Examination of witnesses (Questions 20
- 28)
WEDNESDAY 13 DECEMBER 2000
MR MICHAEL
BUCKLEY and MR
ALAN WATSON
20. So the answer was "No, thank you, I
would rather not"?
(Mr Buckley) Yes. A Sir Humphrey one, was it not,
yes.
21. I take it you would rather not turn yourself
into a judge. I take it there are three reasons—have I got
it right—why: you can investigate more quickly, you can
investigate more cost effectively and you have greater and non
judiciary-bound powers of discovery?
(Mr Buckley) Yes. Technically it is the same power
as the high court but we can get into departmental files and conduct
investigations I think in a much easier way. Of course it is a
non adversarial procedure. We investigate, my staff investigate,
the issues that we regard as relevant in what we hope is the most
cost effective way. Of course the courts must adopt an adversarial
approach to the evidence that each of the two parties bring, that
is the evidence before the courts.
22. Courts seek certainty and clarity even at
the expense of a lot of money and a lot of time. If you are to
be distinctive from them, and I have named three areas where you
might be distinctive, should not you be erring on the side of
speeding up throughput even more, being a slightly rough and ready
system rather than a quasi-judicial system in which everything
comes to a final decision?
(Mr Buckley) We have moved quite a long way in that
direction. This is one of the areas where I think one has to look
again at the legal constraints. We have talked quite a lot about
those. There are some areas in which the legal constraints are
clear and unavoidable. For example, if we propose to conduct an
investigation we must by law send a statement of the content of
the proposed investigation to the principal officer of the department
and so on. That is unavoidable. There is a more subtle and pervasive
assumption in the statute which is that we are there to do investigations.
What the statute says—quoting from memory—is that
for the purposes of conducting investigations in accordance with
the provisions of this Act there shall be a Commissioner. There
is the presumption we will investigate and produce a report, and
once we have produced it, as functus officio we cannot
go back from it. It does push one very much in the direction,
as you say, of thoroughness and certainty and so on. Moving away
from that, there are limits within the statute on what we can
do. Of course, there are some types of cases where there are very
large amounts of money or large principles at stake in which we
do have to do a thorough job, both to persuade the department
that what we say is right and to persuade the complainant that
we have given the case a thorough hearing. I agree we are moving,
and we are trying to move and we have moved and we may move further
in the direction of not rough justice but producing a result with
which all three parties are reasonably satisfied: the complainant,
the department and us, without exhaustive examination. There are
limits as to how far we can go.
23. With that phrase of "not rough justice"
somehow not in quite as grey a niche as rough justice, I would
like to turn to SERPS. I would like to come on to your proposals
for redress in a moment but first of all, just to clarify, what
you discovered there was a serious maladministration. It infected
large chunks of the department and the agency associated with
it. You technically I think legally only have responsibility for
looking at individual cases but when you come across something
like this, is not part of your responsibility—or should
not part of your responsibility be—to make proposals that
can provide systemic redress, that is to say "This department
has something systematically wrong with it. Here are some suggestions
to put it right"? Or, to put that question more generally,
should you not be in the business of creating a redress mechanism
which will make your role ultimately redundant?
(Mr Buckley) You are absolutely right,
yes, Mr Tyrie, what the law says is that we start from individual
complaints. In the particular case of SERPS we had well over 300
complaints. We technically investigated four as a sample. Very
often where there are a significant number of cases, whether in
SERPS or elsewhere, we will find that there are systemic problems.
We will find out or be told that there are others in the same
position and certainly we expect departments to put that right.
Chairman
24. Can I just interrupt for a second. This
is interesting. It goes back, also, to what I was asking you about
your four test questions. When you get 300 complaints on an area
that suggests there is something really wrong with a department,
do you go back to the 296 people and say to them "Actually
your cases are quite as good as the other 300 but I am only going
to investigate four because . . ." and you tell them. Is
that how you proceed?
(Mr Buckley) Well, in a sense, yes.
What we did was to write to the referring Member saying "We
are parking your case. We are going to investigate the thing as
a general issue and produce a report under Section 10(4) of the
1967 Act so we will raise it as a general issue". In a sense,
taking it wider, it was perfectly clear from a very early stage—it
was not seriously contested—it was absolutely clear there
had been serious maladministration on a very big scale. Therefore
there was not much point in just looking at four or even 370 of
the cases and saying "Do these and these alone". One
had to be looking at a systemic—or if I can say, perhaps
not entirely felicitously—a global approach. That was the
only way in which one could be sure that all those who had been
misled, or reasonably could say they had been misled by advice
from the Department would secure adequate redress. The question
of should we be recommending improvements in the system, well
we do if occasion offers, but we are not management consultants.
Of course, there was a particular problem with the investigation
of the SERPS matter in that try as we might and try as the National
Audit Office tried, we could not find out just why it had happened.
We looked at the files and it was clear the mistake had been made
but not why, so we could not. There was a very obvious basis but
of course the NAO report did make quite a few recommendations.
We were working in tandem with the NAO. Finally, I do very much
agree with the proposition that one of the main things we should
be doing is helping departments devise appropriate redress systems.
Indeed, we mentioned the Immigration and Nationality Directorate
of the Home Office in the memorandum, and of course the Committee
took evidence on that some time back. That is precisely an area
where we worked closely with the Directorate to produce a system
of redress and many complaints have come forward. In fairness
to the Directorate, it has been very willing to admit fault and
it has got what we regard as a reasonable redress system which
allows them to sort the case out quickly. I do not know if it
will make us redundant. I am not sure if that is the Ombudsman's
dream or the Ombudsman's nightmare to arrive on Monday morning
and be told that everything is fine out there.
Mr Tyrie
25. You say it is part of your role to make
suggestions.
(Mr Buckley) Absolutely, indeed.
26. To prevent inquiries ending up with you.
(Mr Buckley) Absolutely, yes.
27. Now can I just ask one last set of questions
about the whole SERPS issue. You made a number of recommendations
on what the redress system should be, how much, what the level
of compensation should be.
(Mr Buckley) No, with respect—
28. Tell me what you recommended.
(Mr Buckley) What I recommended was essentially
that there should be a global system. The Department does have
a system of providing redress for people who have suffered by
maladministration but the complainant has to make out his or her
case with evidence and bits of individual information and so on.
That was plainly not going to be practical in this case because
the burden of proof was reversed. In the normal course of events
departmental leaflets get it right, departmental staff in the
local offices and the like are trained to give the right advice.
We knew with SERPS that the departmental leaflet got it wrong.
We knew that staff in the benefits offices had not been trained
to give the right advice, they were giving the wrong advice and
giving it up to a very late stage. Therefore anyone who had picked
up a DSS leaflet or been to a benefits office had to be presumed
to have been given bad advice. What we were saying is it is no
good trying to pick and choose individual complainants, you have
to do something which starts off from the proposition that the
department is guilty of maladministration and you have to put
it right. I made no recommendations about the level of compensation
and it was one reason why I was rather cautious in my response
to the Chairman's remarks. One does have to look at the detail
of what is going to happen. Really what I was saying was about
the principles of the scheme rather than the level of redress.
Chairman: Thank you for that.
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