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| Public Services Ombudsman (Wales) Bill [HL] |
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These notes refer to the Public Services Ombudsman (Wales) Bill [HL] as brought from the House of Lords on 2nd March 2005 [Bill 76] PUBLIC SERVICES OMBUDSMAN (WALES) BILL [HL]
EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Public Services Ombudsman (Wales) Bill [HL] as brought from the House of Lords on 2nd March 2005. The explanatory notes have been prepared by the National Assembly for Wales in conjunction with the Wales Office, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. A Glossary of terms used frequently in these Notes appears at the end of these Notes. SUMMARY 3. The Bill establishes the office of the Public Services Ombudsman for Wales. The offices of the Welsh Administration Ombudsman, the Health Service Commissioner for Wales and the Social Housing Ombudsman for Wales are to be abolished. The Commission for Local Administration in Wales (including the office of the Local Commissioner for Wales) is also to be abolished. The Bill makes provision for the Ombudsman to investigate those matters that currently are investigated by the existing ombudsmen/commissioners in Wales. The Ombudsman will have responsibility for investigating maladministration and service failure by the Assembly; its sponsored public bodies (the equivalent, in Wales, of non-departmental public bodies) and a number of other publicly funded bodies; Welsh health service bodies (primarily NHS Trusts and Local Health Boards in Wales), certain health service providers in Wales, local government bodies in Wales and social landlords in Wales. Thus there will be a unified ombudsman service in Wales. [Bill 76—EN] 53/4 4. The Bill is organised in 3 Parts. Part 1 deals with establishing the office of the Ombudsman and making further provision in relation to that office. Part 2 of the Bill deals with the Ombudsman's powers of investigation, which matters the Ombudsman can investigate and which authorities can be investigated ("listed authorities"). There is power for the Assembly to amend the list of listed authorities. Part 2 also sets out who can complain to the Ombudsman and the manner of complaint. It provides the Ombudsman with powers to obtain information, evidence and documents etc. in relation to the discharge of his functions under Part 2. The Part also deals with matters relating to the Ombudsman's reports and sets out his powers to consult, co-operate, work and report jointly with other specified ombudsmen and commissioners. In addition there are restrictions imposed on the disclosure of information obtained for the purposes of discharging the Ombudsman's functions under Part 2. Finally, this Part provides for certain miscellaneous matters such as the Ombudsman's power to issue guidance, a duty on listed authorities to publicise complaints procedures, protection from defamation claims and additional provision relating to the powers of listed authorities to pay compensation. Part 3 makes provision about the Ombudsman's functions in relation to the conduct of local government members and employees and for the abolition of the offices of Welsh Administration Ombudsman, Health Service Commissioner for Wales, Social Housing Ombudsman for Wales and for the abolition of the Commission for Local Administration in Wales (including the office of the Local Commissioner for Wales). Finally, this Part makes general provision relating to amendments and repeals, commencement, transitional provision and interpretation etc. TERRITORIAL EXTENT AND DEVOLUTION 5. Principally, the Bill extends to England and Wales but an amendment or repeal made in this Bill has the same extent as the provision that it amends or repeals. It is, however, primarily concerned with the investigation by the Ombudsman of complaints of maladministration or service failure in relation to the action of listed authorities that exercise functions in Wales or in relation to Wales. Consequently, the Bill primarily applies to Wales. Various powers to make subordinate legislation and other functions are conferred on the National Assembly for Wales. COMMENTARY ON CLAUSES PART 1: THE PUBLIC SERVICES OMBUDSMAN FOR WALES Clause 1: The Public Services Ombudsman for Wales 6. This clause establishes the office of the Public Services Ombudsman for Wales. Schedule 1 to the Bill makes further provision in relation to the office of the Ombudsman. SCHEDULE 1: PUBLIC SERVICES OMBUDSMAN FOR WALES: APPOINTMENT ETC. 7. Generally, the Schedule makes provision with regard to the office of the Ombudsman; his/her powers to appoint staff and expert advisers; his/her power of delegation; requirements in relation to annual and extraordinary reports and estimates of the income and expenditure of his/her office and accounts, audit and value for money examinations into the use of the resources of the Ombudsman's office. 