CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1626 -i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Public Administration Committee

The Work of the Parliamentary and Health Service Ombudsman

Tuesday 29 November 2011

ANN ABRAHAM, KATHYRN HUDSON AND BILL RICHARDSON

Evidence heard in Public Questions 1 - 106

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

The transcript is an approved formal record of these proceedings.

Oral Evidence

Taken before the Public Administration Committee

on Tuesday 29 November 2011

Members present

Mr Bernard Jenkin (Chair)

Alun Cairns

Robert Halfon

David Heyes

Greg Mulholland

Lindsay Roy

________________

Examination of Witnesses

Witnesses: Ann Abraham, Parliamentary Commissioner for Administration and Health Service Commissioner for England, Kathryn Hudson, Deputy Ombudsman, and Bill Richardson, Deputy Chief Executive, gave evidence.

Q1 Chair : Welcome to this annual review of the work of the Parliamentary and Health Service Ombudsman. Welcome especially to Ann Abraham; this will be your last appearance before this Committee and your chance to be a loose cannon.

Ann Abraham: If that is the invitation, I will see what I have got.

Chair : Could you confirm your identities for the record please ?

Ann Abraham: I am Ann Abraham and I am the Parliamentary and Health Service Ombudsman.

Bill Richardson: I am Bill Richardson, Deputy Chief Executive.

Kathryn Hudson: Kathryn Hudson, Deputy Ombudsman.

Chair : We are going to start by going straight to the MP filter question , because one or two people have to leave early today due to the Autumn Statement. I ask Mr Halfon to lead on this.

Q2 Robert Halfon: Good morning. Do you think that the Parliamentary Ombudsman needs to be democratised properly and the MP filter removed so that the individual citizen has direct access?

Ann Abraham: I certainly believe there should be direct access to the Parliamentary Ombudsman. I do like to think that the Parliamentary Ombudsman has quite an important role to play in democracy as currently constituted. I do think that our Report on the consultation that we conducted this year-and I have been very grateful for the support of the Committee on the thinking around this-has made a very clear case for reform, in that there is strong consensus in the response we received: 85% supported direct access. There were some very interesting responses in there, including from the Office of Fair Trading and the National Audit Office, as well as substantial number of bodies in jurisdiction. I think the case is made.

I think the challenge, and it is a real challenge, is to convince parliamentarians that direct access to the Parliamentary Ombudsman can be achieved without disturbing the relationship between my office and Parliament, and between a constituent and their MP. That is the challenge that we now face.

Q3 Robert Halfon: Why do you think the Government are slightly reluctant to democratise the Ombudsman?

Ann Abraham: My observation of governments, law making and changes in the law is that governments tend to shy away from things they think are controversial. If Government could be persuaded that this was not controversial, that might give us a smoother path.

Q4 Robert Halfon: I n your report, you surveyed a number of MPs . Only 17 responded, which is a shame. However, it seems to show that they were also opposed to removing the MP filter. Why do you think that is?

Ann Abraham: First I should say that, as I discussed with the Chairman, the focus of this consultation was not going to be on parliamentarians, and I hope that the discussion we had about using both our report on the wider public consultation and the work that the Committee has been able to do over the past few months will enable the Committee and my office now to go on and conduct a joint survey of MPs, informed by this report and the work of the Committee. I think the survey of MPs is yet to come and will be hugely enabled by the groundwork that has been done over the last six months. We will see.

Last time there was a joint survey between my office and the Committee, two thirds of MPs were in favour. It is one of my disappointments-I don’t really "do" regret, but I do disappointment-that in my term of office we have come very close to removing the MP filter and not quite got there. I hope that work will carry on and the Committee will play a very active part in it.

Q5 Robert Halfon: Do you think one way you could get around any objections is , if you democratise it and remove the MP filter, somebody who approached you directly would then inform the MP that you were dealing with this particular case? In other words, it would be the other way round, so to speak.

Ann Abraham: My view is that we should keep it simple. We should do what happens everywhere else in the world and just allow unfettered, direct access to the Parliamentary Ombudsman. We should not over-engineer it with other legislative requirements or constraints. I come back to the challenge about the importance of the relationship between a constituent and their MP; nobody is trying to disturb that. Everybody respects that. I just do not think we should build in legislative complications to make things happen that ought to be happening in any event.

Q6 Robert Halfon: What do you say to the Sir Humphrey view against democratisation: it would increase your work load and you would not have the resources to do it?

Ann Abraham: I have said before that I do not think that any increase in work load would be unmanageable. The office is well organised and well equipped now to deal with any cases that come to us directly. We deal with lots of people who come to us directly now, and give them advice on how the system works. I think it is entirely manageable.

In any event, one of the objections that I saw in a previous attempt to remove the MP filter was from a Government Minister who was saying, "If you remove the MP filter, more people will find their way to the Ombudsman." Yes-and what would be wrong with that then? I am on record as saying I think it is manageable.

Q7 Robert Halfon: If it happened and legislation was brought through, would you then ask for more resources to do it?

Ann Abraham: I would not and I would certainly advise my successor that she did not need to.

Q8 Robert Halfon: Do you think it is perfectly manageable to do under the existing -

Ann Abraham: I absolutely do.

Q9 Robert Halfon: Have you done any modelling to look at the implications of removing the MP filter?

Ann Abraham: We have not. I suppose I am relying on my extensive knowledge of the office and how it works, and the ability to respond to and accommodate change. If you think of the work we did when the NHS reforms happened, we took on another 10,000 cases and we equipped ourselves to do that. I think it is entirely doable. If it became a real prospect, we would do the detailed planning that we needed to do to get the right people in the right place, at the right time, to deal with the work.

Q10 Greg Mulholland: Good morning. I cannot see if the figures are in there, but in 2010-11, of the cases that were closed without being taken to further assessment or formal investigation, 9,242 were classed as "not properly made". How many of those were not properly made because they had not gone through the MP? That would be useful for us to know.

Ann Abraham: I have not got that figure in my head at the moment. I suspect that Kathryn doesn’t, either. There are two "not properly made" categorisations. One is about health complaints not made in writing and the other is the MP one. I do not have the figure in my head. I am not going to try to remember it, but I can certainly write and let you know.

Greg Mulholland: Let us know. That would be an important breakdown to make in the report every year: why cases were rejected for not being properly made. That would be useful.

Ann Abraham: That is a good point and we can do that. It is a substantial number, I can say that.

Q11 Chair : Is it true to say that MPs use the Ombudsman in very different ways , to very different degrees ?

Ann Abraham: Absolutely so. I think 95% of MPs use the Ombudsman, or at least refer cases to the Ombudsman, so there is a small number who do not. Just from listening to MPs, and I have listened to a lot of MPs over the years, and reading their responses to the consultation and the previous survey, it is very clear that they do use the Ombudsman in very different ways.

Q12 Chair : Can you describe that?

Ann Abraham: If a constituent says, "Please refer this to the Parliamentary Ombudsman," there are a handful of MPs who do so without any great scrutiny. I have heard people say that. Sometimes that means that people are referred to us for matters that are not even within remit, like public service personnel matters. That is one end of the spectrum.

Others will do what I expect MPs do routinely, and again I have heard MPs say this. They will take a view that this is too early for the Parliamentary Ombudsman, and they will try to resolve it directly with the Government Department concerned. Sometimes they will be successful in that. Sometimes MPs will take a view that the case does not have merit. So there is differential access.

Q13 Chair : You suggested that 5% of MPs do not refer anything to you.

