came out.
  (Mr Buckley) Sometimes there is a misunderstanding. Very frequently, even more on the health side of the office, we recount and rehearse all of the factual parts of the evidence that we have been given. That is simply reporting the evidence as it has been put us to. It is not by any means always the case that we accept that evidence at face value. We would need to check. If things were brought forward which appeared to contradict the evidence that had been put forward by the complainant, and which we could independently verify—there might be something on the file which substantiates what was said—then we might well wish to interview the complainant or put the points to them. Sometimes there is a misunderstanding, that simply because we say, "The chief executive said" we are accepting everything that the chief executive did say, and that is not true.
  (Mr Watson) There is one further point worth mentioning. As part of our new working practices we are having very much more telephone contact with complainants in checking out the facts and the situation, much more than in the past.

  7. I was going to ask you something about this, when I read your reports—of course I have now had the opportunity of reading several years of these and we go through the same routine when you talk about throughput times, and so on, rightly so, and we hope some of the Ombudsman review recommendations are going to make an impact on that eventually—I am left thinking in terms of the complainant: you know, what do you do along the way to make sure that their opportunities for dissatisfaction are minimised? For example, do you tell them that your investigations take an awfully long time—"If we investigate properly it is going to take the best part of a year"? I just do not know the answer to these questions. Do you keep them informed? Do you tell them honestly about the length of time and some of the difficulties that you report to us in your report, so that they do not sit there waiting and then get a report they sometimes do not feel terribly happy with?
  (Mr Buckley) The answer to the first question is we do. We have a standard letter which says that we hope to complete the investigation as soon as possible and, in any event, by a stated date, which is twelve months from when we received the information we need in order to make a decision about whether to investigate or not. We also do try to keep complainants in touch with the progress of investigation. I think our performance could sometimes be better in that respect, but we are putting much more effort into, as you rightly say, Chairman, keeping complainants in touch with what is going on. If, as we do, we get something out of the department we will write a "good news" letter. We do try to keep in touch. I do take the point that we could do more.

  8. I am almost done. Can I just ask you this, so that I can get inside this again, and really as a constituency MP rather than as somebody who chairs this Committee. On page 15, paragraph 2.5 of your Annual Report, you say when a complaint is received the Ombudsman's staff first ask the following four questions. You go through the four questions that you ask. First, is the complaint about a Department or body and about a matter which falls within the Ombudsman's jurisdiction? Secondly, does it look as if there was a failure of administration? Thirdly, does it look as if that failure has caused personal injustice which has not been put right? Fourthly, is it likely that the Ombudsman's intervention will secure a remedy? Those are absolutely formidable questions. What I am not clear about though is does somebody have to pass all four? Is this a gatekeeping exercise? Do you have to get a tick against all four before you proceed to the next stage? How does it work?
  (Mr Buckley) You absolutely must get a tick against the first question, if it is outside the jurisdiction that is it, there are no two ways about it. On the whole, yes, you do need to get ticks against the next three. One needs to take a broad view. The personal injustice may be that they have been given bad advice and been messed about horrible—in the vernacular—and that would be an injustice which we would want to look into. The second question is tricky. It is really directed to making sure that our investigations are into cases which, shall I say, are a reasonable use of taxpayers' money. We do, for example, get cases which are really little more than an appeal against an administrative and discretionary decision, a planning decision or whatever. Unless there is some reason to believe there is maladministration, at the end of an investigation there is going to be: "This is a discretionary decision taken without maladministration and I am explicitly debarred from calling that into question". There is not much point in going through the process if that is going to be the end product. What we are trying to do with those three questions is to say, "Well is this going to be worthwhile?" I quite accept that one has to take a broad view of that. By definition, if the complainant has come to his or her MP and wants the matter referred to us, it is something they are taking seriously. We do take account of that very much. But, for example, if something has gone wrong but the Department concerned has admitted it "yes, we got it wrong", they have provided all the redress we think is likely to be available, there is not much point in an investigation by my office. It is expensive and time consuming and at the end of the day there is not much to investigate because the facts are not in dispute. The only redress that we will get is a renewed apology and a statement that the redress that has probably been given is adequate.

  9. When you write to someone to tell them that you are not going to take up their complaint, how fully do you tell them the reasons for that?
  (Mr Buckley) We set these out. Of course the letter is to the referring MP. It must be, under the law. We do set out the reasons why we do not think it will be sensible to take the case to full investigation. We try, obviously, to set out a case that is persuasive because we have to persuade both the MP and the complainant that the discretionary decision we are taking is a reasonable one. We do get comebacks from time to time but I think I can fairly say that we get many fewer than we used to in the past. Alan may have the figures.
  (Mr Watson) It is true.
  (Mr Buckley) I think the approach that we are adopting is more flexible. We are trying to produce more user friendly and easy to understand letters and I think it is working. There will be comebacks. There will be those, for example, who refuse to accept that we cannot look into something that is outside our jurisdiction and there is nothing we can do. We simply have to go on saying no. Sometimes people are looking for a remedy which is not in my gift, maybe wanting some disciplinary action against a particular public servant. That is not for me. I can remember one case where what the complainant wanted was a decision reversed. The only way that could be done was by judicial review through the courts. There was no point in my investigating because I could not give the complainant what she wanted.

