Local Government Ombudsman

Written evidence submitted by Brian Thompson

SUMMARY

· Introduction

· Fragmentation of Policy Development and Oversight

· Remit

· Complaint Resolution

· Improving Administration

· Corporate Matters

Introduction

1. This inquiry by the Communities & Local Government Select Committee into the Local Government Ombudsman for England (LGO) is a welcome initiative as the accountability arrangements for the LGO are weaker than for most of the UK’s Public Services Ombudsmen. With my colleagues I have conducted comparative research of public services ombudsmen in the UK, Ireland, Australia and New Zealand (Buck, Kirkham & Thompson, The Ombudsman Enterprise and Administrative Justice, 2011). This research focused on the role, methods, and relationships of the ombudsmen with other institutions in the emerging administrative justice system.

2. Some aspects of the LGO along with those of other ombudsmen in England and Wales were considered by the Law Commission for England and Wales in their report Public Services Ombudsmen, (Law Com No. 329, 2011). There were some recommendations in common made by my colleagues and I and the Law Commission, in particular, that there was need for a wider review of ombudsmen as institutions of administrative justice

Fragmentation of policy development and oversight

3. One of the reasons why my colleagues and I recommended a wider review of ombudsmen ( in our book and an article ‘Time for a "Leggatt-style" review of the Ombudsman system?’ [2011] Public Law 20-26) was that there had been piecemeal development from the first office, the Parliamentary Commissioner for Administration, usually referred to as the Parliamentary Ombudsman (PO). This subsequent development expanded the range of public services covered from central government through NHS administration to local government. The expansion happened first in Northern Ireland and then the rest of the UK.

4. There have been various reforms to the LGO since it was established in 1974, and in recent years, we have had a consolidated set of changes in the Local Government and Public Involvement in Health Act 2007, and then additional bodies and services brought within remit: aspects of internal management of schools by the Apprenticeships, Skills, Children and Learning Act 2009 and privately funded adult social care by the Health Act 2009. Although it seems that the current government wishes to have different arrangements for schools.

5. A more considered approach was to be seen in the 2000 Review of Public Sector Ombudsmen in England carried out by the Cabinet Office which had suggested merging the LGO, the PO and the Health Service Ombudsman for England (HSO). This restructuring was not carried out but the legislation of these three ombudsmen was amended by the Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007 which allowed them to work together on complaints which crossed their jurisdictional boundaries. The major areas in which collaboration, including joint investigations, have been carried out are in relation to health and social care.

6. While it is understandable that in particular service areas the relevant ombudsman overseeing them may develop differently, it is the case that the different ombudsmen are variations on the same institution and they share many common features. It was therefore odd when the Department for Communities and Local Government in the Localism Bill sought to require complainants to the Housing Ombudsman in England to be referred by a ‘designated person’. This provision was swimming against the tide as it is now extremely unusual not to allow direct access by complainants to ombudsmen. It was discussed in the Law Commission’s report where they were recommending the replacement of the requirement to have an MP to refer a complaint to the PO by ‘dual track’ access. Under this method of access it is up to complainants to decide if they wish to complain directly to the PO or seek the assistance of an MP who might refer the complaint. It remains to be seen how section 180 of the Localism Act 2011 will work following amendments which, in specified circumstances, will not require complainants to be referred by the ‘designated person’. In my view dual track access would have been preferable.

7. I suggest that this episode further confirms the conclusion of the analysis conducted by my colleagues and I, that policy development for ombudsmen is fragmented. While the Cabinet Office has a co-ordinating role generally on public services ombudsmen and takes the lead on the PO, DCLG leads on the LGO and the Housing Ombudsmen in England, the Department of Heath on the HSO and the devolved institutions in Scotland, Wales and Northern Ireland are responsible for the ombudsmen dealing with their devolved public services.

8. In addition public services ombudsmen are part of the administrative justice system which deals with redress for, and improvement of, people’s interactions with public services in which the primary responsibility in England and Wales lies with the Ministry of Justice. The Ministry of Justice has expertise in courts and tribunals but not in ombudsmen and there is concern as to whether the required high degree of co-ordination between the Ministry of Justice and the Cabinet Office on ombudsmen policy will be forthcoming, given the persistence of the ‘silo’ mentality throughout government.