Ann Abraham: Yes.

Q14 Chair : Do you know why that is?

Ann Abraham: No, we have not asked them directly.

Q15 Chair : Would it not be a good idea?

Ann Abraham: We could do that. Maybe we could do that in the survey.

Q16 Chair : Are n’t we making a mountain out of a mole hill? Is n’t this really a no- brainer , about removing the MP filter?

Ann Abraham: Yes.

Q17 Chair : Is it going to change the constitutional relationship between Parliament and its electors?

Ann Abraham: No.

Q18 Chair : Doesn’t the NHS world already have direct access?

Ann Abraham: So it does, so does the Local Government Ombudsman, so do citizens complaining about public services in Scotland and Wales; they are about to do it in Northern Ireland. I think we are hanging on to something for reasons that really are now-

Q19 Chair : Will there be direct access to this new H ousing Ombudsman?

Ann Abraham: I suppose that is an example, for me, of making life more complicated for people who are seeking redress. What we have now is a bit of a hybrid, in that you can have direct access but you have to wait for it. That just seems to be over-engineered and unnecessarily complicated.

Q20 Chair : Is there a need for a new Housing Ombudsman? Shouldn’t it just be part of your remit?

Ann Abraham: No, we have a Housing Ombudsman. There is quite a lot of discussion at the moment around the Housing Ombudsman for England’s remit and the Local Government Ombudsman in England, and moving jurisdiction around housing matters between the two of them. That is absolutely live. We certainly do not need any more Ombudsmen. I believe the Law Commission’s call for a wide-ranging, fundamental review is a good call, and one that has come at the end of a very long study they have done.

Q21 Chair : We are going to come to that later. My last question on the MP filter is: do you feel that the average citizen has equal access to the Ombudsman under the present arrangements?

Ann Abraham: No.

Q22 Chair : That is because?

Ann Abraham: That is because MPs actually do exactly what it says on the tin. They filter, but they filter in different ways. Therefore there is differential access depending on a range of factors, some of which will be to do with the diligence of the MP and some will be the opposite. I come back to this: why shouldn’t citizens have direct access to the Parliamentary Ombudsman in the UK when citizens everywhere else in the world have that direct access?

Q23 Chair : Including in Scotland and Wales?

Ann Abraham: Including in Scotland and Wales in terms of the Public Service Ombudsman, yes.

Q24 Robert Halfon: Can I just quote two MPs in your report? The first one says your office would be "i nu nd ated with spurious cases, usually a s a re sult of knee- jerk reaction to a public body or agency decision " .

Chair : I know who that is.

Robert Halfon: I do not agree with that, but could you give a response to that?

Ann Abraham: I just do not believe it is so.

Q25 Robert Halfon: Why?

Ann Abraham: Experience. Again, from time to time there are all sorts of things that happen in the press that result in a flurry of calls to the office. We deal with that, whether it is a tax credit scandal, an issue with HMRC, or there is something going on at the UK Border Agency. We have a robust customer services department used to dealing with those spikes that come about either because something is going on in a Government Department, or, indeed-I don’t know if you remember but some years ago there was the Channel 4 Big Brother racist row. We had lots of calls about that. It was nothing to do with us, but it was one of the things that an office that is equipped to deal with lots of telephone calls and lots of concerned people is able to respond well to.

Q26 Robert Halfon: John Spellar says, and I just want to get you on the record on this, "At a time of considerable constraints in public spending, I think it would be extremely unwise for the Ombudsman to replace an MP referral." Just to confirm on the record, you do not think you would need an increase in spending if you removed the MP filter?

Ann Abraham: Absolutely.

Q27 Chair : There is no evidence, is there, of the Welsh and Scottish Ombudsmen being inundated with lots of vexatious and time-consuming complaints?

Ann Abraham: None whatsoever.

Q28 Chair : So the evidence would seem to be there.

Ann Abraham: I think so.

Q29 Chair : I am sure this Committee is going to come to a view on this matter. Can we now turn to your work over the year and your performance targets? On the face of it, they are very impressive. Perhaps they are not stretching enough. One or two cannot be stretched. If you acknowledge an email inquiry within one working day, that would seem to be pretty reasonable. There are other targets that perhaps could be made more onerous in order to improve your performance even more. Are they a bit un-stretching?

Ann Abraham: If you talk to my staff-and I am sure if you ask Kathryn-they would not say they were un-stretching. A lot of hard work has gone into delivering the performance that we delivered in 2010-11. In terms of stretching I would refer you back to the picture a year before then. I think we are stretching ourselves. In 2009-10 we responded to 78% of inquires within 40 working days, and we got that up to 91% in 2010-11. In 2009-10 we concluded 65% of investigations within 12 months; in 2010-11 we did 88%, which is just short of our 90% standard. You can detect continuous improvement in there. We still have the challenge of the investigation standard. The nature of the work we do makes that always a challenging target.

We talk about these things at my advisory board and we talked about them recently, as to whether it might be time to have another look at our targets and our customer service standards, and my successor may want to do that. I would put alongside that the importance of customer feedback and customer satisfaction. You can always do things more quickly, but that does not mean you are necessarily doing a better job. I think we have to balance out the quantity and the throughput against the quality of what we do. I suppose I would ask the Committee to look at our performance in the round against all of our performance indicators, rather than simply the time targets.

Q30 Lindsay Roy: That is very interesting because, in the report on Government complaint handling, you identified a focus on process rather than outcome as the third most common complaint. How are you addressing that concern?

Ann Abraham: I am addressing that concern by producing a report to Parliament on it. I went to talk to one of the Wednesday morning meetings of the Permanent Secretaries last week to talk directly with them about it. What I actually said, having given them the headlines of my report, is, "What are you going to do about it?" They did undertake to provide a response to the report, which I hope this Committee might like to follow up on.

Q31 Lindsay Roy: As far as I understand it, customer service targets again seem to relate solely to process. Is that right?

Ann Abraham: Our customer service standards are around throughput times, but if you look at our strategic plan and our 10 key performance indicators, what you will see-I have to find the right page here, so I can give you the right information -is that performance against customer service standards on the throughput is one of them, but customer service satisfaction ratings is another. What complainants say about our decisions is another. Excellent customer service is a rounded measure rather than simply about throughput.

Q32 Lindsay Roy: So customer satisfaction would be an outcome - related KPI?

Ann Abraham: Absolutely so.

Q33 Chair : In your report you say that a number of your cases do not require further assessment because they were swiftly resolved. Nevertheless, you are not able to identify which of those cases showed evidence of substantive maladministration. Isn’t that something you should be able to report to Parliament?

Ann Abraham: It is an interesting question, because of course we only make findings of maladministration and service failure when we conduct a formal investigation and we make a report. There are lots of cases where we see clear indications of maladministration and service failure. In terms of the outcome that is sought by the complainant, we are able to get that outcome and that resolution quickly and swiftly.

Q34 Chair : You are not really reporting cases of maladministration; you are reporting cases of maladministration that have not been resolved by the usual complaints process. Would that be a more accurate description of what you are reporting on?

Ann Abraham: In that particular category of our work, that may well be right. The interesting question then is the feedback that comes out of those cases, which will usually take the form of a decision letter to the complainant and, because of the constraints of our legislation, often that decision letter will not go in full to the body in jurisdiction. However, we are able to capture key points and provide feedback. We have done a lot of work on that with the NHS, we have regular dialogue with Government bodies, and our assessors and our assessment managers are feeding back all the time to bodies in jurisdiction.