8. Paragraphs 1 to 3 make provision as to the appointment, status and term of office of the Ombudsman. 9. Paragraph 4 makes provision for the appointment of an acting Ombudsman where the office of the Ombudsman becomes vacant. Sub-paragraph (8) provides that, generally, an acting Ombudsman is to be regarded as the Ombudsman during the period for which the acting Ombudsman holds office. Consequently, an acting Ombudsman is able, for example, to exercise the Ombudsman's full range of powers with regard to the obtaining of information, evidence and the production of documents under clauses 13, 14 and 15. 10. Paragraphs 5, 6, 7 and 8 make provision with regard to:
11. Paragraph 9 makes provision with regard to the remuneration of the Ombudsman (or acting Ombudsman as the case may be). 12. Paragraph 10 makes provision for the expenses of the Ombudsman to be met by the Assembly, so far as they are not met out of income received by the Ombudsman. 13. Paragraph 11 makes provision for the Ombudsman to appoint such staff on such terms and conditions as he/she considers necessary. Members of the Ombudsman's staff are not civil servants. 14. Paragraph 12 enables the Ombudsman to obtain advice (whether on payment or not) as the Ombudsman considers appropriate in relation to the discharge of his/her functions. 15. Paragraph 13 provides that the Ombudsman may authorise any person to discharge his/her functions on his/her behalf. However, the Ombudsman cannot make arrangements, under this Bill or otherwise, with the Assembly for the exercise by one of the other's functions or for the provision of certain specified services by one to the other. 16. Paragraph 14 makes provision for annual and extraordinary reports by the Ombudsman. 17. Paragraph 15 makes provision so that in each financial year the Ombudsman must prepare an estimate of the income and expenses of his/her office which is then considered by the Assembly Cabinet which must then lay the estimate, with or without modifications, before the Assembly. 18. Paragraphs 16, 17, 18, 19 and 20 make provision with regard to the accounts that the Ombudsman is required to keep, audit of those accounts by the Auditor General for Wales, accounting officer arrangements and examinations by the Auditor General for Wales and/or the Comptroller and Auditor General in relation to the economy, efficiency and effectiveness with which the Ombudsman has used the resources of his/her office. 19. Paragraph 21 provides the Ombudsman with supplementary powers. PART 2: INVESTIGATION OF COMPLAINTS Power of investigation Clause 2: Power of investigation 20. By virtue of clause 2(1) the Ombudsman may only investigate a complaint relating to a matter if:
21. Clauses 7 to 11 set out the matters that the Ombudsman is entitled to investigate. Clause 2(2) and clauses 4 and 5 set out the circumstances where a complaint is duly made to the Ombudsman. Clause 2(3) and clause 6 set out the circumstances where a complaint is duly referred to the Ombudsman by a listed authority. 22. Clause 2(4) enables the Ombudsman to accept complaints even if specific requirements as to the way it has been made or referred have not been fulfilled if he/she considers it reasonable to do so. Clause 2(5) and (6) provide the Ombudsman with a wide discretion as to whether to begin, continue or discontinue an investigation. Clause 2(7) makes it clear that the Ombudsman may begin or continue an investigation even if the complaint has been withdrawn. This covers the situation, for example, where a complaint has been made in relation to a listed authority's action which affects more than one person but where the complaint that has been withdrawn was put forward as the 'lead' complaint. In such cases, where the 'lead' complaint has been withdrawn, it will be open to the Ombudsman to begin or to continue an investigation as he/she sees fit. Clause 3: Alternative resolution of complaints 23. Clause 3 provides the Ombudsman with a wide power to take steps to resolve complaints without proceeding to a formal investigation. The power is available to the Ombudsman to use instead of or in addition to the power to investigate. Complaints Clause 4: Who can complain 24. Clause 4(1)(a) maintains the current position that a member of the public (the "person aggrieved") is only entitled to complain to the Ombudsman if he or she