  10. I think I just want an assurance—again I speak as someone who sends off complaints to you, as we all do here, on behalf of constituents—that as long as someone gets a tick against these boxes, as it were, they will get through your door—I know that involves judgments—but that you are not in the business of turning someone away because you have to turn someone away in order for your office to operate at all?
  (Mr Buckley) No, I think that is not so. I must be candid. There was a time in the past when we had some awful backlogs and there really seemed little point in taking on, shall we say, borderline cases when the result of that was to send the case to the end of a two year queue. It really was not going to do much good. We are out of those days. Now we have a bias in favour of taking cases on. I think the figures that I put in the memorandum show that. We are now taking some sort of action in something like 33-35 per cent of cases which, historically, is a pretty high figure.

  11. Before I hand over, I have just one question on something completely different, and probably wholly unfair to ask you but that is not going to stop me. The reason why we were late getting you in, which I apologise for, we were having some private discussions about other reports we are in the business of producing, one of which is to be on the so-called Ministerial Code. One of the issues, as you know—I think you probably have discussed it with us at some point in the past and I would like to ask you again in the context of our thinking about this area now—is that when it is said that there has been maladministration within Government, that a minister, for example, may be culpable in some way, we have this thing called a Ministerial Code against which we can measure conduct to see if people have done things they should not have done. What Parliament does not have though is any means available to itself of finding out whether what has been alleged to have happened has happened. What I want to put to you is, you are someone sitting here with all these powers of investigation not available to Members of Parliament, you can go and see all these papers, you can get inside and find out what is going on, would it not be sensible to graft you on to Parliament's machinery for finding out whether such maladministration and breaches of the Code have occurred?
  (Mr Buckley) I think I would have to say, Chairman, I could not investigate unless some member of the public claimed to have sustained some injustice as a result, a belief that there had been some form of malpractice by a minister which had resulted in an injustice to a member of public—

  12. You are describing the existing legislative framework. I am describing to you an extension of this which Parliament has decided it might like.
  (Mr Buckley) That is a matter, obviously, for Parliament, Chairman, though I can think of some similarities with the Local Government Ombudsmen who indeed investigate complaints involving suggestions that councillors have breached the local authority code of practice. It is not unthinkable but, obviously, I work within the statute as it is now and that is pretty firmly off limits. Ministers are not off limits. Ministers are part of departments; but ministerial conduct as such is not a matter for me.

  13. No, no, no, I understand, I am asking for you to look widely. Not unthinkable.
  (Mr Buckley) Not unthinkable.

  14. We will settle for not unthinkable.
  (Mr Buckley) Not unthinkable, Chairman, but as I say, fortunately I think this is a matter on which maybe the Government will propose and certainly Parliament will dispose.

  15. Is it not the case though that ombudsmen in other countries are to be found having roles of this kind?
  (Mr Buckley) Certainly they have been involved in this sort of thing. Again, it depends on the jurisdiction. There are some ombudsmen in other parts of the world, much of whose work is devoted to investigating complaints of corruption at all sorts of levels in the public service; that is not so here. Yes, it is possible, certainly possible, for working ombudsmen to criticise ministers quite strongly and there have been anecdotal suggestions that the downfall of some prime ministers has been occasioned by ombudsmen's reports elsewhere.

  Chairman: I think you are warming to this now. I have put this dangerous thought in your head!

Mr Turner

  16. Can I just go back to the point the Chairman was making about involving the complainant at an earlier stage. As you rightly said, we get letters from people and one of the recent ones happens to be on health. They complained that you have ruled on matters they have not asked you to investigate and failed to obtain relevant answers from the independent adviser. A lot of the other problems were because you did not find in the person's favour. Where there are specific things you were not asked to investigate, you might think they were very relevant but if you had come back to that person earlier these kind of difficulties might have been avoided. Do you think that is something that is worth looking at again?
  (Mr Buckley) We do try very hard to get a formulation of the things we will investigate which is, if you like, what the complainant wants us to investigate. Obviously that has to be within the four corners of the statute. Sometimes people want us to investigate things that we cannot or we decide would not be right to investigate. On the Parliamentary side there is always this tension, and this is one reason I have always been very open with the Committee about what we are doing, and to an extent we are rather bending the law. The spirit of the law is really that our dealings should be with the referring member. The great majority of members want us to deal with the complainant, while keeping them in touch. That is what we do. We always have to remember that one of our customers is the referring member. There is a difficulty on the health side, which Mr Turner mentioned particularly, and we may be discussing that later in the session. Very often the complaint is that something has gone wrong and the complainant, being a lay man or women, does not know why. They know that something has gone wrong, as they see it, but they may not know the cause of it. They may think it is the nursing staff rather than the doctors or vice versa. Sometimes what happens when we get into an investigation is that we find that the treatment has left something to be desired, but that the cause of the dissatisfaction, of what went wrong, is not what the complainant believes. I can see that that will lead to problems. Once we have begun the investigation we think it is necessary to go through with it so that the complainant does get a proper investigation. We want to make sure that the employing body—the hospital or whatever it may be—knows what has happened so they can put things right. I can see that there may be some circumstances where a complainant would say, "The nurses were wonderful, why were they investigating them". The nurses may have had a wonderful bedside manner but they may not have applied the treatment correctly. I can see the possibility of a misunderstanding there. In general we do try our very best to make sure we investigate what the complainant wants us to investigate.

