Examination of Witnesses (Questions 40-59)
THURSDAY 27 NOVEMBER
2003
ANN ABRAHAM
Q40 Mr Hopkins: Yes, this is an entirely
different field and this might be a rhetorical question, but I
think it is fair. On funding for long-term care, difficulties
with criteria, whatever, would it not be legitimate to say to
the Government that given the Report of the Royal Commission,
which recommended free long-term care, given the overwhelming
majority of popular support for free long-term care, given the
fact that it would cost very little in terms of funding, it could
be done with progressive taxation, that all of these problems
could be solved simply by providing free long-term care, as so
many of us believe we should?
Ms Abraham: Well, I suppose the
Ombudsman's answer is that it is not my place to say so. I think
at the moment we are at a stage where it is really not clear yet
whether the existing regime can be made to work and I think that
is the question. There are hundreds of reviews going on now in
strategic health authorities and primary care trusts of cases
which have been referred directly and that we have referred, and
you will see that the volume of work that has come to my office
is as a result of the report we issued in February. The key time,
I think, will be when those reviews have been completed. If large
numbers of people come back to my office and say that they are
still unhappy and we then conduct further investigations, I think
I would be better placed to take a view on whether this is a regime
that can be properly operated.
Mr Hopkins: So you are highlighting the
treacle of means-testing.
Q41 Chairman: Can I just ask one further
thing on this, if I may, because I think it is quite interesting,
what you just said. This is a category of case which does raise
those issues about whether there is the prospect of maladministration
built into it.
Ms Abraham: Yes.
Q42 Chairman: And I just want to press
you a little further on what you said just now which is, "It
is not my domain", and all that. You being a person who wants
to press the boundaries and explore the potential of the role
that you have taken on, surely it is your business if you are
investigating cases where the lesson of the investigation is that
if you devise a system like this, the chances of maladministration
are extremely high and, therefore, it would be sensible to devise
a better system, that is something that, as an auditor of these
things, you should say, is it not?
Ms Abraham: I am very happy to
say that. What I do not think I can do is go on to say what that
system should be.
Chairman: No. No, I am not asking that,
but I think that would be extremely useful if you saw that as
your role.
Q43 Mr Hopkins: On NHS complaints procedure,
there have been fairly radical reforms recently, one of which
I think was very positive, perhaps. However, in my locality the
Community Health Council has been closed down. It used to be a
walk-in shop in the town centre, accessible to people on foot.
Old-age pensioners coming in by bus, and ethnic minorities whose
English may not be strong could walk in. Is the new system going
to be as helpful as the old system and do you see any criticisms
in the changes which are actually going to make the complaints
procedure more difficult to handle for people rather than less?
Ms Abraham: I think it is far
too early to say whether the new system is going to be better
than the old one. I think the whole question of immediate support
on the ground has very much suffered from the extended timescale
over which this has been introduced and, therefore, the end of
CHCs and the start of PALS has not actually run in the timescale
that would have been ideal. I suppose if you look at this from
the point of view of our evidence, what that evidence says is
that the independent tier has been very much a curate's egg and
there have been some very good examples of the independent tier
working well and there have been some horrendous examples of extremely
poor independent tiers and panels. Therefore, the idea of bringing
that independent tier together in one place seems to me to be
a positive one, but again everything is happening in a very short
timescale and we are in pretty detailed discussion with the people
in the new Commission for Health Audit and Inspection about how
that is going to work and about how the relationship with my office
is going to work, so I think it is too early to say. The Making
Things Right document has all the right words in it and the
challenge now is going to be about turning those words into reality
both in terms of support on the ground at local resolution stage,
the sort of support that you were describing that is now shut,
and making the independent tier work well. There is a huge amount
to try to do between now and next year and complaints is obviously
only a part of that, so I do think that the next 12 to 18 months
will be a critical time and we will be watching very closely how
that progresses, but I think the jury is out at the moment.
Q44 Mr Hopkins: If I could broaden out
the question of accessibility which we talked about earlier, the
concern I have, particularly in my constituency, is that a very
high proportion of the population will find a problem with filling
in forms, will just find it all too difficult. We have 21% of
the UK population who are functionally illiterate. We also have
elderly people whose sight might not be very good, and these may
be people who have major health concerns. We have some people
from ethnic minorities in my town whose English may not be good,
so is it not still a system which really gives great advantage
to those who are what one might call the relatively educated middle
class, who are very good at complaining, but not to the poor who
often are the ones most in need?
Ms Abraham: Do you mean the system
that the NHS is operating?
Q45 Mr Hopkins: No, across the board.