What we have not yet done is started to do comprehensive reporting into the public domain of that area of our work. If we get the legislative changes in the Health and Social Care Bill that we hope we will get, that will free us up to do a bit more of that. We would also need something similar in the Parliamentary jurisdiction. We talked about that earlier. But we capture a lot of data; we capture a lot of information about what is going on in that assessment work. Maybe we need to do some more thinking around how much of that we are able to share for the benefit of learning.

Q35 Chair : Ms Hudson, do you want to contribute to this?

Kathryn Hudson: I think that is absolutely right. There is some thinking going on concerning that. We could develop that further. Certainly the change in the legislation would make a difference to our ability to do so.

Q36 Chair : Exactly what change in legislation is required?

Ann Abraham: The Secretary of State for Health has agreed to include in the Health and Social Care Bill provisions that enable the Ombudsman to share information obtained in the course of investigation with anybody she sees fit, rather than simply with the complainant. That mirrors the Welsh Ombudsman’s jurisdiction, which is a more modern jurisdiction. We are hoping that, if we can get the health legislation through, we can just mirror that in the Parliamentary Ombudsman’s jurisdiction. We talked about it briefly last time. It is a small thing. I do not think it means there is nothing we can do in this area, but it would help.

Q37 David Heyes: Your reports record your concern about the rise in complaints about your service in the year we have been looking at. You say that you will take action to improve your performance in future. It is seven months since the year ended, four months since you published your report-what things have you been doing?

Ann Abraham: We have been doing quite a lot. I very deliberately have given you the customer satisfaction survey results that are up on the website. There is a more recent lot about to go up that show a significant increase in the customer satisfaction scores for our review team. I hope Kathryn can say a bit more about that-about how we are trying to improve the feedback there.

Kathryn Hudson: One of the issues there is that many of the people who have complained to us are concerned about the quality of the service that we have offered to them. This is not about the length of time; it is about the way in which we deal with things. Within the review team, we have increased the contact that we have with people at the stage when we begin to review the work that we have done on their complaint. Many of those complaints are the ones where we have decided not to take matters on for investigation. Obviously there is a primary dissatisfaction: they feel that we have not listened to them, have not understood their complaint, and have not dealt with the issues that they have raised.

By changing the way in which we undertake our reviews, spending more time talking with them about the issues that they want us to review, and then being very careful about how we write our letters back to them-giving them more information and making sure we share clinical advice that answers some of their questions where we have it-we have increased the satisfaction rate in the way in which we deal with things by about 7%, I think, over the last six months. Ann has got the figure there.

This is fairly early days. We think there is more we can do, but we already have the evidence that people are feeling that we have given more consideration to the way in which we deal with the complaint they have made to us.

Q38 David Heyes: I will just make an observation on that. There is an interesting other side to the MP filter here. I have had constituents who have not been satisfied with an Ombudsman’s investigation for the sorts of reasons that you have described. I have sat down with them to take them through it, doing the job that you are now doing more fastidiously. I have done that on a number of occasions and it has ceased to be a complaint. I just put that in as an invisible bit of the usefulness of the MP filter. I am not making a case for it; I am in favour of the filter being abolished, but it would be something that you might lose, so I am glad you are potentially filling that gap.

Of the 400-odd formal investigations you carried out in this year, around 80% of them upheld the original complaint. There were 90 complaints about your investigation decisions. Perhaps I am not understanding this clearly, but it looks as though some of the complaints relate to cases where you found in the complainant’s favour. Is that the case?

Ann Abraham: It is the case.

Q39 David Heyes: How does that happen?

Ann Abraham: Sometimes we will find in the complainant’s favour but not on every count of their complaint; it might be partly upheld. It might be that their view of an appropriate remedy would be different to ours. There is still scope for a gap even though we have upheld the complaint.

Q40 David Heyes: Is that being dealt with in the same way that Kathryn Hudson has just described : a dialogue and engaging with the complainant to explain more ?

Ann Abraham: In investigation work, that dialogue and that engagement should be part of investigation itself. Regarding what Kathryn has described in terms of the work of the review team, the majority of those complaints are going to be from people whose cases we have decided not to investigate, because we either do not feel there are any indications of maladministration or we think that it is not something that we should take on because we cannot deliver the outcome the complainant is looking for. The people who come to the review team are by definition going to be unhappy, although interestingly 70% of inquirers, who are mostly the people whose cases we do not take on, say they are satisfied or very satisfied.

In investigations, around 90% of people who have had an investigation say they are satisfied or very satisfied. It is quite rare for somebody to complain about an investigation. It is very rare for us to reopen an investigation because we got it wrong, but I think the same principles apply about making sure we have done everything we can to ensure that the person understands the reasons for our decision. Sometimes we will go the extra mile in that. I have got a case at the moment, a very sad case about the death of a loved one, where one of our clinicians and the investigator are going to talk through the findings in the draft report in their home with them before we conclude the investigation. We can do some of these things in cases where I think it is really important to make sure that we get the best possible outcome even if we are not going to uphold the complaint, which in this case we are not planning to.

Q41 David Heyes: Where all of that process takes place and still the individual remains dissatisfied , their only recourse then is to judicial review ?

Ann Abraham: That is right.

Q42 David Heyes: Do you think that is a satisfactory situation?

Ann Abraham: It is difficult this, isn’t it? I suppose I would take the view that you have to stop somewhere. My office does some very detailed, very complex investigations, and, if you want to challenge the results of those, you have to go and persuade the court that the Ombudsman has acted unlawfully, which is a big challenge and it is very rarely something that anybody is able to do.

Q43 David Heyes: And expensive, I guess.

Ann Abraham: Not necessarily expensive for the individual, but expensive in everybody’s time and certainly the court’s time. What Kathryn is talking about is doing our work in a way that means that people do understand what we do, how we do it, and feel involved in the work that we do to the extent that they understand what is happening to their complaint and they understand the reasons for our decision. We are working at the moment on a customer service strategy that has that at its heart. That is taking the office on a stage in trying to improve our customer satisfaction ratings.

Q44 David Heyes: I was going to finish there, but what does working on a customer service strategy entail?

Kathryn Hudson: This is about looking at the quality of the work that we produce in terms of how the customer feels about it. It is very important that we do not move away from where we are in saying that we will conduct impartial and thorough investigations. We are not in any way moving towards being on the customer’s side, if you like. What we are looking at is the way in which we treat people when they come to us: the way in which we respond to their initial inquires; the sorts of letters we send them; the way in which we talk to them on the phone; and our ability to listen to them and to understand not only the complaint but what the impact has been on their lives. If they feel that we have understood that, they will have more confidence in the outcome of our investigation. It is important that they do understand that, and understand the conclusions that we have come to.

At the moment we are at the stage where there is quite a lot of work that has been going on in the office over the last year or so, particularly concerning the accessibility of our service to all sections of the population. In doing that, we begin to think about the quality of service we should be providing to everyone. We are hoping that strategy will be agreed by the board within the next month or so, and will be a fundamental part of the work that we are doing in our business plans next year, because it improves the quality as well as the perception of people outside about the sort of service they get when they come to us.

Q45 Greg Mulholland: You do get things wrong, don’t you? Some decisions are wrong and the biggest flaw in the ombudsman system, is it not, is that you are not accountable in any way for those mistakes and those cases that are not handled, even if they are only a small proportion? You are not accountable at all: not to us, not to the complainants, not to anyone, because there is no right of appeal.