  17. There is some anecdotal evidence that I have received that some lawyers are tending to use the Ombudsman and the general complaints process as the first way of trying to get something and then going on to the courts afterwards. Do you think that is true? If you do think that is true, do you think that should be discouraged in any way? I am not quite sure how that could be discouraged. Do you think that is something that really needs looking at?
  (Mr Buckley) It is certainly something that is said when I and my staff go round the Health Service, and it could equally apply on the Parliamentary side. It is sometimes said "they are using my investigations as a fishing expedition to find things out". That may be so, but I think what I would say is this, we do not produce anything that could not in principle be discovered anyway. We do not disclose matters which could not be revealed otherwise. It may be helpful to establish facts by, I hope, a reasonably cheap process rather than put it through the business of having it argued out by highly paid lawyers. Thirdly, I do not think there is anything that one can do about this or should do about this. It may well be, for example, that in the course of our investigations things come out which suggest that there really has been something seriously wrong. One of the cases in the Health Annual Report showed precisely that. Our investigations revealed that there had been a very serious lapse and shortcoming in treatment. I do not think in those circumstances it would be at all right to say that somehow the complainant is deprived of their legal rights. They should be free to litigate. All I would say is that it must be litigated in its own right, it should not be by using my investigation report in any way. People must then go through the procedures as laid down by the courts.

Mr Tyrie

  18. Just building on that point about the relationship between your work and judicial review, some Ombudsmen, as you know, have the powers of finality, whereas you really give advice. You come to a view that is ultimately only advice. If people do not like it they can go to the courts, either party can. Do you think that the balance we have at the moment is the right one? Do you think that we might do better to consider giving you quasi judicial powers?
  (Mr Buckley) I think there are a number of matters there. Firstly, of course, the legislation under which I work creates a strong presumption that things which are justiciable will go to the courts or to a tribunal. On the whole I am looking at things where there is no alternative remedy: for example, on the Parliamentary side of the office the question of whether somebody is entitled to a particular benefit is something which should be taken to a tribunal. I am concerned with whether there has been maladministration, for example somebody has failed to apply for benefit in time because they have been given poor advice by the Benefits Agency. These are things which are rightly dealt with by an Ombudsman, because we are trying to apply reasonability, fairness and common sense rather than strict legal criteria, where the conditions for the benefit are established. In principle many of the things my office look at, particularly on the Parliamentary side, could be the subject of judicial review. Judicial review is in many ways a pretty unsatisfactory remedy for complainants. The timescale for bringing a case is very short, it is expensive, it is based on affidavit evidence and usually, although it is possible to award compensation, the remedy is very often no more than asking the relevant authority to think again rather than saying, the answer should have been such and such. I think one broadens that out to say, well should the Ombudsman be, if you like, something like the Ministry of Courts.

  19. As they are in some countries.
  (Mr Buckley) The original concept, particularly in Sweden, was very much of the Ombudsman as a lawyer supervising all of the administration and, indeed, supervising the courts. The Swedish and other Nordic Ombudsmen must by law be qualified to be a judge of their Supreme Court. They are doing this legal thing. All one can say is that it is operating within a very different constitutional and legal tradition. The tradition of this country is very much to push things towards the courts and to use the Ombudsman as a supplement to the courts, operating in a grey area and in certain areas that are not suitable for the judicial route. That is what we worked out and I think it works quite well. In the private sector, though, they are acting as an alternative to the courts—inasmuch as they are deciding disputes over insurance contracts which could go to the court and which, if the policy holder insists, will go to the court because the requirement to go to the Ombudsman is binding on the industry, it is not binding on the policy holder—that gets you into a totally different attitude and into a totally different type of approach where the Ombudsman will, in effect, be a genuine alternative, superseding the administrative tribunals and the court. It is a workable system, it works elsewhere. It is very different from what we have and you would need to have a rethink about the whole system of the administration of justice.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 5 March 2001