Examination of Witnesses (Questions 100-119)
MR ADAM
PEAT AND
MR ERIC
DRAKE
17 JANUARY 2005
Q100 Mr Caton: One of the reasons I ask
the question is because there is some evidence that the government
is looking to extend responsibility of community councils, particularly
in the field of antisocial behaviour. It seemed an appropriate
time to look at whether the Ombudsman's function should be extended
as well. I am very glad to hear that you look forward to that
happening.
Mr Peat: Yes. My memory has just
been jogged. I apologise. I inadvertently misled the Committee.
Community councils are expressly on the face of the Bill at line
32 on page 23. There was some discussion earlier as to whether
they would be on the face of the Bill or would be left for later
Assembly legislation. We will be able to investigate from the
outset.
Q101 Mr Caton: They are not one of the
listed authorities under Schedule three, unless they are counted
as a local authority.
Mr Peat: That is precisely what
the provision at lines 30 to 33 on page 23 of the Bill does. It
says, "Local authority in Wales means a county council, a
county borough council or community council in Wales."
Q102 Mr Williams: In her written evidence
to us, Ann Abraham stated that cross border issues—that
is, public health and civil defence—will require joint working
and cooperation between Ombudsmen. Will there be any formal mechanism
for cooperation and joint working or will this be an informal
agreement?
Mr Peat: I am sorry; could you
repeat that?
Q103 Mr Williams: We were told by Ann
Abraham that on cross border issues such as public health and
civil defence there may be joint working between Ombudsmen in
England and Wales. The question is will that be a formal mechanism
or an informal mechanism?
Mr Peat: I think it will be both.
This Bill provides specifically powers for the public service
Ombudsman for Wales to cooperate with other Ombudsmen in the UK.
What it does not do is to provide those other Ombudsmen with a
reciprocal power. I understand that that may have to be the subject
of a regulatory reform order in due course. There is an excellent
working relationship between myself and the other public service
Ombudsmen in the UK, both with Professor Alice Brown in Scotland,
with Ann Abraham and indeed with the local government Ombudsman
in England. All of us would always have a focus on the complainant
and trying to sort things out for a complainant by cooperating
as best the statutory powers that were available to us would allow.
Q104 Mr Williams: A number of powers
are or have been transferred from Westminster to the Assembly,
not specific powers, but allowing the Assembly to use its staff
to carry out those functions in Wales. If there was a complaint
about that type of service, would it be appropriate to use the
Welsh Ombudsman because the service was being delivered in Wales
by the Assembly or a Parliamentary Ombudsman because the powers
of those things remain with Westminster?
Mr Peat: My understanding is that
under this Bill any administrative action of the Welsh Assembly
would be subject to my scrutiny rather than to that of the Parliamentary
Ombudsman.
Q105 Mr Williams: In particular, there
is concern about cross border issues as far as health is concerned
with people living in one country and having the service in another
or being part of a GP surgery in one of the other countries. We
are told about that from the Board of Community Health Councils.
Are you confident that the Bill ensures that these concerns are
clearly and adequately addressed?
Mr Peat: The Bill specifically
empowers the public services Ombudsman for Wales to carry out
a joint investigation with the health service Commissioner for
England. What is less clear is the power that the health service
Commissioner for England has to reciprocate, but the intention
of both myself and Ann Abraham is clear and we are clear too that
this is a real issue, particularly along that long border and
particularly in the area of Powys. There is a great deal of to-ing
and fro-ing between the GP's surgery in Wales and the hospital
in Shrewsbury and so on. We certainly would, between us, look
to investigate jointly. I am sure we could achieve that at least.
Until such time as Ann Abraham as the health service Commissioner
for England was given a formal power, we might not be able to
produce a single, joint report at the end but two reports produced
together on the same day, to be read together, we certainly could
manage.
Q106 Mr Williams: On behalf of the complainant,
is it necessary to have a joint inquiry? Could not the responsibility
or the function be given to one Ombudsman? It seems to me that
in the complainant's mind why should they be bothered with this
complexity.
Mr Peat: I hope that in practice
what will happen is that the complainant will treat me as a one
stop shop. They will bring their complaint to me. If I think there
is some aspect of it that needs to be looked at by another Ombudsman,
I would seek the complainant's agreement to get that other
Ombudsman involved, but I certainly would not tell them that they
had to go away and make out a whole new complaint. I want to offer
a seamless service and I know that my Ombudsman colleagues elsewhere
in the UK would be very happy to cooperate in that.