9. Another important factor in the development of ombudsmen policy is the blurring of the public and the private sectors, already reflected in the LGO by its recent acquisition of complaints in relation to privately arranged or funded adult social care. I would suggest that this was a sensible change but it is different from the position that public services ombudsmen deal with public services whether delivered by public or private bodies. On the other hand developments in dealing with customer complaints in the private sector may also have implications for the public sector of which the relevant department is unaware.

10. Not only is there fragmentation in policy development for public services ombudsman but it is also to be found in their governance arrangements. My colleagues and I pointed out that it was desirable that the Parliaments in Westminster and Edinburgh, and the Assemblies in Cardiff and Belfast should improve their working relations with, and oversight of, the public services ombudsmen within their jurisdiction. We thought that the arrangements for the Parliamentary and Health Service Ombudsman which reports to, and is overseen by, the House of Commons Public Administration Select Committee were good, as did the Law Commission. We recommended that this Select Committee might carry out the same role for the LGO whereas the Law Commission recommended that Westminster and the National Assembly for Wales consider

establishing formal relationships between select committees and the public services ombudsmen, other than the Parliamentary Commissioner and the Health Service Ombudsman who already benefit from such relationships.

11. Our recommendation was based on the expertise which the Public Administration Select Committee had in public services ombudsman matters and that its remit was a cross-cutting and not a departmental one. This, however, would not preclude departmental select committees from having a formal relationship with the ombudsmen, which could take into account the fact that the range of public services which the LGO deals with is wider than the remits of the departmental select committees. Examples of the LGO’s jurisdiction include: housing and planning which are within the remit of the Communities and Local Government Select Committee, as well as social care, schools and transport which are of interest to the Health, Education and Transport Select Committees respectively.

12. There is a balance which has to be achieved in ombudsman policy development between generic matters and issues particular to the remits of the different public services ombudsmen. The fragmentation of responsibility within and across the different jurisdictions of the UK make it more difficult to co-ordinate a review which would focus on generic issues and their relationship with points in the various service areas responsibility for which will differ across the UK’s jurisdictions.

13. The issue of the accountability arrangements for the public services ombudsmen is a matter for UK’s Parliaments and Assemblies, although some general principles might be generated in the proposed wider review. While the particularities of which select committees might establish relationships have to be worked out, it would not be adding to the problems of piecemeal development if the LGO and Housing Ombudsman were authorised to lay the full range of their reports before Parliament as recommended by the Law Commission.

Remit

14. As has been noted above the LGO has recently been authorised to deal with complaints about privately funded or arranged adult social care. This does take the LGO into the private sector but it is surely a sensible arrangement to take advantage of the LGO’s experience in handling complaints about children’s and public adult social care.

15. The LGO can consider complaints about public services commissioned by local authorities but delivered by private bodies and following the white paper Open Public Services (Cm 8145) it is government policy to promote a choice of providers of these services. It is the role of ombudsmen to be independent and impartial handlers of complaints about the quality of the services rather than to champion the promotion of a choice of service providers which, it is suggested, is a matter for regulation.

Complaint Resolution

16. The LGO Advice Team based at Coventry is the initial point of contact for enquirers and complainants using the telephone and they offer advice about making a complaint as well as receiving complaints. The provision of advice not only includes tips on how to make a complaint but also directing people to other possible sources of help if the matter is outside the LGO’s jurisdiction. When dealing with a complaint they check if the complainant has given the council (or other body within jurisdiction) a reasonable opportunity to deal with the complaint, and if they have the case may be forwarded to an investigative team for further action.

17. The LGO pioneered expanding the way in which complaints are resolved by discontinuing an investigation if a satisfactory response had been made. In our book my colleagues and I recommended that complaint resolution be enhanced in line with the powers to be found in section 3 of the Public Services Ombudsman (Wales) Act 2007. We noted that in relation to the PO, HSO and LGO the 2007 Regulatory Reform Order authorised the appointment of a mediator and this was a drawing back from a wider power initially proposed in the consultation exercise which preceded the Regulatory Reform Order.

