Select Committee on Public Administration Minutes of Evidence

Examination of Witnesses (Questions 40-59)



  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?

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