Q107 Chairman: Mr Peat, in your written
evidence to us you said that you were particularly keen to be
able to consider synoptically complaints about the actions of
multi-agency, multi-disciplinary teams which are common nowadays
in fields such as care in the community. That is an area where
you felt that the Bill could be improved. Can you expand on that?
Mr Peat: Yes. I think I have already
referred to that. That is clause 11 of the Bill. It says two things.
The first thing it says is that the Ombudsman may not question
the merits of the decision taken without maladministration by
a listed authority in the exercise of a discretion. Then it goes
on to say, "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 clinical judgment." In other words, I
can look at whether the GP did the wrong thing in prescribing
Aspirin for your child's meningitis without having to consider
whether that was or was not maladministration. I am asking myself
as a question about the exercise of clinical judgment: was there
or was there not a service failure here? I think I need to be
able to apply the same sort of yardstick when I am looking at
the actions of social workers and of people who are assessing
children's special educational needs. It is all one nexus. As
far as the family is concerned, it may all be one problem. It
needs to be looked at together in the same way. I am encouraged
by what the government has so far said about their willingness
to look again at the wording of the Bill in this area.
Q108 Mrs Williams: (Translated from Welsh)
You touched on this matter when Mr Williams asked you a question
about joint inquiries. The Bill prohibits the Welsh ombudsman
from conducting and reporting on joint inquiries with the ombudsman
in Scotland. Can you anticipate any circumstances where it would
be worthwhile for you to conduct joint enquiries? I am putting
the question to both of you.
Mr Peat: Yes. In principle, I
can. The geography makes it very much less likely to happen at
all frequently in practice. One example that comes to my mind
is the possibility that perhaps an elderly person who has been
in the care of a social services authority in Scotland might move
to Wales to be closer to their family. Therefore, they come under
the care of a social services department in Wales. Somewhere,
something goes wrong with the transfer arrangements and each authority
is blaming the other for what went wrong. I am constructing a
hypothetical example but you can see that it would be quite difficult
to get to the bottom of that, if I and the public services Ombudsman
for Scotland did not cooperate at least informally. The Bill does
not make any specific provision for me to operate jointly with
Scotland. I would have preferred it to but probably in practice
we would get by on an informal basis.
Q109 Mrs Williams: (Translated from Welsh)
You have just said that you would welcome it. Do you wish to express
that in stronger terms?
Mr Peat: What I would like to
see is that I would have the power to cooperate in a like manner
and undertake joint investigations with any of the other statutory
Ombudsmen in the UK. It is certainly not due to any reluctance
on my part in any way to cooperate with the public services Ombudsman
for Scotland, with whom I have a very close working relationship.
I am very grateful to Alice Brown for all of the practical help
and advice that she has given me to date.
Mr Drake: Speaking from the Scottish
point of view, I would entirely agree with that. We take the same
position. My understanding for why that particular provision is
there is that the Scottish Executive feels that, because of the
terms of the devolution settlement in Scotland, it would cause
difficulties if there were joint investigations by the Scottish
Ombudsman who is answerable to Scottish Parliament and the Welsh
Ombudsman who is not. I am not a constitutional expert. I do not
pretend to understand the basis for those concerns but practically
they are unlikely to cause us significant problems given that
we have the other provisions for cooperation with the Welsh Ombudsman
and we have good relations and cooperate on a number of things
already. We would also on the whole have preferred to have exactly
the same provisions for all Ombudsmen.
Q110 Mr Lloyd: (Translated from Welsh)
Thank you, Chair. I have a question for Mr Eric Drake. With your
experience of dealing with complaints in Scotland, what powers
do you have to ensure that your decisions are acted upon, so that
your recommendations are followed through? What powers do you
have to determine compensation in individual cases?
Mr Drake: The formal position
is that we can only make recommendations. We cannot require bodies
to implement our recommendations. There is a provision in our
legislation that, as the legislation puts it, if we find hardship
or injustice caused by maladministration or service failure that
has not been remedied, we can make a special report to that effect
to the Scottish Parliament. We can also require the body complained
against to meet the cost of that report and any giving of publicity
to it that we think is appropriate. That could be quite a useful
lever to persuade bodies to do what we want them to. In practice,
in the two years that we have existed, we have not had to resort
to that. Although on a couple of occasions bodies have quibbled
initially about recommendations, they have always seen the light
eventually and done what we said, so it seems to work.
