Examination of Witnesses (Questions 86-99)
MR ADAM
PEAT AND
MR ERIC
DRAKE
17 JANUARY 2005
Q86 Chairman: Welcome to this joint meeting
of the Welsh Assembly Committee and our Committee here, looking
at the Public Ombudsman for Wales Bill. There may be translation
in which case you have a translation set in front of you. The
channel is one. Could you introduce yourselves for the record,
please?
Mr Drake: My name is Eric Drake
and I am the Deputy Scottish Public Services Ombudsman.
Mr Peat: My name is Adam Peat
and I currently hold three offices as the Local Government Ombudsman
for Wales, the Health Service Commissioner for Wales and also
the Welsh Administration Ombudsman.
Q87 Chairman: Mr Peat, how will this
Bill impact on your job as Ombudsman in Wales?
Mr Peat: It will make it a great
deal easier because at the moment I have three different sets
of legislation that I have to operate to and my staff have to
be familiar with. Although the legislation all comes ultimately
from the same source, there are minor differences which make it
quite tricky to remember at all times clearly which set of provisions
one is operating.
Q88 Chairman: Is there anything in your
opinion that you would like to have seen in the Bill that is not
there?
Mr Peat: No, I do not think so.
As I said in my written evidence to you, I was a little concerned
about clause 11 which deals with my ability as the Health Service
Commissioner to assess matters of clinical judgment. I do feel
that that needs to be extended. One frequently sees health service
personnel operating alongside social services personnel from the
local authority these days in multi-agency, multidisciplinary
teams. It does seem to me I need to be able to look at the actions
of all members of those teams in exactly the same way but I do
take comfort from what was said in the House of Lords Second Reading
debate. The government are clearly prepared to consider an amendment
in that area.
Q89 Ms Barrett: The Bill states that
the Ombudsman's post will be a fixed term appointment set for
10 years. Do you think that is appropriate?
Mr Peat: Yes, I think so. The
current situation in respect of each of my appointments is that
they are appointments to age 65. That has been the previous pattern,
if you will, for UK public sector Ombudsmen, outwith Scotland.
I understand that the government no longer wishes to have age
specific provisions in Bills. It is against the current philosophy.
I think 10 years was a figure that was landed on as being a figure
that would effectively do what appointment to age 65 has done
before: give a sufficiently long period of appointment so that
the Ombudsman would not have to be concerned about what he or
she might have to do in order not to cause offence and not to
jeopardise their chances of reappointment. The two things go hand
in hand, the 10 years but also no possibility of reappointment.
Q90 Ms Barrett: The tenure for the Scottish
Ombudsman is set at a fixed five year appointment with the possibility
of extending it for another five years. I wonder if you could
tell us what you think the advantages or disadvantages might be
for that compared to the suggested tenure?
Mr Drake: The reality is that
there is very little difference from what is proposed for Wales
because the provision is for a term of five years with the probability
of a second five years, but almost certainly not a term beyond
that. It is effectively a 10 year appointment but the Scottish
Parliament chose to do it that way.
Q91 Ms Barrett: Do you see any obvious
advantages? I hear what you say but there is that get out clause,
if you like. Maybe one side could resign the post but it does
give that get out clause.
Mr Drake: We have not got to the
first five years yet so I cannot speak from experience but I cannot
see that there is any great, practical difference from what is
being proposed with the Welsh legislation.
Q92 Ms Randerson: I would be grateful
if both of you could answer this. Debates in the Scottish Parliament
on the Scottish Bill resulted in the extension of the Ombudsman's
powers beyond investigation of complaints against the exercise
of administrative functions to also include complaints about the
failure of a public authority in service delivery. On your reading
of the Bill, will the office in Wales have the power to investigate
failures in service delivery?
Mr Peat: Yes it will, very clearly.
That has been very specifically provided for. The one point that
I mentioned earlier is wanting to be able to look at complaints
about service failure in the same light, whether they are complaints
about the exercise of clinical judgment within the NHS or complaints
about a comparable, professional judgment by what might be, say,
a psychiatric social worker working alongside a psychiatric community
nurse. With that minor point of detail, I am satisfied and indeed
very pleased that the Bill does extend the ability to look at
complaints about service failure to all of the bodies that will
be inside the jurisdiction of public services Ombudsmen and to
do so in the same light and spirit.
Q93 Ms Randerson: Mr Drake, do you believe
that the powers for Wales will be parallel to those in Scotland
in that respect?
Mr Drake: Yes, I do. The argument
that happened in Scotland was very much what Adam has described.
