Localism Bill

Memorandum submitted by the British and Irish Ombudsman Association (L 140)

The Localism Bill

Evidence to the Bill Committee

1. Summary

I am writing on behalf of the British and Irish Ombudsman Association (BIOA), the body which promotes and safeguards the Ombudsman institution in the UK and the Republic of Ireland. I am writing in respect of the Localism Bill which was presented to Parliament on 13 December and which is now undergoing its Committee stage in the House of Commons.

We have some serious concerns about provisions in the Bill relating to proposed changes to the Housing Ombudsman Service (HOS) and to the Local Government Ombudsman (LGO), both of which are full members of BIOA and currently accord fully with the criteria for the recognition of Ombudsman schemes. We wish to bring these concerns (shown below) to the attention of the Bill Committee as written evidence.

2. The ‘democratic filter’ for housing complaints

Public service ombudsmen form an integral part of the administrative justice system and it is essential that citizens’ access to justice should be unfettered. Any restriction on access is counter to the principles upon which the ombudsman institution is founded. The office of Ombudsman was developed in order to enable citizens to have independent and objective consideration of their complaints. There is unhindered access to public service ombudsmen throughout Europe with the sole exception of the UK, and indeed, in the UK, there is direct access to the Health and Local Government Ombudsmen in England, the Public Service Ombudsmen in Scotland and Wales and legislation is currently being considered in Northern Ireland to remove the MLA filter.

However, we believe that the proposal as currently drafted is a retrograde step and would reduce the access of citizens to justice. We fully support, as do all Ombudsmen, the role of MPs and Councillors in advocating on behalf of their constituents, making complaints on their behalf and contributing to local resolution. The involvement of tenants’ panels locally also has the potential to promote improved learning from complaints.

It is important to stress that all public services ombudsmen actively promote local resolution. The Local Government Ombudsman’s "Council First" initiative is mirrored in the work of all other schemes, and in all but the most exceptional circumstances, complainants are strongly encouraged to give the body subject to the complaint the opportunity to resolve it before an ombudsman will commence an investigation.

In summary, we believe that restricting access to ombudsmen by the introduction of a filtering scheme would undermine the rights of the citizen and would not in practice achieve more local resolution of complaints.

3. Binding powers

We also have concerns about the possible introduction of binding powers for Ombudsmen, The public service ombudsman institution in the UK has operated entirely successfully without binding powers up to now. There are only a tiny number of cases where bodies in jurisdiction have failed to implement recommendations and the ability of ombudsman schemes to publish reports publicly highlighting non-compliance is a powerful persuasive measure.

In some instances, the findings of Ombudsmen are regarded as binding, and only susceptible to challenge through judicial review. This has been confirmed by the courts in respect of the Local Government Ombudsman, for example. This reflects the role of ombudsmen as part of the administrative justice system.

Recommendations, however, are a matter for the body in jurisdiction to consider and to respond as they see fit, but usually within a clear democratic mandate. Thus, for example, the recommendations of the Parliamentary Ombudsman are considered by Her Majesty’s Government and scrutinised by Parliament.

The nature of the relationship between ombudsmen and bodies in jurisdiction would be markedly changed by the introduction of binding powers, as the Bill proposes for the Housing Ombudsman Service. An inquisitorial approach would be replaced by an adversarial one; persuasion would be replaced by costly litigation. It is likely that there would be many more instances of bodies seeking to judicially review the decisions of ombudsmen. The role of Parliament and local authorities would, in part, be transferred to the courts. BIOA does not believe that this is a desirable development.

Finally, such a move would effectively prevent public service ombudsmen from conducting joint investigations, as joint recommendations, which are currently both possible and desirable, would be precluded as it would be necessary to produce separate recommendations stating which are binding and which not. Ultimately, this will lead to separate investigations and an end to the current arrangements.

4. The ‘one-stop shop’

We have some concerns about the practicalities of transferring all social housing complaints to HOS, principally in that this could adversely affect the one-stop shop approach to local government complaints.

5. Conclusion

BIOA’s view is that the potentially adverse impacts of the measures proposed are not offset by likely improvements. In practice, the greater involvement of tenant and elected representatives in complaints can be achieved within the context of the landlords’ complaints mechanisms, and without restricting access to ombudsmen. Indeed, many complainants are already effectively supported by their MPs and councillors in resolving their concerns. Similarly, the evidence strongly suggests that there is no need to introduce binding decisions, as almost all recommendations are implemented in practice, and the changed nature of the relationship between an ombudsman and bodies in jurisdiction would have many adverse impacts.

We would be happy to provide more information if required or to explain our concerns in person to the Committee.

February 2011