4 Wider constitutional issues |
59. Government's official manual, Government Accounting
In the light of the investigation of a case, the
Parliamentary Ombudsman will decide whether complainants have
suffered injustice because of maladministration; and whether any
injustice has been, or will be, remedied. The Parliamentary Ombudsman's
findings on maladministration are final; there is no established
avenue of appeal.
There have been occasions when government has resisted
the Ombudsman's findings and recommendations, but these have been
extremely rare. The Secretary of State told us:
We have nothing but respect for the work of the Ombudsman.
In the last year she looked at something like 600 cases involving
the Department for Work and Pensions and we accepted every single
one of her recommendations in those cases.
Nevertheless, we have been increasingly concerned
at the possibility that the Government has been treating the Ombudsman's
reports less seriously than it should, and has been too eager
to contest them.
60. As we said at the outset, this is only the fourth
time that a report has been laid under section 10(3) of the Parliamentary
Commissioner Act. The first occasion was in Session 1977-78, and
concerned the Department of Transport's refusal to meet late claims
for compensation. The second was in session 1994-95, and related
to the refusal of the Department of Transport (once again) to
accept that it had acted maladministratively in dealing with extreme
hardship caused by blight which was exacerbated by delay in determining
the route of the Channel Tunnel Rail Link. In both cases, the
Government of the day ultimately agreed to compensate complainants.
61. The third case arose earlier this session, when
the Ombudsman laid a report A Debt of Honour, dealing with
ex-gratia payments to former civilian internees in the Far East.
We have examined both the section 10(3) reports laid this session.
We took the same approach in investigating the earlier report
as we have done to this. We cannot (and would not expect to) replicate
the Ombudsman's investigations, and we are confident in the evidence
she assembles, which is also revealed to the Government. This
does not mean that we automatically accept her findings without
making our own assessment of the Ombudsman's report, the Government's
response and the other evidence available. Our approach is to
test the Ombudsman's contentions thoroughly.
62. As our analysis of the pensions report above
shows, we consider the Ombudsman's findings in that instance were
well founded. In the case of the Debt of Honour report
our investigation led the MoD itself to discover that the Ombudsman
had been correct in suggesting that cases had been decided inconsistently,
and reasonable in recommending that there should be a review.
We concluded that "there is ample evidence to support the
Ombudsman's finding of maladministration."
63. Even before these two reports, there were signs
that the Government's relationship with the Ombudsman was changing.
Although HM Revenue and Customs did not formally dispute the Ombudsman's
findings in relation to Tax Credits, on 12 October 2005 Mr David
Varney, its Chairman, told the Treasury Sub-Committee "We
do not see it [automatic recovery of over payments] as a case
of maladministration and I have written to the Ombudsman saying
that". The Ombudsman
I have read Mr Varney's evidence to the Treasury
Sub-Committee last week and I am still unclear about the Revenue's
position in terms of my findings in that report and we are in
discussions. There are some very clear and direct statements made,
but, in dialogue with the Revenue, I am not sure that the situation
is entirely clear.
We understand that she remains in dialogue with the
Revenue about her recommendations.
64. The Ombudsman has been extremely measured in
her response to these developments. In her memorandum to the Committee
in October 2005, she simply drew attention to the Government's
rejection of the key findings in the Debt of Honour report.
In oral evidence on 20 October she was asked about whether there
was "growing resistance from the Government in terms of accepting
these recommendations". She responded:
I think the Debt of Honour report is highly exceptional.
That is one of the reasons I laid it before Parliament. In
my memorandum I have invited the Committee to reflect on the Government's
response because I think constitutionally it is significant and
it is highly exceptional.
We ourselves raised the issues again on 1 December,
when we asked whether the Ombudsman thought that "over the
years there has been a falling off in the way that governments
have seen your recommendations?" Once again, the Ombudsman
told us she saw the problem as an isolated incident:
I do not see in this a determined attempt by government
to resist the Ombudsman or to show disrespect for the Office.
I would say in all seriousness that in all the work we do we see
huge respect for the Office across government and in Parliament.
65. The Ombudsman's initial memorandum before we
took evidence on the Government response to Trusting in the
pensions promise had raised concerns that:
it is entirely inappropriate, within a system of
scrutiny of the way in which public bodies deal with citizens,
for those whose actions are subject to such scrutiny to seek to
over-ride the judgment of the independent arbiter established
by Parliament to act on its behalfand for the Department
for Work and Pensions' response to be merely to say that it does
not accept that judgment.