Q111 Mr Lloyd: Following on from that,
I have a further question for Mr Drake. Do you think that the
situation is perfectly satisfactory, or does the system need to
be strengthened?
Mr Drake: Putting it briefly,
it is a satisfactory situation. We see no problems with it. We
think it might cause difficulties if we had enforcement powers
because it would put us in a rather different position from where
we are at the moment.
Q112 Mr Lloyd: Mr Peat, in your experience,
considering this new Ombudsman, do you believe that the Ombudsman
has sufficient powers to secure adequate redress for the individual
or does the Bill need to be strengthened in this regard?
Mr Peat: Drawing not only on my
own rather brief experience to date but also on that of my predecessors,
there does not seem to be any problem in practice about getting
public bodies in Wales to comply with an Ombudsman's recommendation.
There is sometimes a degree of grumbling and reluctance at first
but when you persist and if necessary make it clear that you would
go to the issue of a second report, they comply. The provisions
in this Bill for the public services Ombudsman for Wales to issue
a special report are very close to the arrangements which Eric
has described for Scotland. There has been no occasion in recent
history when it has proved necessary to issue a special, further
report. The mechanics in practice are going to be satisfactory.
Providing a power of compulsion would frankly be overkill and
might jeopardise what is currently a generally very cooperative
relationship with local government in particular.
Q113 Ms Randerson: The Bill refers to
the fact that a 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. Mr Peat, in your
experience, do you think one year is a sufficiently long time,
given the protracted nature of the way in which some public bodies
deal with complaints? How do you take the definition of a complaint
because people very often make an informal complaint, for example,
to a local authority and it is ages down the line before they
make the formal complaint.
Mr Peat: One year would certainly
be unreasonably short if this was a rigid requirement but the
Bill gives me a very wide measure of discretion to accept complaints
after the period of one year has elapsed. The Bill is also more
flexible than the provision of some of the existing Ombudsman
legislation. The NHS legislation in particular currently states
that the complainant should normally have "invoked and exhausted"
the NHS complaints procedure before they come to me. Anybody who
has ever come across the NHS complaints procedure will recognise
that it is as likely to be the procedure that exhausts the complainant
as the other way around. I do have a wide measure of discretion
to take complaints early. The only requirement in respect of the
complainant having first used the complaints procedure is a very
flexibly worded one: that they will first have drawn the matter
complained of to the notice of the authority and given them an
opportunity to put matters right. Those may not be the very words
but they are close. I have a complete discretion to decide to
take up a complaint, either out of time or before the complaints
process of the authority itself has finished. If the complainant
feels they are not getting anywhere, they can come to me and I
can exercise my discretion to pick that up. Given all of that,
I am happy with the time limit of one year. It does make sense
to have some sort of time limit and, as a matter of practical
common sense, the longer somebody leaves it before they come to
me the harder it becomes to investigate and get to the bottom
of the facts.
Q114 Ms Randerson: Mr Drake, do you have
a similar provision in the Scottish legislation? Are you finding
it satisfactory?
Mr Drake: We do. Our legislation
has carried over that unfortunate "invoked and exhausted"
wording from the old health Ombudsman's legislation and is much
more worded in terms of taking the complaint through formal complaints
procedures. The more flexible arrangements that Adam has described
are highly desirable but we do also have discretion to take complaints
that either have not completed a process or have not been raised
at all. We do use that if we think somebody is being messed about
in an internal complaints procedure. The flexible wording that
is going to be in the Welsh legislation is highly desirable.
Q115 Mr Caton: In responding to the questions
about securing proper redress, you have both given the strong
impression that you think statutory enforcement powers would be
counterproductive and you, Mr Drake, said they would put you in
a different position which you thought would create difficulties.
Could you both expand on that a little more, about the negative
impact of having statutory enforcement powers?
Mr Drake: The position for us
is very much as Adam has described. We have a generally cooperative
relationship with the bodies within our jurisdiction and if we
had enforcement powers it is possible that that relationship would
be affected. That to some extent is speculation but I start from
the basis that it is not broken so we do not need to fix it. It
does seem to work pretty well as it is at the moment.