Ann Abraham: I think that is untrue and unfair. I would not be sitting here today if I was not accountable to anyone.

Q46 Greg Mulholland: Not you, the decisions. Let me put it very specifically-accountable for those cases, each and every case; and you would surely acknowledge that some cases you will not get right, because that is the reality of human nature.

Ann Abraham: Let us unpack that a bit. Sometimes, like everyone and every organisation, we get things wrong. We have in place, because we are the last port of call for so many people, pretty robust mechanisms, like our review team and our external reviewers, to provide the best possible safety net. Everybody who has a decision from us has the opportunity for a review of that decision, and that review is undertaken by someone who was not involved in the original decision and is out of the management line for the original decision. We have a very robust review mechanism in place.

When we get things wrong, which we do occasionally but not very often, we then apply our own principles of good complaint handling, and we do what is appropriate in the circumstances. We certainly say sorry; we do everything we can to make good any injustice, to the extent that very occasionally I do authorise the payment of financial compensation for causing people distress and inconvenience. There is redress.

There is accountability in the courts. Just a fortnight ago-I am trying to remember-I sat though a judicial review in the Administrative Court where the way in which we do our work was under challenge. We came out of that with flying colours, with the judge saying our approach was both lawful and sensible. I sit in front of this Committee regularly. I feel very strongly, because the accountability mechanisms that are in place have some limitations, that I have to do everything I can as Accounting Officer to maximise those accountability mechanisms. I created an advisory board; I created an audit committee with an external chair. We have the National Audit Office looking at our work. We have internal auditors. I really do not think it is fair to say that we are not accountable.

The bottom line is we make 23,000 decisions a year, and some of them we may get wrong. Given the current legislation and given the constraints on public funds-and your question, really, is, "Who is going to guard the guardians?"-is this a proportionate way of providing accountability for the Parliamentary and Health Service Ombudsman? I would like to think that it is.

Q47 Greg Mulholland: I am not suggesting that you or the office are not accountable; clearly you are to us. It is a question of those specific decisions. You talk about the review process, but you are well aware that there are a considerable number of people who have used the Ombudsman’s services and feel that the decision was wrong and have provided very strong evidence to suggest that it may be. That has been seen by many MPs.

Ann Abraham: Have they? What is it?

Q48 Greg Mulholland: There are lots of cases that you are probably aware of.

Ann Abraham: I am not. I know that there are some very unhappy-

Q49 Greg Mulholland: Unfortunately, as it clearly says in the Ombudsman’s guidelines, "We will acknowledge any further correspondence from you but, unless it raises new issues that we consider significant, we will not send further replies." In other words, once it is done, it is done, and, as you clearly say, the decision is final. You are saying you have this review process, but you would acknowledge that you are not a legal process, and the level of evidence, the lack of cross-examination, the lack of representation for individual constituents-they can only make a complaint to you-is then weighted against huge public bodies that have very large resources to defend and provide all sorts of information. It is not necessarily always a balanced system. That being the case, why not simply provide a proper, formal right of appeal with very clear and specific guidelines, so that when those boxes are ticked and there may be an issue, people can have an appeal? As you know, the idea of saying that you can have judicial review is effectively saying, "Go away"- apart from to the very rich, which surely cannot be acceptable.

Ann Abraham: I do not know how long we have got, Chairman, because you and I could spend the next two hours on this. I just think that what you talk about in terms of representation and cross-examination is not what the Ombudsman does. That is why the Ombudsman is there; not to be a court.

Q50 Greg Mulholland: Why not have the right of appeal?

Ann Abraham: Can I ask you, appeal to-?

Q51 Greg Mulholland: No. With respect, I am asking you why not have a right of appeal? It seems an obvious thing to do to improve the situation and to improve the public confidence that you can look again properly at those decisions that you acknowledge will be wrong, and there will be some.

Ann Abraham: Why not do it? Because it is not obvious. I do not know what you mean. An appeal to whom?

Greg Mulholland: It is a very obvious question.

Q52 Chair : May I intervene? What happens i f a Member of Parliament is unhappy with the way the Ombudsman has treated a case , and he or she writes to you saying, " Can you look at this case again? "

Ann Abraham: I will look at it again.

Q53 Chair : So there is a right of appeal through a Member of Parliament.

Ann Abraham: There is not a right of appeal in the sense that a court has a right of appeal. I think the difficulty between us is, it may be obvious to you-

Q54 Greg Mulholland: In the benefits system we have rights of appeal.

Ann Abraham: If you would let me perhaps finish what I want to say here.

Greg Mulholland: In the benefits system you have the right of appeal ; it is not just a legal thing.

Chair : Ms Abraham.

Ann Abraham: The benefits system has a right of appeal through a tribunal mechanism. The Ombudsman is not a tribunal. The Ombudsman is not a court. Therefore, if you are asking for there to be a right of appeal, that usually suggests that you take the appeal to another forum. I do know what sort of forum you have in mind.

Q55 Greg Mulholland: I think you are being unusually and slightly worryingly defensive, and obviously this is something that we will take up with your successor. Could you not properly formalise the review process so it is clear what that process is, instead of simply saying the decision is final? Would that not be helpful to increase the confidence in the ombudsman service?

Ann Abraham: It is formalised and we publicise it. I am not being defensive. I really do not understand what you are saying. You are asking for something that is already there.

Q56 Chair : You are saying there is a review process. If somebody writes to you saying, "I promise you, you have not got this right. Please will you look at this again?" you do not need an MP to do that? It does not go through an MP filter?

Ann Abraham: No.

Q57 Greg Mulholland: This is the Ombudsman’s policy. This is a very important point that the Committee must take up. Formally it says, " O nce the O mbudsman or one of her senior staff ha s considered your complaint and sent you a response, their decision is final. We will acknowledge any further correspondence from you but, unless it raises new issues that we consider significant, we will not send any further replies . " That is not a formalised review process and certainly nothing in the form of an appeal.

Ann Abraham: That is what we say at the end of the review process.

Chair : Perhaps you would like to reflect on this, Ms Abraham, and send us a supplementary note. I think we have gone well round the houses on this, but I think we need some clarification.

Ann Abraham: Fine.

Q58 Lindsay Roy: You acknowledge that occasionally you do get things wrong and there have been occasionally compensations. Is that ex gratia payment?

Ann Abraham: Yes.

Q59 Lindsay Roy: How many are we talking about over the last two or three years? A handful?

Ann Abraham: A handful.

Q60 Lindsay Roy: What is the maximum amount paid?

Ann Abraham: Maybe £1,000

Q61 Chair : J udicial review cases can be very expensive and some of them are clearly vexatious. Do you apply for costs against unsuccessful litigants?

Ann Abraham: Yes, we do.

Q62 Chair : As a matter of routine?

Ann Abraham: As a matter of routine.

Q63 Chair : Can we talk about the information promise? Freedom of Information requests have to be answered in 20 working days, and the Data Protection Act has a statutory time limit of 40 days. Yet you only have a target for responding to 80% of requests for information within the statutory guidelines. Why is this? Why do you not have a 100% target? Are the Acts of Parliament wrong?

Ann Abraham: No, the Acts of Parliament are not wrong. I think if you asked every Government Department how they do against those statutory deadlines, you might get some interesting results. We have been working very hard to improve our performance in those areas for many years now. In fact we are now running in the high 90s, if I remember rightly, in terms of responding within statutory deadlines. It is an area where our performance has improved considerably over the years.

