1. Written evidence from the Wales
Office and the Welsh Assembly Government
PURPOSE
1. This memorandum is in response to the
invitation of the Welsh Affairs Committee and the Local Government
and Public Services Committee of the National Assembly for Wales
to give evidence to its joint inquiry into the Public Services
Ombudsman (Wales) Bill.
SUMMARY OF
BILL
2. The Public Services Ombudsman (Wales)
Bill will bring together the separate offices of the Commission
for Local Administration in Wales (which includes the Local Commissioner),
the Health Service Commissioner for Wales, the Welsh Administration
Ombudsman and, when established, the Social Housing Ombudsman
for Wales into a unified office led by a single individual—the
Public Services Ombudsman for Wales (PSOW).
3. It will provide a modern flexible and
accessible service for members of the public who wish to complain
about a wide range of public service providers operating in relation
to Wales. This will be achieved through harmonising the respective
jurisdictions of the existing Welsh ombudsmen to provide for dealing
with complaints about maladministration and service failure and,
in relation to local authorities in Wales, allegations that an
elected member or employee of an authority has contravened that
authority's Code of Conduct.
4. It will provide clear powers to facilitate
joint working between the PSOW and other ombudsmen for the investigation
of cross-jurisdictional complaints (Clause 24). It will also empower
the PSOW to take action other than a full investigation to facilitate
a resolution of a complaint (Clause 3). These powers will enable
the PSOW to provide a more efficient, effective and timely service
to both members of the public and public service providers.
BACKGROUND
5. Public sector ombudsmen have served the
citizens of Wales well, but there is now a strong case for change.
6. The legislation that currently provides
for the existing offices was enacted separately for the different
ombudsmen, the assumption then being that a particular service
would be the particular responsibility of local government, central
or devolved government or the National Health Service. The effect
of this is that there are differences between the statutory provisions
relating to each of the separate offices that are largely out
of date in the current environment where there is often a multi-service
approach to the provision of public services. From a policy and
operational perspective this means that the legislation inhibits
the development of a properly coherent and effective Ombudsman's
service in Wales. From the citizen's perspective, the increasing
emphasis being placed on "joined-up" services provided
through partnerships between different public bodies, means that
an individual citizen may have dealings with several different
public bodies in relation to a particular case. It follows that
if an individual is dissatisfied about some aspect of a service
provided, it may not be easy to identify which public body has
been responsible for the alleged failure and so to which ombudsman
a complaint should be submitted.
7. Against that background Ministers are
committed to ensuring that the valuable service the ombudsmen
provide can continue not only now but also into the future, with
a new legislative framework to support the development of a joined-up
service.
CONSULTATION
8. In March 2001 the Secretary of State
for Wales jointly announced with the First Minister that there
would be a review of public sector ombudsman services in Wales.
The purpose would be to consider whether the present arrangements
met the needs of our citizens in the 21st century and allowed
the service to evolve in step with the changing face of public
sector service delivery in Wales.
9. The provisional view of the Secretary
of State and the First Minister was that there should be one ombudsman
for Wales. In reaching this view they recognised a recommendation
made by the National Assembly Advisory Group which, in its 1998
report said, "We welcome the creation of a new office of
Welsh Administration Ombudsman, and note that the office can be
held simultaneously with that of the Health Services Commissioner
for Wales. We recommend that consideration be given in due course
to both offices, and that of the Local Government Commissioner
for Wales being held by the same person . . ."
10. In December 2002 The Wales Office jointly
published with the Assembly "Ombudsmen's Services In Wales:
Time for change?", a consultation document on the principle
of bringing together the offices of Commission for Local Administration
in Wales (which includes the Local Commissioner), Welsh Administration
Ombudsman and Health Service Commission for Wales into a unified
service led by a single individual. The proposal does not include
the office of the Parliamentary Commissioner for Administration
as that post-holder is an officer of the House of Commons.