Mr Peat: That is essentially my
position too. It works as a matter of practice. The Bill in this
respect is squarely within the British Ombudsman tradition. To
put provision in to make my recommendations enforceable would
not bring any practical benefit but would have the effect of making
the Bill controversial in a way that perhaps it need not be.
Q116 Hywel Williams (Translated from
Welsh): Thank you very much, Chair. This is a question for Mr
Peat. In its written evidence, the Welsh Language Board welcomes
the fact that the ombudsman has the power to investigate failures
to comply with the Welsh Language Act 1993, as an example of maladministration.
Can you explain the relationship between the Welsh Language Board
and yourself as ombudsman, and how would you manage the joint
interest that you would shares in such cases?
Mr Peat: I have seen the evidence
that the Welsh Language Board submitted and I find myself very
much in agreement with what they have had to say to you. It is
the case that if an authority departs from its stated Welsh language
scheme that is potentially maladministration. I can investigate
it. Equally, there is provision for complaints to be made direct
to the Welsh Language Board so I think there will be some small
overlap of jurisdiction. It is probably better to have a degree
of overlap than a crack down which things might fall. Probably
what will be necessary in practice and does not need to be provided
for on the face of the Bill is that the Welsh Language Board and
I might enter into some sort of concordat about what types of
case we would take and perhaps, in relation to an individual complaint
should it arise, we might need to have discussion with them.
Q117 Hywel Williams: (Translated from
Welsh): It is the Assembly's intention to change the Welsh Language
Board's status and to bring it in-house, leaving some functions
to the dyfarnydd. Do you anticipate any difference if that
were to happen?
Mr Peat: I do not think that is
likely to make a very major difference. It might be in practice
that I would have rather more investigative machinery at my disposal.
It might at the margin make it easier and more appropriate for
me to take rather more of the investigations perhaps and the part
of the Welsh Assembly that takes over the function of the Welsh
Language Board to handle a little less.
Q118 Hywel Williams: (Translated from
Welsh): I will conclude with one further question, if I may. In
its evidence, the Welsh Language Board stated that failure to
ensure the language choice of an individual could be construed
as maladministration or failure. This is a detailed brief. Would
you go so far as to say that it is an example of maladministration
or failure?
Mr Peat: For me, it all depends
on what the authority in question has put into its defined Welsh
language scheme. Maladministration in this context consists in
failure to adhere to your own published policies. That is what
I would be looking at.
Q119 Ms Dunwoody-Kneafsey: Mr Peat, how
do you intend to increase the public profile, raise public awareness
and maximise accessibility to your office?
Mr Peat: That is a very good question
and one that I have spent some time thinking about. The very act
of bringing the three offices together and having one Ombudsman
will create a much clearer public profile. It will be much easier
to explain to the public. Once we have that, we will need to produce
a range of much more user friendly publicity material, leaflets
and so on than we currently have. I look at one or two of the
leaflets that we currently have and shudder a bit because they
seem to spend so much time explaining to members of the public
what I cannot do rather than what I can do for them. I want to
overhaul all of that but, at the end of the day, there is a real
problem about publicising the office, short of spending large
sums of the taxpayers' money on advertisements and so on. It is
not as though I am trying to persuade somebody to buy a new packet
of washing powder next week. I need them to be vaguely aware that
there is an Ombudsman who might be able to do something for them
perhaps when they have a grouse five years down the line. Research
that has been done jointly by the Parliamentary Ombudsman and
the local government Ombudsman in England has shown pretty clearly
that there is a much higher level of public awareness of front
line advice agencies like Citizens' Advice than there is of the
existence of an Ombudsman's service. One of my primary tactics
is going to be working alongside organisations like Citizens'
Advice, like Welsh Women's Aid, like some of the ethnic minority
community organisations, to ensure that all of their front line
advice workers know absolutely about the Ombudsman's service and
what we could do for people so that they will steer people who
come to them, who they think could benefit from our investigations,
to come to us. That is going to be the most practical, pragmatic
way of doing it. I should add that I am very pleased that this
Bill has borrowed a particular provision from the Scottish Ombudsman's
scheme. That is to say that any body which has had a complaint
from a member of the public and is saying to that member of the
public, "I am sorry, chum, you have reached the end of the
road. This is as far as we go with the complaints procedure",
will have to say to the complainant in the same breath, "You
do have the right to go to the Ombudsman." I think that is
very important.
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