I tend to take the view that I do not set targets for my staff that I know they cannot achieve because that is mission impossible. If you look back through the years, we have been increasing that number year on year.

Q64 Chair : The Information Commissioner has found six times against you in the last year.

Ann Abraham: Yes.

Q65 Chair : What steps are you taking to improve this?

Ann Abraham: I don’t know if you know about our protocol with the Information Commissioner. We have had a very extensive dialogue with the Information Commissioner over many years now. We have been very keen to ensure that the Information Commissioner understands that we are working with legislation in addition to Freedom of Information legislation and Data Protection legislation. Whereas that is their focus, we have to balance both those Acts of Parliament with our underpinning legislation, which talks about conducting investigations in private.

Q66 Chair : Is there a conflict between these Acts of Parliament?

Ann Abraham: There is a potential conflict and there is a balance to be found. I think we found it because we have done a lot of thinking about it. I think we have now managed to get the Information Commissioner to understand that those are competing bits of information-not necessarily conflicting, but competing.

Q67 Chair : Bear in mind that what we are saying here is unimpeachable in any court; this information promise is very much directed at explaining to the Information Commissioner and the Data Protection Commissioner some of your limitations.

Ann Abraham: I think we have managed to do that, and that is all set out in the protocol.

Q68 Chair : Is that why you brought forward this rather elaborate whole document about how you handle information?

Ann Abraham: I think we are there with the Information Commissioner. The Information Commissioner saw this consultation document before it was published and was very supportive of it, and very supportive of the project. I think what has become clear to me over the years is that there is a big appetite for the information that my office holds. I detect that around this Committee; I detect it from consultations we have done on information sharing. There is a big appetite for information. There is not a comprehensive understanding of the constraints of our legislation and what we can and cannot share. Therefore that tightrope between privacy and freedom of information is one we have to walk. What we are trying to do is tell the world at large-not so much the Information Commissioner, because I think he gets it-that we have to find that balance and this is how we do it.

Q69 Chair : We are not talking about individual cases here, but there is a syndrome where a complaint is turned down because of information that you have received in confidence from the body being complained against. So the complainant never really understands or can see why his or her complaint has not been upheld.

Ann Abraham: I do not think that is right. One of the things that we absolutely try to do is ensure that our decision, whether it is an investigation report or a decision letter, contains all of the information concerning the reasons for our decision. Therefore we simply do not say to people, "We are not going to look at this and we are not telling you why." We say, "We are not going to look at this because…" That sometimes will include sharing our clinical advice; but basically whatever our decision turns on, we will share that information with the complainant.

Q70 Chair : Some complainants complain they cannot get access to the key papers that have been submitted to you to defend against their complaint.

Ann Abraham: If they do, we have a review process and Bill holds the responsibility for looking at complaints about decisions on information requests. There is an internal review process before the Information Commissioner, and indeed the tribunal, will look at these things.

Very occasionally we will withhold information. I will give you an illustration, which is an extreme case, but it does happen from time to time. Sometimes we will take on a complaint from possibly a parent on behalf of a child or a young person, and that gets us into some difficult territory around the medical records of that young person and what we can and cannot share. Sometimes we will withhold information because we do not think we are allowed to share it, or we do not think it is appropriate to share it, with the individual who is asking for it.

Q71 Chair : You are obviously spending quite a lot of time on this issue, and obviously it does take up quite a bit of time, but how do you know that, for example, an NHS Trust has disclosed all the relative information to you if the complainant cannot see all the information that has been disclosed to you and then knows what has not been disclosed to you?

Ann Abraham: If the complainant has information and wants to know if we have got it, they can ask us. It is much more often the case that our investigations will discover things that the complainant does not know about, which we will then share with them. I think that would be a very rare event that you describe.

Q72 Chair : Finally, your Resource Accounts suggest that your roll-out of your electronic records is under budget. Is that because it is running late or is it just turning out better that you expected?

Ann Abraham: Can I ask Mr Richardson to deal with that?

Bill Richardson: It is not under budget. We had intend to roll it out last year, but, due to some issues with just making sure that the system was working properly, we decided to defer that implementation to this year. I am pleased to tell you that it is now implemented and is working extremely well.

Chair : Good.

Q73 Alun Cairns : I want to stay with budgets if I can. You had an underspend last year of £1.3 million. Treasury rules mean that any underspend has to be flagged up to the Treasury by midDecember. How confident are you that future underspends will be indentified early enough in order to allow them to be rolled over?

Ann Abraham: I am very confident because we have monthly reports to the executive board, and we are already thinking ahead around these sorts of issues. I think that is the simple and short answer to your question, but possibly Mr Richardson could say a bit more about the 2010-11 underspend, which was primarily about depreciation, as you will understand.

Q74 Alun Cairns : I appreciate that and I will come on to that. Can you tell what your position is this year?

Ann Abraham: I can do, but can I ask Mr Richardson to do it?

Bill Richardson: This year at the moment we are forecasting an underspend of just under £500,000, so we are within the target that we have set. I can explain a bit more about last year if that would help.

Alun Cairns : Please do.

Bill Richardson: As the accounts show, we had an underspend of £1.3 million. Some £800,000 of that was to do with depreciation; that is a direct consequence of the fact that, when our capital budgets were set originally four years ago, we thought we would be spending a lot more than indeed we need to now, because of different ways in which our IT systems, in particular, were funded. That large underspend on capital has meant that we have needed a lot less depreciation. The depreciation amount within the £1.3 million was £800,000. That is non-cash in Treasury terms, which means that we cannot spend it on anything else.

The balance of £500,000 was to do with, as we have already said, a slight delay in the implementation of one of our IT systems, and some strategic decisions we took not to do some recruitment of case workers. Had it not been for the depreciation problem, we would have been around about the maximum target that we had set.

Q75 Alun Cairns : I can wholly appreciate the depreciation issue, but it was the non-recruitment that I wanted to pursue. Can I suggest that the effect of not achieving the productivity target of closing 90% of investigations within 12 months was caused by non-recruitment?

Ann Abraham: You can suggest it, but it is not true. The accounts say that, although we only met three of our seven financial management targets and the underspend seems high, there was no significant direct impact on the delivery of our service or our objectives for the year. I think Kathryn may want to come in on the specific point about recruitment.

Kathryn Hudson: We have adopted plans always to do regular recruitment rounds, because it does take a while to recruit case workers and then to train them. We had a plan for recruitment last year, but in fact the rate of turnover of staff-and particularly of case workers-declined, and at the time when we would have normally done the recruitment round, we did not have sufficient vacancies to fill. We therefore took a decision to delay that, and we did the recruitment round in this financial year rather than last.

The effect of that, because we had staff in post and did not have the vacancies, was that we had no backlogs in our work. The work continued to flow through. I do not think you can in any way attribute the failure to recruit staff when we did not need them to the reason why we did not achieve the 90% target.

Q76 Alun Cairns : In spite of the significant underspend in the last financial year, there is a plan for an increased budget based on, as you say, "robust forecasting for the future workload". Why do you think you are likely to spend more this year than last year with the underspend?

Ann Abraham: There is potentially quite a complex answer to that. I perhaps might ask Bill to start.

Bill Richardson: In terms of our spending, we have a budget now of £34 million, which is the flat cash going forward. Obviously we need plans in place to make sure that we are resourced appropriately in relation to the workload that is coming through. On a monthly basis we are looking at both our resources and our staffing just to make sure that there is a match there with the work that is coming in. We do this regularly just to make sure that we are in the right place on all of that. We need to make sure that our budgets match the workload that is coming in.