11. The proposal received widespread support
and in October 2003 a consultation document on the detailed powers
and jurisdiction of that new office, entitled, "A Public
Services Ombudsman for Wales: Powers and Jurisdiction" was
published.
12. The proposal for a PSOW has unanimous
cross party support in the National Assembly for Wales.
13. As an interim step to achieving the
longer term policy objective the Regulatory Reform (Local Commissioner
for Wales) Order 2004 removed a restriction in the Local Government
Act 1974 the effect of which was to prevent a single individual
from simultaneously holding the three existing offices in Wales.
This has allowed the Government to take advantage of an opportunity
that arose when the office of the Commission for Local Administration
in Wales (which includes the Local Commissioner), the Health Service
Commissioner for Wales and the Welsh Administration Ombudsman
all fell vacant in 2003 to appoint the same person to each office.
In its scrutiny of this Order the House of Commons Regulatory
Reform Committee recommended that a Public Services Ombudsman
(Wales) Bill should be included in the legislative programme for
the 2004-05 Session (HC553).
POLICY
Jurisdiction
14. The PSOW's jurisdiction in relation
to listed authorities (Clause 27 with Schedule 3) will (unless
any exclusions from jurisdiction apply) be to investigate complaints
about injustice or hardship (Clause 4) in the consequence of (Clause
7):
(a) Maladministration by or on behalf of
a listed authority in connection with "relevant action".
Maladministration is not defined but it is a well established
concept and includes delay; bias; neglect etc—the Crossman
catalogue. (In piloting the 1967 Act through Parliament, the then
leader of the House of Commons, Richard Crossman, referred to
maladministration as "bias, neglect, inattention, delay,
incompetence, ineptitude, perversity, turpitude and arbitrariness".
This became known as the Crossman Catalogue. (Hansard House
of Commons 18 October 1996 col 51).)
(b) Service failure. A failure in a service
provided by or on behalf of a listed authority is not defined
in the Bill but both failure to provide a service and a failure
in that service itself are captured.
15. The PSOW can also consider allegations
that an elected member or employee of a local authority has breached
his/her authority's Code of Conduct (Clause 34 with Schedule 4).
16. The PSOW will not be able to investigate
certain matters listed in Schedule 2 in addition to which he or
she may not:
— Investigate complaints about legislative
or judicial functions of bodies like the Assembly. (This is not
a specific exclusion but a consequence of the fact that relevant
action by a listed authority is defined as action taken in the
discharge of administrative functions, which excludes legislative
or judicial functions (Clause 7(3)(e)).
— Investigate a complaint where the
aggrieved person has (or had):
— a right of appeal, reference or review
before a statutory tribunal;
— a right of appeal to a Minister of
the Crown or the Assembly; and
— a remedy in a court of law.
except where he or she considers it reasonable
to do so (Clause 9).
— Investigate a complaint the
genesis for which is more than 12 months old (Clause 5) or where
the body concerned has not had an opportunity to consider the
complaint (Clause 9) although he or she can exercise a discretion
to do so in relation to either.
— Question the merits of a discretionary
decision taken without maladministration unless it is in consequence
of the exercise of clinical judgement (Clause 11).
Investigation of complaints
17. The PSOW may only investigate a complaint
if it has been made in writing to him or her by the aggrieved
person, by a person authorised by the aggrieved to act on their
behalf or, if the aggrieved person is not capable of doing so,
by any person whom the PSOW is satisfied is an appropriate person
to act on behalf of that person (Clause 4). The PSOW can exercise
his or her discretion to consider a complaint which has not been
made in writing if satisfied that there are special circumstances
which make it reasonable for it not to have been made in writing
(Clause 2(4) and Clause 5).
18. A listed authority may refer to the
PSOW a complaint that it has received from an aggrieved person
(Clause 6) but they cannot make a complaint to the PSOW. Neither
can a nationally owned industry or undertaking, a body whose members
are appointed by Her Majesty, a Minister of the Crown or the Assembly,
or a body whose revenue consists wholly or mainly of money provided
by government make a complaint to the PSOW.
