Public Services Ombudsman (Wales) Bill [HL]

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Public Services Ombudsman (Wales) Bill [HL]

Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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[NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.]
A
Bill
To
Establish and make provision about the office of Public Services Ombudsman
for Wales; to make provision about the functions of the Public Services
Ombudsman for Wales; to make provision about compensation; to abolish the
Commission for Local Administration in Wales and the offices of Welsh
Administration Ombudsman, Health Service Commissioner for Wales and
Social Housing Ombudsman for Wales; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
The Public Services Ombudsman for Wales
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The Public Services Ombudsman for Wales
(1)
There is to be a Public Services Ombudsman for Wales or Ombwdsmon
Gwasanaethau Cyhoeddus Cymru (in this Act referred to as “the
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Ombudsman”).
(2)
Schedule 1 makes further provision about the Ombudsman.
Part 2
Investigation of complaints
Power of investigation
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2
Power of investigation
(1)
The Ombudsman may investigate a complaint in respect of a matter if—
(a)
the complaint has been duly made or referred to him, and
(b)
the matter is one which he is entitled to investigate under sections 7 to
11.
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Bill 76 53/4

Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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(2)
A complaint is “duly made” to the Ombudsman if (but only if)—
(a)
it is made by a person who is entitled under section 4 to make the
complaint to the Ombudsman, and
(b)
the requirements of section 5 are met in respect of it.
(3)
A complaint is “duly referred” to the Ombudsman if (but only if)—
5
(a)
it is referred to him by a listed authority, and
(b)
the requirements of section 6 are met in respect of it.
(4)
The Ombudsman may investigate a complaint in respect of a matter even if the
requirements of section 5(1) or (as the case may be) section 6(1)(b) or (d) are not
met in respect of the complaint, if—
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(a)
the matter is one which he is entitled to investigate under sections 7 to
11, and
(b)
he thinks it reasonable to do so.
(5)
It is for the Ombudsman to decide whether to begin, continue or discontinue
an investigation.
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(6)
The Ombudsman may take any action which he thinks may assist in making a
decision under subsection (5).
(7)
The Ombudsman may begin or continue an investigation into a complaint
even if the complaint, or the referral of the complaint, has been withdrawn.
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Alternative resolution of complaints
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(1)
The Ombudsman may take any action he thinks appropriate with a view to
resolving a complaint which he has power to investigate under section 2.
(2)
The Ombudsman may take action under this section in addition to or instead
of conducting an investigation into the complaint.
(3)
Any action under this section must be taken in private.
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Complaints
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Who can complain
(1)
The persons entitled to make a complaint to the Ombudsman are—
(a)
a member of the public (in this Act referred to as “the person
aggrieved”) who claims or claimed to have sustained injustice or
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hardship in consequence of a matter which the Ombudsman is entitled
to investigate under sections 7 to 11;
(b)
a person authorised by the person aggrieved to act on his behalf;
(c)
if the person aggrieved is not capable of authorising a person to act on
his behalf (for example because he has died), a person who appears to
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the Ombudsman to be appropriate to act on behalf of the person
aggrieved.
(2)
“Member of the public” means any person other than a listed authority acting
in its capacity as such.
(3)
It is for the Ombudsman to determine any question of whether a person is
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entitled under this section to make a complaint to him.

Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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Requirements: complaints made to the Ombudsman
(1)
The requirements mentioned in section 2(2)(b) are that—
(a)
the complaint must be made in writing;
(b)
the complaint must be made to the Ombudsman before the end of the
period of one year starting on the day on which the person aggrieved
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first has notice of the matters alleged in the complaint.
(2)
It is for the Ombudsman to determine any question of whether the
requirements of subsection (1) are met in respect of a complaint.
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Requirements: complaints referred to the Ombudsman
(1)
The requirements mentioned in section 2(3)(b) are that—
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(a)
the complaint must have been made to the listed authority by a person
who would have been entitled under section 4 to make the complaint
to the Ombudsman;
(b)
the complaint must have been made to the listed authority before the
end of the period of one year starting on the day on which the person
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aggrieved first had notice of the matters alleged in the complaint;
(c)
the complaint must be referred to the Ombudsman in writing;
(d)
the complaint must be referred to the Ombudsman before the end of the
period of one year starting on the day on which the complaint was
made to the listed authority.
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(2)
It is for the Ombudsman to determine any question of whether the
requirements of subsection (1) are met in respect of a complaint.
Matters which may be investigated
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Matters which may be investigated
(1)
The matters which the Ombudsman is entitled to investigate are—
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(a)
alleged maladministration by a listed authority in connection with
relevant action;
(b)
an alleged failure in a relevant service provided by a listed authority;
(c)
an alleged failure by a listed authority to provide a relevant service.
(2)
Subsection (1) is subject to sections 8 to 11.
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(3)
Relevant action is—
(a)
in the case of a listed authority which is a family health service provider
in Wales or an independent provider in Wales, action taken by the
authority in connection with the provision of a relevant service;
(b)
in the case of a listed authority which is a social landlord in Wales or a
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Welsh health service body other than the Assembly, action taken by the
authority in the discharge of any of its functions;
(c)
in the case of a listed authority which is a person with functions
conferred by regulations made under section 113(2) of the Health and
Social Care (Community Health and Standards) Act 2003 (c. 43), action
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taken by the authority in the discharge of any of those functions;
(d)
in the case of a listed authority which is a listed authority by virtue of
an order under section 28(2) adding it to Schedule 3, action taken by the
authority in the discharge of any of its specified functions;

Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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(e)
in any other case, action taken by the authority in the discharge of any
of its administrative functions.
(4)
A relevant service is—
(a)
in the case of a listed authority which is a family health service provider
in Wales, any of the family health services which the authority had, at
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the time of the action which is the subject of the complaint, entered into
a contract, undertaken, or made arrangements, to provide;
(b)
in the case of a listed authority which is an independent provider in
Wales, any service which the authority had, at that time, made
arrangements with a Welsh health service body or a family health
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service provider in Wales to provide;
(c)
in the case of a listed authority falling within subsection (3)(c), any
service which it was, at that time, the authority’s function to provide in
the discharge of any of the functions mentioned in that paragraph;
(d)
in the case of a listed authority falling within subsection (3)(d), any
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service which it was, at that time, the authority’s function to provide in
the discharge of any of its specified functions;
(e)
in any other case, any service which it was, at that time, the authority’s
function to provide.
(5)
For the purposes of subsections (3)(d) and (4)(d), a listed authority’s specified
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functions are the functions specified in relation to the authority in an order
under section 28(2) as falling within the Ombudsman’s remit.
(6)
An administrative function which may be discharged by a person who is a
member of the administrative staff of a relevant tribunal is to be treated as an
administrative function of a listed authority for the purposes of subsection (3)
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if—
(a)
the person was appointed by the authority, or
(b)
the person was appointed with the consent of the authority (whether as
to remuneration and other terms and conditions of service or
otherwise).
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Exclusion: matters not relating to Wales
(1)
The Ombudsman may not investigate a matter arising in connection with the
discharge by a listed authority of any of the authority’s functions otherwise
than in relation to Wales.
(2)
Subsection (1) does not apply in relation to the Assembly.
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(3)
To the extent that a function of a listed authority is discharged in relation to the
Welsh language or any other aspect of Welsh culture, it is to be regarded for
the purposes of subsection (1) as discharged in relation to Wales.
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Exclusion: other remedies
(1)
The Ombudsman may not investigate a matter if the person aggrieved has or
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had—
(a)
a right of appeal, reference or review to or before a tribunal constituted
under an enactment or by virtue of Her Majesty’s prerogative,
(b)
a right of appeal to a Minister of the Crown or the Assembly, or
(c)
a remedy by way of proceedings in a court of law.
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Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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(2)
But subsection (1) does not apply if the Ombudsman is satisfied that, in the
particular circumstances, it is not reasonable to expect the person to resort, or
to have resorted, to the right or remedy.
(3)
The Ombudsman may investigate a matter only if he is satisfied that—
(a)
the matter has been brought to the attention of the listed authority to
5
which it relates by or on behalf of the person aggrieved, and
(b)
the authority has been given a reasonable opportunity to investigate
and respond to it.
(4)
But subsection (3) does not prevent the Ombudsman from investigating a
matter if he is satisfied that it is reasonable in the particular circumstances for
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him to investigate the matter despite the fact that the requirements of that
subsection have not been met.
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Other excluded matters
(1)
The Ombudsman may not investigate a matter specified in Schedule 2.
(2)
The Assembly may by order amend Schedule 2 by—
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(a)
adding an entry;
(b)
removing an entry;
(c)
changing an entry.
(3)
Before making an order under subsection (2), the Assembly must consult the
Ombudsman.
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(4)
Subsection (1) does not prevent the Ombudsman from investigating action of
a listed authority in operating a procedure established to examine complaints
or review decisions.
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Decisions taken without maladministration
(1)
The Ombudsman may not question the merits of a decision taken without
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maladministration by a listed authority in the exercise of a discretion.
(2)
Subsection (1) does not apply to the merits of a decision to the extent that the
decision was taken in consequence of the exercise of professional judgement
which appears to the Ombudsman to be exercisable in connection with the
provision of health or social care.
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Decisions not to investigate etc.
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Decisions not to investigate or to discontinue investigation
(1)
If the Ombudsman decides under section 2(5)—
(a)
not to begin an investigation into a complaint in respect of a listed
authority, or
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(b)
to discontinue such an investigation,