The legislation governing the health Ombudsman has always had
that provision, that he could look at service failure. The discussion
in the Scottish Parliament was that it was illogical to have it
for one sector of the Scottish public services Ombudsman and not
for the rest of the jurisdiction. It is extended for us to cover
the whole of our jurisdiction and that seems to me eminently sensible
and appears to be what has been gone for in the Welsh legislation
too.
Q94 Ms Randerson: Mr Peat, in your evidence
you say that a formal investigation will be carried out where
appropriate. What do you believe will be the criteria for
determining whether a formal investigation is appropriate?
Mr Peat: The question I would
have to answer each time is: is there some wider lesson here that
needs to be learned or is what the body is alleged to have done
really so frightful that it ought to be made known to the public
if, when I investigate, the facts show that something has gone
very wrong. There are any number of cases that come to an Ombudsman
where frankly it is not like that. Yes, there has been maladministration.
Yes, somebody has been badly treated but it is essentially a one-off
slip up and the main thing is to see if one can sort that out
and get redress for the individual as quickly as possible. I am
very pleased with the provisions in the Bill that will make it
easier for me to look into things in a streamlined way and not
have to mount a formal investigation each and every time. I think
it is better to save the heavy guns for the times when they are
really needed.
Q95 Ms Barrett: Mr Peat, just looking
at the issue of service delivery and the extension of the powers
from just maladministration, a lot of people in the past have
been frustrated that the Ombudsman could only look at maladministration.
What could you do to prevent hundreds and hundreds of people coming
to you just to complain that their rubbish is not being collected
regularly? Surely that is something that the local councillor
or the chief executive, the director of the department, should
be dealing with? You would need, I presume, some sort of sifting
process so that you do not become a very expensive commodity,
looking at things that somebody else perhaps should be doing.
Mr Peat: Yes, absolutely. The
Bill provides for what is currently the situation. The Ombudsman
does not have to investigate any complaint that comes before him.
You have a discretion as to whether or not you are going to investigate.
That is the first point. Secondly, the legislation specifically
provides that I should not normally investigate a complaint unless
the complainant has first made some sort of attempt to bring the
thing they are complaining about to the attention of the authority
of whom they complain and asked them to sort it out. One would
normally be looking to see some evidence (a) that somebody had
something that appeared to be on the face of it worth complaining
about and (b) that they had been to the council, been to the NHS
trust, and made some attempt to get that body to put it right
first.
Q96 Mr Caton: While we are looking at
the remit of the new Ombudsman, as I understand it, in your current
capacity as a local government Ombudsman you are not empowered
to investigate community councils. Do you think we should be looking
at this Bill as an opportunity to extend your powers in that direction?
Mr Peat: At the present time,
I can look at allegations that a community councillor has broken
the statutory code of conduct for councillors but not, as you
rightly say, at complaints of maladministration. As I understand
it, the intention is that complaints of maladministration by community
councils will be within my remit as the public services Ombudsman
and the Bill specifically provides a mechanism by which the National
Assembly may, whenever it chooses, add any form of public body
in Wales to those bodies that I will be able to investigate. If
memory serves me, community councils are not explicitly named
on the face of the Bill as bodies that I would be able to investigate
a complaint of maladministration about but the intention is that,
if the National Assembly so chooses, a proposal will be brought
forward for the Assembly to consider.
Q97 Mr Caton: As I understand it, when
this post is created after the passage of this Bill, the
Ombudsman would not immediately be able to investigate a complaint
of maladministration against a community council until after the
Assembly has considered it and presumably extended the list in
the schedule?
Mr Peat: Yes.
Q98 Mr Caton: What sort of timescale
do you think that will be?
Mr Peat: That is very much a matter
for the National Assembly but it is certainly feasible in practice,
if the Assembly so chose, that that Assembly secondary legislation
could be in place by the time the Bill was brought into effect.
I am working on the assumption that, regardless of the date that
the Bill might achieve Royal Assent, it will probably not be brought
into force before 1 April 2006.
Q99 Mr Caton: Would you welcome the extension
of powers in that direction?
Mr Peat: Yes, I would. It is somewhat
illogical that there is no avenue for seeking redress and investigation
of a complaint of maladministration against a community council.
I do not think it is necessarily going to lead to a flood of new
cases and new investigations simply because the administrative
functions of community councils are so limited, apart perhaps
from a handful of those that were once in the distant past urban
district councils. In the main, community councils have very limited
administrative functions, as you know, and I think the scope for
complaint about them will be fairly small. That is no reason why
people should not be able to complain about them if indeed they
are capable of maladministration.
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