Ms Abraham: Well, that danger
is clearly there and I come back to the MORI research that we
did. I think what it means is that we need to take very seriously
the fine words in the Department of Health's document and indeed
the fine words in my memorandum probably which talk about providing
the necessary support at all stages for people who are not necessarily
minded to make complaints themselves, do not think there is any
point in doing so, do not feel confident in writing letters, being
open-minded about different ways of receiving complaints, and,
from our point of view, being speedier about it, being more inclined
to accept telephone calls, to actually talk complaints through
with people and read them back to them and get them to confirm
that we have got it right, doing things in different ways and
in different ways that work for different people. Now, I think
there is an acceptance in the NHS complaints procedure that that
sort of activity is necessary, but I think it is still at early
stages and patchy on the ground.
Q46 Mr Hopkins: On an entirely different
question, I was interested to read your report on the Parliamentary
Commissioner Act 1967 and recent complaints. It suggests that
for many years there were no problems at all, and now there have
been two serious complaints in a year as well as a complaint about
excessive delay. Is there a sense in which government is paying
rather less attention to and riding rather roughshod over the
Ombudsman and other aspects of Parliament, and that the overweening
power of the Executive relative to Parliament in Britain is now
starting to show in your field as well as in ours?
Ms Abraham: Well, not if I have
anything to do with it, I suppose is my answer to that really.
I think we highlight the problems there have been in relation
to delays with departments in order to ensure that they do not
continue and I think because we have now got into a mechanism
where, if there are delays, rather than have my investigators
locking horns with departments that are a relatively junior level,
we escalate it to the appropriate level and make sure that things
happen. Interestingly, I was asking my staff to tell me what the
current situation was before I came today who again were the departments
we were having problems with and I have to say Jobcentre Plus
featured highly, the Child Support Agency was in the not-good-but-getting-better
mode, and the Immigration and Nationality Department got a special
commendation for the speed at which they turned things round,
so it is not all an unhappy picture, but we are working very much
to improve the situation where there are problems.
Q47 Brian White: Obviously dragging the
IND in front of this Committee has worked, has it not! Before
I explore that area further, can I just ask one question on long-term
care. There were a large number of people who complained after
your February report, particularly groups like the Alzheimer's
Society and groups to do with dementia generally. How satisfied
are you that there is actual action being taken on your report
and have you followed it up?
Ms Abraham: Well, certainly satisfied
that action is being taken and if I am going to hand out bouquets
again this morning, I would hand a bouquet to the Department of
Health for the extremely constructive and responsive way that
they have worked with us since that report has been issued. The
dialogue has been extremely good, and I was actually offered a
meeting with the appropriate minister to discuss progress, so
in terms of responding to the recommendations in the report, absolutely
so. The reviews by NHS bodies are going on. We have referred around
1,700 complaints to strategic health authorities, PCTs, for review
and we are monitoring closely how those reviews are progressing.
We are taking a view on a case-by-case basis because there was
a commitment initially by the Department of Health, in fact it
was a deadline set by the Department of Health for reviews by
NHS bodies for the 31 December, and I understand that that is
now likely to be extended to March, but we are looking at these,
as I say, on a case-by-case basis, so if we know that there is
a particular primary care trust where they have a large number
of reviews and they have only known about them since September,
we will take a very different view from a primary care trust which
has one or two and they have known about them since April. The
response has been real and there is a lot of activity and a good
dialogue with the Department of Health about this and I think
the real test will come in a few months' time if we start to see
people coming back to us because they are still unhappy about
the results of those reviews.
Q48 Brian White: Can I now explore the
access to official information and we are into another judicial
review with The Guardian having taken a judicial review
against the Minister. How effective do you think the Code has
been? Are the exemptions working or are they hindering?
Ms Abraham: One of the things
I want to do in the course of next year when my office will have
had ten years of experience of the Code is actually do a ten-year
historical perspective on its operation because it seems to me
that it is a piece of history that we ought to record, so I hope
that we will actually produce a report on the operation of the
Code ten years on prior to the Information Commissioner taking
on his responsibilities under freedom of information legislation,
so I suppose that is by way of saying that I will let you know
and it will be a long answer when I get there. What I would say
is that in the course of this year there have been some difficult
moments, but I do think that the Memorandum of Understanding that
we agreed with government which was published in July was a positive
and constructive move and it is helping us and it is helping government
to understand what the Code is about and it is certainly helping
us in our discussions with government departments on individual
complaints to remind them of their responsibilities. It is a bit
early given that that in effect has only been going for a few
months. What I am doing is monitoring the situation closely and
I would hope after six months of its operation to actually be
able to do a proper review of how effective the Memorandum has
been.