claims to have sustained injustice or hardship as a result of maladministration or service failure (as the case may be). It is not only individuals who can complain to the Ombudsman. So, for example, companies or other corporate bodies could complain to the Ombudsman. Listed authorities acting in their capacity as listed authorities cannot complain to the Ombudsman (clause 4(2)). Clause 5: Requirements: complaints made to the Ombudsman 25. Complaints to the Ombudsman must, generally, be made in writing (which would include by electronic means) (clause 5(1)(a)). However, under clause 2(4) the Ombudsman may decide to accept a complaint otherwise than in writing if he/she thinks it is reasonable to do so. For example, if the person aggrieved has a disability which makes it difficult for that person to make his or her complaint in writing, the Ombudsman has discretion to decide whether to accept an oral complaint instead. 26. Clause 5(1)(b) provides that the time-limit for making a complaint to the Ombudsman is one year from the day that the person aggrieved first has notice of the matters complained about. Again, under clause 2(4), the Ombudsman has discretion to consider a complaint made outside that time limit if he/she considers that in the circumstances of the case it is reasonable to do so. The Assembly has a power to make regulations modifying the application of the Bill to former family health service providers in Wales, former independent providers in Wales and former social landlords in Wales (clause 42). It is anticipated that this power may be used to vary, for example, the time-limit in respect of which complaints about the actions of such persons/bodies must be made to the Ombudsman. 27. Subject to the particular express requirements in the Bill it is for the Ombudsman to decide his own procedures and, in particular, clause 5(2) provides that it is for the Ombudsman to decide whether the requirements of clause 5 have been met in a particular case. Clause 6: Requirements: complaints referred to the Ombudsman 28. This clause provides that a listed authority can refer a complaint made to it to the Ombudsman but only if it is made by a person who would have been entitled to make that complaint directly to the Ombudsman. The complaint must also have been made to the authority within a year from the day that the person aggrieved first had notice of the matter complained of. Any such referral must be in writing and the referral must occur before the end of one year beginning on the day on which the complaint was made to the listed authority. Under clause 2(4) the Ombudsman may, for the purposes of accepting a referred complaint, disregard either (or both) of those time-limits (as described above) if he/she considers that it is reasonable to do so. Matters which may be investigated Clause 7: Matters which may be investigated 29. Clause 7(1) provides that the Ombudsman is, subject to clauses 8 to 11, entitled to investigate:
30. 'Relevant action' is defined in clause 7(3) and 'relevant service' is defined in clause 7(4). The definitions are designed to ensure that it is only the functions of listed authorities in, essentially, their public capacity that can be investigated. In the case of a listed authority that falls within clause 7(3)(e), the Ombudsman is entitled to investigate alleged maladministration in the discharge of that authority's administrative functions. The Assembly would be such an authority. Clause 7(3)(e) means, for instance, that the Ombudsman is not entitled to investigate the Assembly's legislative or judicial functions. In the case of a person added to Schedule 3 ("listed authorities") to the Bill, by order under clause 28(2), clause 7(3)(d) and (4)(d) provides that the Ombudsman is only entitled to investigate action which that person takes or a service which that person provides in the discharge of that person's functions which have been specified in the order as falling within the Ombudsman's remit. 31. The effect of subsection (6) is that where a listed authority appoints a person as a member of staff of a 'relevant tribunal', an administrative function of that person is treated as being an administrative function of the listed authority and so that function will fall within the remit of the Ombudsman. A 'relevant tribunal' means a tribunal specified by order made by the Assembly (clause 41(1)). Clause 8: Exclusion: matters not relating to Wales 32. Clause 8(1) provides that the Ombudsman cannot investigate a complaint relating to the discharge by a listed authority of its functions otherwise than in relation to Wales. Clause 8(2) makes it clear that this restriction does not apply in relation to the Assembly. The Assembly may exercise functions otherwise than in relation to Wales (e.g. the cross border functions referred to in paragraph 3 of Schedule 3 to the GOWA). 