19. It is for the PSOW to decide whether
to begin or discontinue an investigation. The PSOW has a wide
discretion as to the procedure for dealing with complaints within
his or her jurisdiction. If a complaint is withdrawn the PSOW
may still begin or continue with the investigation (Clause 2).
20. If the PSOW decides not to begin an
investigation or decides to discontinue an investigation because,
for example, the PSOW has resolved the complaint under Clause
13, he or she must prepare a statement setting out the reasons
for this decision and send it to the complainant and the listed
authority concerned. When the PSOW considers that it is in the
public interest to do so he or she may publish a copy of the statement.
When the PSOW issues or decides to publish a statement it must
be in a form that will not name or identify the complainant or
any other person except the listed authority, unless, having had
regard to the interests of the aggrieved person or any other person,
the PSOW considers that it is in the public interest to do so
(Clause 12).
21. The Bill requires that the PSOW consults
certain other ombudsmen where a complaint includes a matter that
may be investigated by that other ombudsman. Where the PSOW so
consults, the PSOW will also be able to carry out a joint investigation
with the ombudsman concerned, except for the Scottish Public Services
Ombudsman (SPSO), and report jointly on that investigation. Those
ombudsmen with whom the PSOW can consult and co-operate can be
added to by means of an Assembly Order but the SPSO, having been
excluded, cannot now be included for the purposes of joint investigation
and reporting (Clause 24).
22. For the purposes of undertaking an investigation
the PSOW has wide powers to make inquiries and request access
to people and documents (Clause 13). The PSOW has the same powers
as the High Court in respect of obtaining information/documents
and the attendance/examination of witnesses (Clause 14).
23. Information obtained by or on behalf
of the PSOW in connection with a complaint must be kept confidential.
It can only be disclosed in limited circumstances, for example,
where there is a threat to the health and safety of one or more
persons (Clause 25). If, however, a Minister of the Crown considers
that disclosure of certain information would be prejudicial to
the safety of the State or contrary to the public interest he
or she may give the PSOW notice to that effect. If such a notice
is given then neither the PSOW or a member of the PSOW's staff
etc. can disclose the information under this Bill (Clause 26).
24. The PSOW will however still be required
to comply with the Freedom of Information Act 2000, the Data Protection
Act 1998 and other statutory access to information regimes (such
as the Environmental Information Regulations) (Clause 25).
25. If a person without lawful excuse obstructs
the PSOW in the discharge of his or her functions the PSOW can
certify that to the High Court. If the High Court considers the
matter and finds that an obstruction or contempt has occurred
then that person can be dealt with by the High Court as if in
contempt of court (Clause 15).
Reporting
26. The reporting options being provided
by this Bill will allow for reports of investigations to be produced,
and failings scrutinised, in a way that is proportionate to the
complaint. There will be two methods of reporting on an investigation:
(i) The full reporting procedure whereby
a formal report on an investigation is sent principally to the
complainant and the listed authority although the PSOW can send
a copy to whomever he/she considers appropriate (Clause 16). This
is underpinned by a power for the PSOW to issue a special report
if the report is not responded to or acted upon satisfactorily
(Clause 21). The body concerned must respond to the report within
1 month unless the PSOW agrees an extension of time (Clause 19)
and will be required, within a certain timescale, to make the
report available to the public for copying/inspection, including
downloading, without payment, from a website (Clause 17).
(ii) The alternative reporting procedure
where after investigation the PSOW decides that the aggrieved
person has not sustained injustice or hardship in consequence
of the matter investigated or, where he or she has concluded that
such injustice/hardship has been suffered, the listed authority
has agreed to implement his or her recommendations and the public
interest does not warrant the full procedure (Clause 20). Similarly,
this is underpinned by a power for PSOW to issue a special report
if the report is not acted upon satisfactorily (Clause 21)
27. These reports must not name any person
or allow any person to be identified except the listed authority
being complained about unless, having regard to the interests
of the aggrieved person and any other person (as the PSOW considers
appropriate), the PSOW considers that it is in the public interest
to do so.