he must prepare a statement of the reasons for his decision.
(2)
The Ombudsman must send a copy of the statement to—
(a)
the person who made the complaint, and
(b)
the listed authority.
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Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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(3)
The Ombudsman may send a copy of the statement to any other persons he
thinks appropriate.
(4)
The Ombudsman may publish a statement under this section if, after taking
account of the interests of the person aggrieved and any other persons he
thinks appropriate, he considers it to be in the public interest to do so.
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(5)
The Ombudsman may supply a copy of a statement published under
subsection (4), or any part of such a statement, to any person who requests it.
(6)
The Ombudsman may charge a reasonable fee for supplying a copy of a
statement, or part of a statement, under subsection (5).
(7)
If a statement prepared under subsection (1)—
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(a)
mentions the name of any person other than the listed authority in
respect of which the complaint was made, or
(b)
includes any particulars which, in the opinion of the Ombudsman, are
likely to identify any such person and which, in his opinion, can be
omitted without impairing the effectiveness of the statement,
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that information must not be included in a version of the statement sent to a
person under subsection (2) or (3) or published under subsection (4), subject to
subsection (8).
(8)
Subsection (7) does not apply in relation to a version of the statement if, after
taking account of the interests of the person aggrieved and any other persons
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he thinks appropriate, the Ombudsman considers it to be in the public interest
to include that information in that version of the statement.
(9)
If the Ombudsman would otherwise send a copy of a statement (or part of a
statement) to the Assembly under subsection (2), (3) or (5), he must send the
copy to the Assembly First Secretary instead.
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Investigation procedure and evidence
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Investigation procedure
(1)
If the Ombudsman conducts an investigation into a complaint in respect of a
listed authority, he must—
(a)
give the listed authority an opportunity to comment on any allegations
30
contained in the complaint;
(b)
give any other person who is alleged in the complaint to have taken or
authorised the action complained of an opportunity to comment on any
allegations relating to that person.
(2)
An investigation must be conducted in private.
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(3)
Subject to subsections (1) and (2), the procedure for conducting an
investigation is to be such as the Ombudsman thinks appropriate in the
circumstances of the case.
(4)
In particular, the Ombudsman may—
(a)
make such inquiries as he thinks appropriate;
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(b)
determine whether any person may be represented in the investigation
by counsel, solicitor or otherwise.

Public Services Ombudsman (Wales) Bill [HL]
Part 2 — Investigation of complaints
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(5)
The Ombudsman may pay to the person who made the complaint and to any
other person who attends or supplies information for the purposes of the
investigation—
(a)
such sums as he may determine in respect of expenses properly
incurred by them, and
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(b)
such allowances as he may determine by way of compensation for the
loss of their time,

subject to such conditions as he may determine.
(6)
The conduct of an investigation in respect of a listed authority does not affect—
(a)
the validity of any action taken by the listed authority, or
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(b)
any power or duty of the listed authority to take further action with
respect to any matter under investigation.
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Information, documents, evidence and facilities
(1)
For the purposes of an investigation the Ombudsman may require a person he
thinks is able to supply information or produce a document relevant to the
15
investigation to do so.
(2)
For the purposes of an investigation the Ombudsman has the same powers as
the High Court in respect of—
(a)
the attendance and examination of witnesses (including the
administration of oaths and affirmations and the examination of
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witnesses abroad), and
(b)
the production of documents.
(3)
For the purposes of an investigation the Ombudsman may require a person he
thinks is able to supply information or produce a document relevant to the
investigation to provide any facility he may reasonably require.
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(4)
Subject to subsection (6), no person is to be compelled for the purposes of an
investigation to give any evidence or produce any document which he could
not be compelled to give or produce in civil proceedings before the High Court.
(5)
No obligation to maintain secrecy or other restriction on the disclosure of
information obtained by or supplied to persons in Her Majesty’s service,
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whether imposed by any enactment or rule of law, is to apply to the disclosure
of information for the purposes of an investigation.
(6)
The Crown is not entitled in relation to an investigation to any privilege in
respect of the production of documents or the giving of evidence that would
otherwise be allowed by law in legal proceedings.
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Obstruction and contempt
(1)
If the Ombudsman is satisfied that the condition in subsection (2) is met in
relation to a person, he may issue a certificate to that effect to the High Court.
(2)
The condition is that the person—
(a)
without lawful excuse, has obstructed the discharge of any of the
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Ombudsman’s functions under this Part, or
(b)
has done an act in relation to an investigation which, if the investigation
were proceedings in the High Court, would constitute contempt of
court.