18. The Law Commission in their 2011 report recommended that an equivalent of the Welsh provision be included in the legislation for the other public services ombudsmen. Given that the statistics for 2011-11 show a rise in complaints which is not just attributable to the new jurisdiction of privately funded or arranged adult social care, then the LGO’s prediction in their annual report for 2010-11 that this is likely to be a continuing trend, is probably accurate as people will have greater recourse to services, and certainly demographic changes mean that more older adults will be placed in care institutions. This along with the combination of the economic downturn and the reduction in expenditure on public services is likely to lead to increased pressure on these services and a consequent rise in complaints.

Improving Administration

19. There are a variety of ways in which the LGO can seek to improve administration. Proposals can be made in the recommendations to resolve an individual complaint. A digest of cases can disseminate more widely the lessons learned from individual complaints and special reports can be published which distil points of guidance on particular topics drawn from a number of reports. The LGO’s latest version of such themed reports begun in 2011 are called Focus Reports, and concentrate on particular subjects of complaint with recommendations on good practice.

20. Another activity in which the LGO was the pioneering ombudsman in the UK is the provision of training in complaints handling. The LGO provides written guidance on this but it is suggested that training is likely to be a more effective way of improving councils’ handling of complaints. If councils handle complaints better, then the result should be quicker resolution and also the gaining of insight which, if followed up, can enable them to get things right first time.

21. One recommendation made by my colleagues and I is to confer on ombudsmen the power to conduct investigations on their own initiative. In our research we found that none of the UK ombudsmen had such a power but that their counterparts in Australia, New Zealand and Ireland did, and that they could not conceive of doing their job without it. This power enabled them to conduct investigations into systemic issues without having to wait for them to be raised in a complaint. The LGO’s powers were amended with effect from 2008 so as to allow an investigation of matters arising in an investigation. This is a ‘half-way house’ to our recommended own initiative power of investigation. The experience in Australia, New Zealand and Ireland is that the power is not used frequently but that it can be helpful, particularly where there is a type of complainant who is less likely to be able to make a complaint, for example, a vulnerable person.

Corporate Matters

22. In common with local government the LGO has the challenge of coping with significant reductions in its budget. The Summary Statement of their Strategic Business Review published by the LGO in September 2011 considers not only efficiency savings but also making quality improvements. In terms of savings these include a reduction in staffing in senior grades, including not appointing a replacement for Sir Tony Redmond, eventual relocation to Coventry, and changes in practice including the processes for determining cases suitable for investigation, the way in which investigators are deployed on investigations, and seeking to maximise the reach of the insight derived from their handling of complaints.

23. It is essential that a body which is seeking to help others improve, practises what it preaches. The LGO has a good record of being a reflective organisation and being innovative. There is tension between efficiency and effectiveness. People who persist with their complaints to the LGO have to be determined and since the LGO is the ultimate rung on the ladder of complaining, they will want to be assured that the LGO has considered their case properly. Some complainants will be aggrieved if their case is not taken up or does not result in the outcome they desire. The LGO does have a review process in which some decisions can be reconsidered and where the decision is confirmed, as it usually is, the complainant’s dissatisfaction will now include the LGO.

24. If, as seems likely, public expenditure cuts in local government lead to an increase in complaints to the LGO, then the LGO has to ensure that its efforts to work effectively and efficiently within a reduced budget do not impair the service it provides. Possible complainants’ dissatisfaction with its service can be reduced by being clear about what the LGO can and cannot do. It is to be hoped that efficiency pressures do not reduce the reasonable help which the Advice Team can offer to those whose complaints are outside their jurisdiction and that the handling of complaints can be perceived as fair even though it did not achieve the complainant’s desired result. The LGO like all public services ombudsmen is seeking to remedy injustice and this has both tangible and intangible aspects which must be reflected in its resources.

25. In conclusion I invite the Committee to consider endorsing the recommendations of Law Commission, its call for a wider review as well as the specific ones on the LGO’s reporting practices and possible relationship with Parliament, and its powers of complaint resolution. I also invite the committee to consider the power of own initiative investigation and to be assured that the LGO is efficient and economic in its use of resources and has the appropriate level of resources to be effective as an institution of the administrative justice system.

Brian Thompson

March 2012