This goes to the heart of the Ombudsman systemand
of parliamentary scrutiny of the executiveand is a matter
on which the Committee may wish to reflect.
However, when we took oral evidence on 2 May, she
was still reluctant to consider that the DWP's response was part
of a wider malaise:
I do not have an uneasy relationship with the Government.
I go back to the whole body of work that my office does and the
whole body of relationships that we have. We are working in a
range of ways in addition to the cases that we investigate to
seek to make the positive contribution to improving public administration
and public services that Government says it wants my office to
make. We are working with the Cabinet Office and DWP on developing
principles of good administration, as I think the Committee knows.
there is a range of ways in which we have a relationship
with government which is positive and is not remotely uneasy.
When challenged on whether the Government was listening
to the Ombudsman, she responded:
I think I am saying it is listening most of the time.
There are cases that come along from time to time that are difficult,
that have a big price tag, that are inevitably going to be difficult.
The pensions report is one of them. The Ministry of Defence Debt
of Honour report is a different creature.
report is big and difficult. I have been disappointed by the Government
response, not so much by the fact of it but by the nature of it
and partly the fact of it, but I think it is exceptional and extraordinary.
It may just be that 10(3)s come along in clusters like these things
66. It is clear from this that the Ombudsman does
not assert that Government is challenging her constitutional position
lightly. Indeed, as this history of our questioning shows, this
Committee was concerned even before the Ombudsman made any complaint.
We therefore take it extremely seriously that the Ombudsman has
now told us:
12. There appears to be an emerging attitude
amongst Government departments that they can properly, and with
impunity, reject my independent assessment of their actions, and
my findings of maladministration.
13. As the Committee knows, the Chairman of Her
Majesty's Revenue and Customs told another Parliamentary Committee
that he did not accept my judgement that maladministration had
occurred in relation to the administration of tax credits.
14. The Permanent Secretary of the Home Office
has recently informed me that he does not accept my findings of
maladministration in relation to a number of immigration cases.
15. It would appear that DWP's response to this
report has given permission for a wider pattern of behaviour to
develop. If this becomes a general pattern, or a culture, I am
sure the Committee will agree that this can only undermine the
confidence and credibility that is necessary to ensure that the
Ombudsman's office can fulfil its role and purpose.
67. We share the Ombudsman's concerns. It is not
unprecedented for governments to reject findings of maladministration.
However, it is extremely rare. Moreover, precedent has shown that,
even when departments have denied that maladministration has occurred,
they have ultimately been willing to offer some recompense out
of respect for the Ombudsman's office. The series of rejections
of Ombudsman's reports is deeply troubling. This is the more so
since such responses are not decided by departments on their own,
but are raised in discussion across Government.
68. We also consider that this series of rejections
of Ombudsman's reports has been taken in a way which suggests
the Government is paying only lip service to the principle that
the Ombudsman's findings should be respected. In preparing for
our evidence session, the officials involved in the ex-gratia
scheme for former civilian internees met face-to-face. This was
apparently all that was needed for it to become clear that decisions
had not been taken consistently. If the Ministry of Defence had
taken the Ombudsman's report as seriously as it took our evidence
session, rather than brushing aside her calls for a review, it
would have realised its error much sooner. Similarly, despite
DWP's avowed respect for the Ombudsman, its response to the pensions
report was initially dismissive. On 15 March, the day the Ombudsman's
report was published, it produced a written Ministerial Statement,
and a Press Release in which the then Minister for Pensions, Stephen
Timms MP was quoted as saying:
We have studied the report carefully but we reject
its findings of maladministration. It simply does not make the
For the report to assert that the taxpayer should
make good all such losseshowever they aroseis a
huge and unsustainable leap of logic.
As we have seen, the assertion that the taxpayer
should make good all such losses is nowhere in the report. The
day after this initial statement, the Secretary of State made
an oral statement in the House, when he announced that: "The
Parliamentary Commissioner's report is a detailed piece of work
and, of course, deserves a proper, full and formal response. It
is my intention to publish such a response in the next few weeks."