Kathryn Hudson: That is correct. Having said we delayed a recruitment round last year and therefore did not spend the money in this year, in fact we will have two recruitment rounds. We have completed one in Manchester; we will do another one in London in January. Therefore we will need additional funding for that.

Q77 Alun Cairns : Finally, your financial settlement commits you to achieving immediate real-term savings this year and maintaining them for next year. What specific measures do you propose in order to achieve that, and what contributions will come from savings in staff costs and non-staff costs?

Ann Abraham: Again, perhaps Mr Richardson could deal with the detail, but I think the two headlines for me are around a pay freeze, that is obviously very substantial for us, and also reducing office space in London and making sure we maximise our accommodation in Manchester. We have done quite well in moving towards that recently.

Bill Richardson: Internally we have set limits for our staffing costs and for our overhead costs. On staffing, as Ann said, there is a pay freeze at the moment in common with what is happening across the public sector. We are also looking at the internal services we provide to see what efficiencies we can get out of that: the way we provide our ICT, telephones and so on, and looking at the contracts that we have in place. We have already achieved some quite substantial savings from looking at those contracts.

As Ann said, the other issue is around accommodation, where we know that to achieve the £4.4 million saving that we need to by the end of the four years, we need to put in place a programme that allows us to release some of the accommodation in London, and that is now quite well advanced.

Q78 Alun Cairns : I appreciate the rationale behind the answers, but I have not heard any numbers. Could you provide either some broad numbers now or maybe in a note to the Committee so that we can interrogate the figures?

Ann Abraham: Could I do that by way of a note to the Committee, because I would not want just to pick one or two numbers out of the air.

Q79 David Heyes: This is about NHS complaints handling. This may be your opportunity to accept the Chairman’s invitation to be a little less cautious and tell me what impact you anticipate the Government’s reforms of the NHS will have on the number of NHS-related complaints you receive. I can see you battling with the temptation.

Ann Abraham: No, I am not, actually, because this is not really where the fireworks might come. I am hoping we might get there. In a strange sort of way, although it does not get a lot of airtime, one of the things I am most proud of in my term of office is the reforms to the NHS complaints system. I have said previously that I spent the first five years in this job arguing for reform and then the next two bringing it about. I think that the NHS complaints system that we have now is the best design we have ever had, and it is starting to demonstrate its potential. I have spent quite a lot of time in the last couple of years trying to persuade-I think successfully-this Government, the Health Committee and the MidStaffordshire Inquiry not to turn it on its head and muck about with it, because I think it is a good design.

We have a very good dialogue with the NHS around the changes that are happening at the moment. I am very pleased that complaint handling is up there in the operating framework in the beginning of the design of the new NHS; that will ensure it is not something that falls down the gap between old world and new world and that there is good transition planning for complaint handling. We have been having that dialogue with them from the outset. I have regular monthly meetings with the Chair of the NHS Commissioning Board.

Therefore, although I think it is entirely possible that we will see an increase in complaints, we have not seen it yet. Since we took on the Healthcare Commission’s second stage when that was collapsed, our NHS complaints have held pretty steady. The dialogue we have with the NHS-nationally, regionally, and locally-is a good one. I think the feedback loop is working well.

I do not have that sort of confidence about complaint handling in Government. I can go and talk to David Nicholson or the Chair of the NHS Commissioning Board about complaint handling in the NHS. Whom do I go to in Government to talk about that? I can go to a room full of Permanent Secretaries, but I cannot go to anybody who has got the job card for good complaint handling in Government.

Q80 David Heyes: You can do that now, but will you be able to do that with a reformed, perhaps very different, NHS? For example, you have already experienced difficulty with GP issues. GPs are going to take over commissioning services. You have already expressed concerns about the way individuals GPs and practices handle complaints. Isn’t taking away your vehicle for talking to the NHS and having an impact likely to result in a greater volume of complaints? It is evident already in my constituency case work that the volume is increasing.

Ann Abraham: That is interesting, because that is real intelligence and really important information to have. I am not saying that this is all going to run smoothly. What I am saying is that my office’s dialogue is not with "old world"; it is with the person who is the Managing Director of the NHS Commissioning Board and David Nicholson. Therefore, they are the future and they are very well sighted on these issues. In terms of the reconfiguration in clinical commissioning groups, there is lots of potential there for things to go wrong, and I think our report on GP removals was very timely. Certainly I got feedback from senior players in the NHS and the Department of Health about that.

Is there an understanding and a dialogue with the NHS around these issues? Yes. Strangely enough, in recent years they have leapfrogged Government in terms of having any kind of central take or central governance mechanisms around complaint handling.

Q81 Lindsay Roy: It will not be a surprise to you that there has been a strong focus in our discussions with the Cabinet Secretary on the need for cultural change in the Civil Service. Indeed, yesterday we were told that only one in four were happy with the way in which change has been managed. In your report on complaint handling by Government, you identify a need for strong leadership from the top. You are, and I quote, "Committed to developing a culture across the Civil Service that values complaints." Do you see an explicit role for the Head of the Civil Service here? You were asking, "Whom do we go to?" Do you see that as a key function of the new Head of the Civil Service?

Ann Abraham: When I say my farewells to Gus O’Donnell at the end of December, I will ask him which of the triumvirate has the job card.

Q82 Lindsay Roy: Who m would you expect that to be?

Ann Abraham: It could be any one of those three: efficiency and reform, you would think so; Head of the Civil Service, certainly; Cabinet Secretary, you would like to think would take an interest. At the moment I do not think anybody is showing the leadership in these issues. I was looking at some of the reports that the Committee has done in the course of this year around governance, around culture, around leadership, and those were just the three words that I used to a room full of Permanent Secretaries last week. What they said back to me was, "It is a tough message but it is a fair challenge, and we will get back to you." When they get back, in effect, to my successor, which I suspect will be in the New Year, I hope the Committee will pick that up.

Q83 Lindsay Roy: Fine rhetoric, but it is a priority for action.

Ann Abraham: Yes.

Q84 Lindsay Roy: What is your opinion of the use of third-party complaint handlers by public bodies? Are they not duplicating your role as Ombudsman, and so wasting public money?

Ann Abraham: No, I do not think that is right. I do think, and you will have seen in the Responsive and Accountable? report, that there is a plethora of different systems and a plethora of different so-called independent complaints reviewers and so on. We did a survey just to ask what is out there. There may be a follow-up piece of work for somebody to do on the effectiveness of what is out there. There are all these tiers of complaint handling that we see in Government Departments. It is interesting; I was talking to the Department for Work and Pensions last week and they have decided to lose one of their tiers. I think the multiple stages of what you would call local resolution definitely need somebody to shine a light on them and ask, "Why are you doing this?"

The arm’s length complaints handlers, as I would call them-the adjudicator, the Independent Complaints Reviewer for DWP-do a good job. They are the independent voice within the Department, within the system; they are specialists; they deal with high-volume stuff. The feedback loop within the Department is usually a very good one. I think there are good models out there. I think there are some other slightly strange models, which probably warrant further investigation.

Q85 Lindsay Roy: So in essence that diversity is healthy, and, if I hear you right, we need to look at the bureaucracies involved to see if they are fit for purpose.

Ann Abraham: I think that is absolutely right: you need to look at the bureaucracies involved to see if they are fit for purpose. The headline on my press release was "Overly Bureaucratic complaint handling leaves people confused and exhausted, and wastes public money". I think that is pretty much it really.