28. In addition to reporting on investigations,
the PSOW must also produce an annual report on the discharge of
his or her functions and may produce an extraordinary report in
respect of those functions as necessary (Schedule 1, paragraph
14).
Guidance, redress and enforcement
29. The PSOW will be able to issue guidance
to listed authorities on good administrative practices as the
PSOW considers appropriate (Clause 30).
30. A listed authority may make a payment
to or provide any other benefit for the complainant regardless
of whether the PSOW has decided not to investigate a complaint,
had discontinued an investigation or not upheld a complaint (Clause
33) but where the PSOW has made a recommendation for redress there
is no power to enforce that recommendation.
The office of PSOW
31. The PSOW will be appointed by Her Majesty
for a single fixed term of 10 years. The PSOW can however be relieved/removed
from office by Her Majesty at the PSOW's request or, after consulting
the Assembly, on recommendation of the Secretary of State for
reasons of misbehaviour or incapacity due to medical reasons.
If the office falls vacant there is provision for an acting PSOW
to be appointed (Schedule 1, paragraphs 1-4).
32. Certain people, essentially any person
who is a member of a listed authority, are disqualified from being
the PSOW or an acting PSOW. Conversely, a person who has held
office as PSOW or acting PSOW is disqualified for a period of
three years from being appointed to/ becoming a listed authority
but that does not apply to offices held as a consequence of a
democratic election process (Schedule 1, paragraph 5).
33. The office will be funded by the National
Assembly (Schedule 1, paragraphs 9-10) but the PSOW will be the
Accounting Officer for the purposes of maintaining (subject to
directions by HM Treasury) accounts, and for the regularity and
propriety of, expenditure for the office and for submitting those
accounts to the Auditor General for Wales (Schedule 1, paragraphs
16-20).
34. The PSOW will be able to recruit staff
necessary to undertake the functions of office and obtain advice
from any person to assist in the discharge of his or her functions.
Neither the PSOW or the staff will be civil servants but they
will be Crown servants for the purposes of the Official Secrets
Act. The PSOW also has wide powers to delegate the functions of
office. (Schedule 1, paragraphs 11-13).
Consequential amendments
35. This Bill will make a number of consequential
amendments (Schedule 6) but of note is that made to the Local
Government Act 2000.
36. Clause 34 with Schedule 4 confers on
the PSOW the functions of the Local Commissioner (of the Commission
for Local Administration in Wales) in relation to the investigation
of allegations of misconduct by local government members and employees
in Wales.
37. At the same time paragraph 22 of Schedule
4 remedies an anomaly that exists whereby relevant authorities
in Wales have to notify the Standards Board in England when they
have established a register of members' interests. At present
they do not have to notify the Local Commissioner even though
investigations of allegations of misconduct by local government
members and employees in Wales falls to the Local Commissioner
not the Standards Board in England. The Bill provides for relevant
authorities in Wales to notify the PSOW.
38. Police authorities in Wales will however
have to notify both the Standards Board in England and the PSOW
because it is the Standards Board in England that is responsible
for issuing guidance on matters relating to the conduct of members
of police authorities in both England and Wales.
CONCLUSION
39. We would like to thank the Committees
for this opportunity to present written evidence to inform their
inquiry into the Public Services Ombudsman (Wales) Bill. We hope
that it will assist the Committees in their scrutiny of the Bill
and of the examination of witnesses.
40. We look forward to the Committees' conclusions
and will give serious consideration to any recommendations that
the Committees make in relation to this Bill.
Don Touhig MP, Parliamentary
Under Secretary of State for Wales
Sue Essex AM, Minister
for Finance, Local Government and Public Services
6 January 2004
| 