We understand the Government's desire not to raise false hopes
among complainants, but its handling of the response caused outrage.
The Ombudsman herself told us:
That a full and proper response to my report, including
an assessment of what full redress might cost and analysis of
a range of ways of raising those costs, would take some time is
not a surprise to meand I do not criticise the Department
for Work and Pensions for taking approximately two months to complete
However, it is a matter of regret that this was not
recognised by the Department for Work and Pensions when my report
was published and when I offered them such a period in which to
reflect on my reportand that, instead, it gave an immediate
response, making claims that cannot be sustained as to what I
had found and recommended and what that might cost.
Mr Parr told us that what upset him most about the
the fact that there was no discussion of it. It was
a foregone conclusion. It took, I seem to remember, about
three minutes in the House, and that was all that was said about
it. I expected at least there to be some debate and some batting
the issue back and to, but it just vanished.
The way in which the Government responded to the
Ombudsman's report caused needless offence. It would have been
possible to respond speedily in a way which managed complainants'
expectations without this.
69. Throughout our discussions with the Ombudsman
she has shown a willingness to distinguish between findings of
maladministration, and recommendations about redress. While the
Ombudsman does not make recommendations lightly, it is clear that
she understands that the Government may:
reject recommendations that I may make, after proper
consideration of the public interest, and other calls on the public
purse, and any other relevant matters. That is a decision that
it is entitled to take, was one envisaged by Parliament when it
decided that I would not have powers to make binding recommendations,
and would be one for which the relevant Department would have
to account to Parliament.
We believe that such rejections should be rare, but
what causes the Ombudsman, and us, most concern, is the Government's
increasing willingness not just to dispute her recommendations,
but her findings of maladministration as well.
is not unprecedented for the Government to contest an Ombudsman's
finding of maladministration. It is, however, unprecedented for
there to be so many problems, in such a short space of time. Our
scrutiny leads us to conclude that the fault lies with the Government,
not the Ombudsman.
71. The Ombudsman told us:
the Department for Work and Pensions (DWP) continues
to assert that it can be the final arbiter of complaints about
its own actions. As the Committee will understand, this position
goes to the heart of the system of independent scrutiny of executive
action that Parliament has established; and to the confidence
that citizens can have that they will receive an effective scrutiny
of and outcome to their complaints.
We agree that if the Government routinely rejects
the Ombudsman's findings without good cause, public confidence
in the system will be undermined. The Government has recently
been too ready simply to reject findings of maladministration,
apparently without proper study of the Ombudsman's reports.
72. We understand the Government may face presentational
difficulties if it accepts a finding of maladministration, but
rejects recommendations for redress. However, we believe it should
look at the Ombudsman's findings without considering the potential
costs of recompense. The Ombudsman considers that "it is
inappropriate for a body under investigation to seek to override
the judgement of the independent arbiter established by Parliament
to act on its behalf."
Her advice to the DWP was robust: "it is maladministration,
get over it and let us get on to engagement with the real issues
here". In both
the cases we have examined this year, the Government would have
done far better to have accepted the Ombudsman's findings and,
in consequence, to have considered her recommendations properly.
Rather than spending time and effort on defending their position,
Departments would then have been able to discuss what remedies
could practically have been offered. At the heart of every case
of maladministration is someone who has suffered injustice. By
concentrating its energy on denying findings of maladministration,
rather than by considering what remedies might be practical and
proportionate, the Government has caused further distress to complainants.
It has delayed any resolution of their problems. We hope now that
the Government will engage with the Ombudsman positively, and
start from the presumption that it is her job to determine whether
or not maladministration has occurred, not its own.
73. As the Ombudsman said:
there is an important constitutional point here.
I think it is my job to determine maladministration. If I make
a finding which is wholly unreasonable that no reasonable ombudsman
can make, and people have, complainants have challenged that in
the High Court. Now, I am not suggesting for a moment that we
should all toddle off to the High Court on these issues, but seems
to me that there is a starting presumption that the Ombudsman
knows her job and if I say that there is maladministration, I
have not reached that view lightly and I do not expect the Government
or permanent secretaries to say, "We don't agree" and
walk away. They can argue with me, of course they can, and I may
not be right and this Committee may take the view that I have
done something completely off the wall.
but I think the
place for those discussions is not in the Government or in the
NHS where the Government somehow decides to pick and choose which
of my findings it likes. There is an important constitutional
principle here, it seems to me. This is Parliament's Ombudsman
and I am here for a purpose.