Q49 Brian White: And you will send us
a copy?
Ms Abraham: Indeed.
Q50 Brian White: In your annual report
you described the lack of co-operation from some departments as
having one hand tied behind your back.
Ms Abraham: Yes.
Q51 Brian White: Does that lead you to
question whether the current position of non-binding recommendations
is the right one and should we move to a system of binding recommendations?
Ms Abraham: Well, of course in
relation to Code complaints, we are moving to a piece of legislation
and that is all very different. The issue of non-binding recommendations,
I think, is pretty much embedded in the way public sector ombudsman
arrangements have been set up and, interestingly, I was hosting
a visit from the European Ombudsman earlier this week who actually
gave me a very strong and persuasive exposition of why it was
appropriate for the non-binding recommendation approach to be
the right one, because of the Ombudsmen's position in relation
to Parliament. If we were in a situation where the Ombudsmen's
recommendations were regularly ignored, then I think I would be
coming here and saying, "We've got a problem", but they
are not and, as I see it, the way public sector ombudsman arrangements
work in this country, that non-binding recommendation approach
is one that works. There is scope, I think, for my office to be
perhaps quicker and stronger in coming to the Committee if there
are problems and certainly if there were unremedied injustice,
we would do so, but it is certainly not part of my reform agenda
at present.
Q52 Brian White: Obviously the Information
Commissioner is going to be taking over in 2005, so how are the
transitional arrangements going?
Ms Abraham: Well, pretty well
really. I met Richard Thomas, the Information Commissioner, with
some of our respective staff in October and we are due to meet
again in March, but what we have done is set up a small joint
working group of his staff and my staff to look at how the transition
should work. What we are aiming to do is to ensure as seamless
as possible a transition so that there is no hiatus and there
is no point where citizens have nowhere to take a complaint about
being denied access to information. That is our objective. The
joint working group is looking at issues around training, support,
sharing our procedural guidance which is on our website anyway,
possibly seconding staff, looking at handover arrangements, but
the fundamental aim is to ensure there is not a gap where citizens
have nowhere to go with a complaint about access to official information.
Q53 Brian White: And you are satisfied
with the pace of change by government departments in implementing
FOI?
Ms Abraham: It is not for me to
say. I think that really is a question for the Information Commissioner
in terms of implementing FOI and I do not have information or
evidence to give you on that. I do like to think that the work
we have done this year on raising the profile of the Code and
agreeing the Memorandum of Understanding will be helpful to the
Information Commissioner in his work going forward.
Q54 Chairman: You are being rather mild-mannered
about this spat that you have had with the Government about these
matters. You have used rather robust language in print about this.
You were getting very cross, were you not?
Ms Abraham: I was not cross. I
was simply saying that co-operation from government departments
was essential if I was going to do the job that I have been asked
to do and without the co-operation, it would not be possible for
me to do it, and that co-operation I think now is broadly forthcoming.
Q55 Chairman: Well, I think that sounds
like crossness to me. Well, I would be cross if I was driven to
a position where I said I could not do this part of my job because
I cannot have the operating machinery to do it, but you have got
this understanding now. Does this mean, do you think, that you
are going to be allowed access to areas that you were denied access
to before because that was one of the issues, was it not, that
they would not even let you see the information by which you had
to decide whether it was something that you felt should be disclosed
or not?
Ms Abraham: Well, we were having
difficulty getting hold of it. We were never specifically denied
access in any of the cases that I have reported on now and the
investigations we have completed, so we were having difficulty,
but we did get there in the end and the only situation in which
things were different from that was the one which is the subject
of judicial review by The Guardian where a ministerial
notice was issued and that changed the situation completely.
Q56 Chairman: For the first time.
Ms Abraham: For the first time.
Q57 Chairman: Did that seem to you an
important constitutional moment?
Ms Abraham: I suppose the first
time that a power is used is an important constitutional moment,
but I suppose what I wanted to do was to make the people who needed
to think about this think about it. The power was there. It was
given by Parliament, it was considered to be appropriate and I
thought it was far more appropriate for that power to be used
than for somebody to try to persuade me informally that disclosure
was something which was not in the public interest.
Q58 Chairman: Well, we shall watch this
area with you. You have got this responsibility until 2005, so
there are more events still to come.
Ms Abraham: Indeed.
Chairman: You must keep us informed and
we will, as I say, watch closely what goes on, but thank you for
being as robust as you have been so far.
Q59 Mr Prentice: I was just thinking,
listening to this exchange, that it would appear very Delphic
to people watching it on television.
Ms Abraham: Delphic?
| 