Lindsay Roy: I cannot sum it up better than that.

Q86 Chair : Have you got anything further to add about the Law Commission’s report?

Ann Abraham: Yes, I think is the simple answer to that. I look at the Law Commission’s report alongside the Open Public Services White Paper, and it seems to me that the Law Commission did a rather better job, and that is the report that we should be focusing our attention on. If you are looking for loose cannons, the Open Public Services White Paper might be the place to go.

Q87 Alun Cairns : On the Open Public Services White Paper, in view of the proposed extended role of the Ombudsman, in terms of securing choice for service users, what discussions did the Government have with you before the White Paper was published?

Ann Abraham: I think I can probably tell you this story. I was at the Hampton Court Flower Show on I think 9 July, and at five o’clock I got a call to say the Cabinet Office was going to publish its White Paper on the Monday, and I had read to me over the phone the bit about ombudsmen. I said, "I do not think there is anything in there that is an absolute showstopper." So the answer to your question is no.

What we now have running is a process of engagement-I think that is what the Cabinet Office is describing it as-by the Cabinet Office, around this. There is a meeting this week of the Public Service Ombudsman and Cabinet Office Minister to talk about the Open Public Services White Paper and what is described, I think, as the role of the Ombudsman in supporting people to exercise choice. The simple answer to your question is, I did not know about it before it came out, and I am now catching up on the dialogue with Government about it.

Q88 Alun Cairns : Are you content with that, and do you think there is a risk of the Ombudsman being drawn in to dictate policy to some of the agencies of Government?

Ann Abraham: I think this Open Public Services White Paper is well motivated. Who does not want accessible, fair, responsive and accountable public services? If you look at the Law Commission’s Report and its recommendations, it is recommending reforms that would make it easier for citizens to complain if they receive poor public services, which seems to me a pretty laudable objective and a well-thought-out report.

What the Government seems to be saying in relation to the Open Public Services White Paper is that their ambition is for the Ombudsman to be more accessible, more visible, and have more resources and new powers to enable them to have a significant impact in supporting people’s ability to exercise choice. I think that means there is a danger that the long-established independence and political impartiality of the Ombudsman will be compromised by ill-informed, poorly thought-out proposals. If the Government wants an advocate for its choice agenda, it should create an advocate for its choice agenda.

I think there is a real concern here: this could just be muddle. If you read the Cabinet Office guidance on creating ombudsmen, there is guidance for Departments; I don’t think the Cabinet Office officials have read it and I certainly don’t think the Ministers have. It makes it clear that, if you want an advocate, you do not want an ombudsman. I think in here is something around Government seeing ombudsmen as champions of their policy; and I think this is Parliament’s ombudsman, not the Government’s ombudsman. I think this Committee needs to watch this with great care.

Q89 Alun Cairns : I think that is very important and extremely telling. Let me try and interpret what you said another way, and maybe paraphrase my question to check my thinking in terms of your response. If a court comes out with a judgment, it will set a precedent that can shift public policy quite significantly. Are you fearful that you might find yourself in that position-deciding whether appropriate choice was provided, for example-and therefore you will have dictated public policy?

Ann Abraham: I think this is where the muddle comes in, potentially, because it seems to me that it is entirely legitimate for the Government to be promoting accessible, fair, responsive and accountable public services where there is choice. In setting the standard, which is the job of Government, it seems to me-and part of the White Paper talks about setting standards for public services-if choice is part of that standard and then somebody comes to the Ombudsman as they currently exist and says, "The published guidance says I am entitled to choice; this public body did not offer choice," that is a complaint of maladministration. You do not need to change anything to bring a complaint to the Ombudsman about the absence of choice.

When you try to turn the Ombudsman into the choice champion, you are in a very different place. That seems to me to show a great deal of confusion about what ombudsmen are and what they are not. That is why I think the Law Commission’s proposals are much more to the point, because if you want to make the Ombudsman a key player in providing effective redress for poor public services, you need to make sure that you have comprehensive coverage: no gaps, no barriers to access, clear pathways, clear signposting, and a clear profile. Profile and transparency, yes; agents for Government, no.

Q90 Chair : We are involved in an inquiry about the role of the Head of the Civil Service. It would seem that you would like us to recommend that we ask him, as part of his role, to address the complaint-handling issue from a strategic viewpoint: either he gives himself a role or he finds somebody else to take on that role at the centre of Government.

Ann Abraham: Yes.

Q91 Chair : Thank you for that. We are now moving on to the question of the future of the oversight of administrative justice. You have made clear your opposition to the abolition of the Administrative Justice and Tribunals Council. Could you clarify why you oppose this?

Ann Abraham: I submitted some written evidence to the Committee, as you know, Chairman, and I described my response to the proposed abolition as one of "bewilderment and dismay". I did think long and hard about whether I ought to put in a response, because parliamentary ombudsmen are supposed to stay away from these sorts of things on the whole. I honestly felt that I was in a unique position, because I have been a member of this Council and its predecessor Council for nine years and also a member of the Scottish and Welsh Committees. It has such expertise, such independence of view and it is so tiny that it seemed to me not a good candidate for abolition. I thought there were good arguments against it.

The strongest one for me is its UK perspective. I do not know of another organisation that has a UK perspective on administrative justice. Of course, justice is not entirely devolved; tribunals are not entirely devolved. There are complex devolution settlement issues here, and this council is the only organisation I have ever encountered that understands them.

Q92 Chair : Interesting . One hopes that the Department will take over that understanding. That seemed to be advice that we received in our evidence session last week.

Ann Abraham: It is not a UK Department.

Q93 Chair : How will you advise your successor on the consequences of AJTC abolition if it goes ahead?

Ann Abraham: I think what I will say to her is that you need to replace it by making sure that those networks are available to you in some other way.

Q94 Chair : Presumably you will advise the Ministry of Justice, despite it being a nonUK Department, to make sure that the function they take on is a UK function?

Ann Abraham: I do not think they can do that. There are people around the table who are probably more expert than I am on all of this. Probably like you, over the years I have seen a large number of documents come out of the Ministry of Justice in England and Wales that deal with the core issue, and they usually have a paragraph that says, "This has implications for devolution and we will come to this," which means they have not worked it out yet. I know it is not that straightforward.

Q95 Chair : That UK point is one that we shall pursue further with the Government. Let me move on to the question of overseas territories. You will be aware that Mr Jeremy Corbyn MP has raised with us the plight of the Chagos islanders, and the fact that in his view the Ombudsman’s remit anomalously excludes cases of maladministration by the Foreign and Commonwealth Office undertaken in connection with the Government of an overseas territory. Do you share this concern? Bear in mind you are speaking in a personal capacity rather than an official capacity in this matter.

Ann Abraham: I do not think I am. I absolutely understand the concern in relation to the injustice that Members of Parliament are concerned about here. I absolutely understand it.

Q96 Chair : Should you be able to investigate cases of this kind? S hould we be thinking of amending the legislation ?

Ann Abraham: I suppose in a way it comes back to the Law Commission’s call for a fundamental review. This legislation was put in place in 1967. In 1967 the view was taken that action taken "in connection with the administration of the Government of any country or territory outside the UK which forms part of Her Majesty’s dominions or in which Her Majesty has jurisdiction" should be excluded. It is not the only thing that is excluded; there are a lot of things that are excluded. Therefore, I would not argue for this change in isolation, but I would argue for a review that says what is appropriate for the Parliamentary Ombudsman’s jurisdiction in 2011.