74. In its response to the Ombudsman's report, the
The Ombudsman has investigated the complaints put
to her in line with the Parliamentary Commissioner Act and has
reached a view that an injustice arose from what she considered
to be maladministration. She has quite properly reported her findings
to Parliament. In the same way, the Government has reported to
Parliament why it cannot accept them. It has been suggested that
the Government's course of action might be to have the Ombudsman's
opinion judicially reviewed, but the Government considers that
the proper approach in such a situation is to provide its response
The Government may be reluctant to use judicial review
to resolve its differences with the Ombudsman, but an application
for judicial review of the Government's own decision to reject
the Ombudsman's findings has been made by four of those affected
by the wind up of their pension schemes.
75. There are precedents for complainants asking
the court to review an Ombudsman's decision, but no such precedent
for a judicial review brought by Government. The Parliamentary
Commissioner Act was established to deal with maladministration;
ie, actions or failures which cannot be remedied in the courts
for either legal or practical reasons, but which nevertheless
cause injustice. To ask a court to review the Ombudsman's findings
would effectively make matters which are currently not justiciable
subject to judicial decision. In these circumstances Parliament's
role would be diminished to that of an interested bystander. We
believe that when there are disputes between Government and the
Ombudsman, Parliament is the proper place for them to be debated.
76. However, this system will only work if the Parliamentary
Ombudsman, the Government and Parliament share a broad common
understanding of what maladministration might be and who should
properly identify it. If it became clear that the Government routinely
considered rejection of a finding of maladministration, then that
common understanding would no longer exist. The first step towards
resolving such difficulties would be for the House to debate these
matters. However, if that failed, new legislation might be needed,
or the Government could attempt to use judicial review to establish
where current boundaries lie. We hope it will not come to that.
77. The Ombudsman's Office is currently working to
establish principles of good administration, which she hopes "will
be endorsed by all those who are responsible for both public service
delivery and for formulating the policies which underpin those
work may diminish some of the differences we have seen this year.
We will scrutinise its development and its reception by those
responsible for delivering services and formulating policy.
78. We share
the Ombudsman's concern that the Government has been far too ready
to dismiss her findings of maladministration. Our investigations
have shown that these findings were sound. It would be extremely
damaging if Government became accustomed simply to reject findings
of maladministration, especially if an investigation by this Committee
proved there was indeed a case to answer. It would raise fundamental
constitutional issues about the position of the Ombudsman and
the relationship between Parliament and the Executive.
79. We trust
that this Report will act as a warning to the Government. We will
continue to monitor the Government's responses to the Parliamentary
Commissioner's reports. If necessary we will seek a debate on
the floor of the House, so that all Members can discuss these
issues, and re-establish the Parliamentary Commissioner's role.
The Parliamentary Commissioner is Parliament's Ombudsman: Government
must respect her.
69 Government Accounting, Annex 18.1, para 5 Back
Q 136 Back
First Report of Session 2005-06, A Debt of Honour, HC 735,
para 37 Back
Minutes of Evidence Taken before the Treasury Committee (Treasury
Sub-Committee) HM Revenue & Customs: Spring Departmental
Report , Wednesday 12 October 2005, HC 524-ii Back
Second Report of Session 2005-06, Tax Credits: putting things
right, HC 577, Q 10 Back
HC(2005-06)577, Ev 3 Back
HC(2005-06)577, Q 10 Back
HC(2005-06)735, Q 2 Back
Ev 52 Back
Q 19 Back
Q 62 Back
Ev 54 Back
HC Deb, 16 March 2006, col 1620 Back
Ev 51 Back
Q 92 Back
Ev 52 Back
Ev 53 Back
Parliamentary and Health Service Ombudsman, Annual Report 2005-06:
Making a difference, HC 1363, p 4 Back
Q 253 Back
HC(2005-06)577, Q 43 Back
Government response, para 63 Back
The Queen (on the application of (1) Henry Bradley, (2) Robin
Duncan, (3) Andrew Parr, (4) Thomas Waugh) and The Secretary of
State for Work and Pensions Back
HC(2005-06)1363, p 5 Back