33. Clause 8(3) puts beyond doubt that any function of a listed authority in relation to the Welsh language or any other aspect of Welsh culture is to be regarded as being discharged in relation to Wales and is, therefore, not excluded from the Ombudsman's jurisdiction by clause 8(1). Clause 9: Exclusion: other remedies 34. In general, the Ombudsman cannot investigate a complaint about a matter if the person aggrieved has (or had) a right of appeal, reference or review (as specified) or a remedy by way of proceedings in a court of law (clause 9(1)). However, if the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person aggrieved to take up (or to have taken up) that right of appeal, reference, review or remedy, then the Ombudsman may choose to investigate the complaint (clause 9(2)). 35. Clause 9(3) and (4) provides that, unless the Ombudsman is satisfied that it is reasonable for him/her to investigate the matter without the following steps having been taken, then before the Ombudsman can investigate a matter he/she must be satisfied that:
Clause 10: Other excluded matters 36. Clause 10(1) provides that the Ombudsman cannot investigate the excluded matters set out in Schedule 2 to the Bill. Clause 10(2) allows the Assembly, by order, to add to, remove or alter the entries appearing, from time to time, in Schedule 2 to the Bill. Such an order is to be made by statutory instrument (clause 44(1)) and is to be regarded as Assembly general subordinate legislation (clause 44(3)). Consequently such orders will be subject to the Assembly's subordinate legislation procedures. Before making such an order, the Assembly must consult the Ombudsman (clause 10(3)). 37. Clause 10(4) puts beyond doubt that despite the exclusions in Schedule 2 the Ombudsman may investigate the operation by a listed authority of any procedure established to examine complaints or review decisions. So, for example, the Ombudsman is excluded from investigating a matter that relates to the determination of the amount of rent (paragraph 5 of Schedule 2 to the Bill). Clause 10(4) ensures that this does not prevent him from investigating the manner in which a complaint about the determination of rent was considered under an authority's complaints procedure. SCHEDULE 2: EXCLUDED MATTERS 38. This Schedule makes provision as to matters that are excluded from the Ombudsman's jurisdiction. Under clause 10(2), the Assembly may by order, add, remove or amend an entry appearing for the time being in this Schedule. Clause 11: Decisions taken without maladministration 39. Clause 11(1) provides that the Ombudsman cannot question the merits of any decision taken by a listed authority in the exercise of any discretion if that decision was taken without maladministration. Consequently, provided that there is no delay, bias, neglect, turpitude etc. in relation to the decision (including where the decision relates to alleged service failure), the Ombudsman is not entitled to question that decision. So, where a listed authority has, without maladministration, reached a policy decision in which it has weighed up all relevant matters (including, for example, resources), the Ombudsman is not entitled to question that decision. 40. However, by virtue of clause 11(2), clause 11(1) does not apply to the extent that a decision is taken in consequence of the exercise of professional judgement which appears to the Ombudsman to be exercisable in connection with the provision of:
This is intended to cover decisions taken in consequence of the exercise of clinical judgement (to reproduce the effect of section 3(7) of the Health Service Commissioners Act 1993). However, since clause 11(2) refers to decisions taken in consequence of the exercise of professional judgement which appears to the Ombudsman to be exercisable in connection with the provision of either health or social care, it is wider than section 3(7) of the 1993 Act, so extending the remit of the Ombudsman. Decisions not to investigate etc. Clause 12: Decisions not to investigate or to discontinue investigation 41. Clause 12(1) provides that the Ombudsman must prepare a statement of reasons in relation to any decision by him/her not to begin or to discontinue an investigation. This includes the situation where, under clause 3, the Ombudsman has resolved a complaint and therefore decided not to undertake an investigation. Under clause 12(2), the Ombudsman must send a copy of that statement to:
42. Under clause 12(3), the Ombudsman may send a copy of the statement to any other person. 43. The Ombudsman may publish such a statement if the requirements of clause 12(4) are met. The Ombudsman may only publish such a statement if he/she considers that it is in the public interest to do so. In reaching his/her view, the Ombudsman must take account of the interests of the person aggrieved and any other persons he/she thinks appropriate. 44. Clause 12(7) and (8) provides that when the Ombudsman prepares a statement that:
the Ombudsman may only include such information in the version of the statement that he/she is required or empowered to send or which he/she publishes if it is in the public interest to include such a name or identifying particulars. In reaching his/her view, the Ombudsman must have regard to the interests of the person aggrieved and any other persons he/she thinks appropriate. 45. In the case of the version of the statement that the Ombudsman is required to send, under clause 12(2), to the person who made the complaint and the listed authority, it is not anticipated that it would be difficult for the Ombudsman to show that it is in the public interest to include such information. This is because, in such cases, there is likely to be a strong public interest in those parties knowing the names and identities of persons that the Ombudsman considers it necessary to refer to in the statement. Indeed, in many cases such a statement is likely to name or identify only the person aggrieved, the listed authority that took the action which is the subject of the complaint, and those of its employees who are relevant (e.g. if the employee of the listed authority took the action complained of). Investigation procedure and evidence Clause 13: Investigation procedure 46. Clause 13(3) provides that, subject to the requirements in subsections (1) and (2) of that clause, it is for the Ombudsman to decide the procedure for conducting an investigation. The Ombudsman could, for example, establish different procedures for different types of complaints and he/she could, in any particular case, depart from any such established procedures if he/she considered it appropriate. 47. Clause 13(4)(a) makes it clear that the Ombudsman may make such inquiries as he/she thinks appropriate. Clause 13(4)(b) provides that it is for the Ombudsman to decide whether a person may be legally represented or be represented in some other way (e.g. by an independent advocate). 48. Clause 13(5) empowers the Ombudsman to make payments towards the expenses of persons assisting him/her in an investigation, provided that they are properly incurred, and to pay certain allowances. It is for the Ombudsman to determine whether it is appropriate to make such payments or to impose any conditions on such payments. 49. Clause 13(6) puts beyond doubt that the fact that the Ombudsman is investigating a matter does not affect the validity of any action taken by the listed authority in relation to the matter under investigation. Nor is any power or duty of the authority to take further action with respect to that matter affected. Clause 14: Information, documents and evidence 50. The Ombudsman has wide powers to require the production of information or documents in relation to an investigation (clause 14(1) and (2)) and to require certain persons to provide him/her with any facilities he/she may reasonably require (clause 14(3)). The latter provision may be needed, for example, if the Ombudsman were to require the use of certain computer hardware or software to view documents or information provided. 51. The Ombudsman has the same powers as the High Court in relation, amongst other things, to the taking of evidence from witnesses (clause 14(2)). 52. Clause 14(4) provides protection for those from whom the Ombudsman may require evidence or the production of information or documents. Such a person cannot be required by the Ombudsman to give any evidence or produce any documents which that person could not be compelled to give or produce before the High Court. 53. Clause 14(5) prevents information from being withheld by the Crown on the ground that it is subject to an obligation to keep it secret or a restriction on its disclosure. 54. The effect of clause 14(6) is that, in relation to the Ombudsman's power to require evidence or the production of information or documents, the Crown cannot rely on either its special privileges or immunities to defeat the Ombudsman's right of access to such information or on the protection that would otherwise be afforded by clause 14(4). |
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