Q97 Chair : Would such changes be retrospective, or should they be retrospective in your view, so that you can deal with complaints that are outstanding, or do we draw a line?

Ann Abraham: I do not think you need to draw a line because the tests that will apply are the tests that we always apply around indications of maladministration or injustice, and whether we can as an office achieve an outcome that is the outcome the complainant seeks or is otherwise in the public interest. There are tests around time bars over which we have discretion. I think I would again keep it simple-bring it in. That makes it retrospective, as it were, unless you decide not to.

Q98 Chair : Some colleagues might complain that you have very grandiose ambitions for your office even though you are about to leave it.

Ann Abraham: I am about to leave it.

Chair : T hat t his is a sort of self- aggrandisement process of the office - empire building.

Ann Abraham: What is? The Chagos islanders?

Q99 Chair : Extending your remit to this , that and the other. Are there no limits to your ambitions?

Lindsay Roy: Not now.

Ann Abraham: Interesting question. There are no limits to my ambitions-

Q100 Chair : Mission creep-that’s what we call it.

Ann Abraham: No, not at all. My view is that the Parliamentary Ombudsman is there to do a job. Her jurisdiction should cover everything that Government does, unless there is a good reason for it to be excluded. My question then would be: what are the good reasons for exclusion? If you have an Ombudsman with partial coverage, that means bits of Government never get any scrutiny. I would turn it on its head and go back: why was that put in in 1967, and is the argument still there for that to be an exclusion, along with public service personnel, commercial and contractual matters? That is particularly relevant in the light of contracting out and what all that means.

The argument, it seems to me, is for modernisation. It certainly is not for piecemeal- "Here is an omission, let’s put that in." I would argue strongly for not looking at this in a piecemeal way, but I do think, 44 years on from the creation of the office, it is probably time to go round that loop again and make sure that we have an Ombudsman who is fit for purpose for the 21st century.

Q101 Chair : You have been Ombudsman for a record nine years. You are in the last few weeks of your tenure. You have marked this office with your own personality. What are the key messages you would want to leave to your successor about the development of the office?

Ann Abraham: I have some key messages for the Committee as well actually; I thought I would hand out some job cards to you before I went. There is something an ombudsman colleague said to me a long time ago: you never own this job; you just have the stewardship of it. It has been absolutely my ambition to leave the office in a better place than I found it. I like to think that is so. I was very taken with something in the Investors in People report we got earlier this year, which described the office as being in the best shape it has been in for years, delivering and in great shape to face future challenges. What I would say to my successor is that she will be taking over an office that is in good hands. It has a strong executive board and a strong management team. It has highly engaged, motivated staff and record levels of engagement if you look across the public sector. I am really pleased to be handing over to a strong successor through a managed transition.

I think there are challenges ahead, but I think that most of them are external. I do think the office is well run, and there is lots of evidence for that. That does not mean that there is not scope for continuous improvement because there always is. In terms of what is out there-and this is a message to the Committee-I think there is follow-up work to do on direct access, and I have been very pleased to hear the Committee’s emerging line on that today. I think there is follow-up work to do on Government complaint-handling performance and, when the Government’s response to Responsive and Accountable? is published, I hope the Committee will follow it up as well as my office.

I think we need to keep an eye on what the Cabinet Office is dreaming up under the auspices of the Open Public Services White Paper. I think there are two reform agendas running: one is the Law Commission’s reform agenda, which seems to me to be very solidly based, and there is another one, which is all over the place-well motivated, but potentially dangerous. I think the external environment is where my successor may well need to focus a lot of her attention. I think she can rely on my two deputies to do what they have always done in terms of the solid management of the office, and I wish her every success.

Q102 Chair : Can I ask you something t hat might seem a bit wacky? We are doing an inquiry into strategic thinking in Whitehall , and a great many of the complaints you deal with in fact arise from a failure of fundamental understanding of big problems at the top. You might be dealing with complaints at the micro level, but the problem is a macro failure. Do you feel you have jurisdiction over that or is it too political?

Ann Abraham: Certainly in terms of what constitutes good administration and the importance of good leadership, and the ability to stand back from the detail and ask the "What is really going on here?" question, that is one of the Civil Service’s difficulties, I think. There is the hiatus between policy making and operational delivery-policy making not informed by the practicalities of "What are we trying to do here and is this going to achieve it?"

Q103 Chair : Part of the art of good strategy is understanding the resources you have at your disposal and the limitations on you r actions.

Ann Abraham: Absolutely: the art of what is possible. Sometimes that is very much within jurisdiction. We have been wrestling with ex gratia compensation schemes throughout my tenure, and the Japanese internees provide a classic example of an absolutely laudable policy objective, thrown together without actually understanding what British nationality means and how it has changed over the last 60 years, doing immense damage to individuals who deserve public administration at its best. When it all starts to go wrong-in the courts, with the Ombudsman-where is the leadership to stand back from the detail and say, "What were we trying to do here?" rather than, "How can we defend the indefensible?" Woven into our work is strategic thinking and the absence of it, and strategic leadership.

Q104 Chair : Would it be your office or a different office that would oversee the development of strategic thinking that, for example, might conclude that the Government has not understood threats or how to assess threats, or has not understood how armed forces act as a deterrent or what they are trying to deter? That would be a very different kind of office from yours, wouldn’t it?

Ann Abraham: I think it would be a different office, Chairman. I would caution against creating something new in order to make Government do what it should do anyway.

Q105 Chair : We have got a new Joint Committee on National Security, but they do not have any staff; they do not have a national commissioner or a commissioner for national strategy or security strategy who would provide them with the kind of expertise and oversight, in the way that you provide this Committee with information about complaints.

Ann Abraham: I understand what you are saying. I suppose that might be part of the solution. What we are saying here, I think, is that Government is not working well. Well, how are we going to make Government work better? That is about governance, culture and leadership in Government.

Chair : And process.

Ann Abraham: It’s not about, "Create something else and don’t address the fundamental failings that we both know exist."

Q106 Chair : Thank you very much indeed for a delightful final session of evidence in front of this Committee. It really only remains for me to thank you publicly, not just on behalf of this Committee but on behalf of Parliament, for the extraordinary public service you have given Parliament over the past nine years, and not just to Parliament but to those whom we all serve. You have a very distinguished record and we thank you for your work.

Ann Abraham: Thank you. Can I say thank you in return to the Committee members past and present? Whatever I have achieved over the last nine years, there is a long list of people without whom none of it would have been possible, including the people sitting either side of me and a long list of people back at the ranch. It very much includes this Committee.

I spoke at the British and Irish Ombudsman Association conference earlier this year on the subject of challenges to decisions from Government Departments, and I said in that context that for me the Public Administration Select Committee has been a conscientious and constant champion of the Ombudsman and the ombudsman institution. I said that things would have played out very differently without this Committee’s support. I know that the Parliamentary Ombudsman draws her strength from Parliament in general and this Committee in particular. Thank you, and if my successor has the same degree of support over the next seven years as I have had over the past nine, she will be fortunate indeed.

Chair : Please pass our thanks to your staff as well. We know that these are uncertain and difficult times for the public service, and you are having to make some tough changes in your organisation as well. We thank them for their work. I certainly take very seriously the suggestions you have made to us about the future challenges to the role of the Ombudsman, and we will stay on the case.

Ann Abraham: Thank you very much.

Chair : Thank you very much indeed.

Prepared 17th January 2012