Time for a People's Ombudsman Service - Public Administration Committee Contents

3  PHSO: "stuck in time"?

Criticisms of an outdated system

33. The office of PHSO is 47 years old. The potential scope for its development has been highlighted in the last 15 years by a variety of reports and academic commentary, including those by PASC.[38]One of the most searching critiques of PHSO in the overall context of public redress was the research conducted for the National Audit Office (NAO) in 2005 by Professor Patrick Dunleavy, Professor of Political Science and Public Policy at the London School of Economics, and colleagues. The research was published inCitizen Redress; what citizens can do if things go wrong in the public services. It included a survey thatfound that only one respondent in 14 mentioned any kind of ombudsman in connection with redress; no-one in more than 50 focus groups knew of the Parliamentary Commissioner for Administration; and respondents thought it to be irrational that the office of Parliamentary Ombudsman should apparently have two names and "be known by an alias".[39]

34. This research was supplemented by a study in 2010 led by Professor Dunleavy, Joining Up Citizen Redress in UK central government. It acknowledged the "prestige of the Ombudsman's role" but, referring to the requirement to report to PASC, and to the influence of the post-holder, it said:

    as a consequence of its institutional setting, its organisational culture and the leadership style of recent post-holders, [PHSO] does not seem to have played much of a role in informing civil service thinking on the bulk handling of complaints.[40]

35. In 2011 the Law Commission, the independent body created to review law and to propose reform, produced a report on Public Services Ombudsmen and made a series of recommendations to improve access to public services ombudsmen, and their "independence and accountability". The report recommended that the Government establish a wide-ranging review of the public services ombudsmen and their relationship with other institutions for administrative redress, such as courts and tribunals.[41]
Box 2: Recommendations in the 2011 Law Commission review of Public Services Ombudsmen.

·  The appointment of the Parliamentary Commissioner on the nomination of an individual by Parliament.

·  Parliament, and the National Assembly for Wales in the case of the Public Services Ombudsman for Wales, develop close links between all the public services ombudsmen and appropriate Select Committees.

·  The repeal of legislative provisions requiring complaints to be made in writing.

·  The removal of statutory bars that restricts the ability of citizens to choose the institution for administrative redress they prefer.

·  The reform of the "MP filter", so that citizens can make complaints direct to the Parliamentary Commissioner.

·  The findings of the public services ombudsmen, except the Housing Ombudsman, should be made binding.

·  All of the public services ombudsmen should have powers allowing them to publish and distribute their reports and other materials widely.

Challenges facing the ombudsman service

36. The debate about how ombudsmen schemes are likely to develop in the future, and about the ways in which ombudsmen will need to operate to deliver a successful service, has become more prominent.Queen Margaret University (QMU) Edinburgh, for example,recently published a report commissioned by the Legal Services Ombudsman,The future of ombudsman schemes: drivers for change and strategic responses,that outlined three main areas of challenge for ombudsmen:

·  Expectation of citizens: consumer demand and expectation is changing, and citizens are "increasingly demanding and resourceful and with greater expectations of speed, simplicity and online provision".

·  Service delivery: changing service delivery, in particular the blurring of the lines between private and public sector service provision, is impacting on ombudsmen, and "with public sector ombudsmen investigating private companies, the public and private ombudsman models [are] converging and the logic behind separation [is], perhaps, becoming undermined".

·  Policy environment: policy issues such as "continuing fiscal restraint" and changes to consumer advice are changing the operation of ombudsmen.[42]

37. The QMU report concluded by identifying eight specific ways that ombudsman schemes need to change to respond better to individuals and to complaints handling:

·  from formal to informal;

·  from time intensive to quicker and cheaper;

·  from paper-based to online;

·  from written to oral;

·  from low public profile to high public profile;

·  from reactive-to-environment to proactive-in-environment;

·  from complaint resolution to systemic improvement; and

·  from sectoral jurisdiction to integrated jurisdiction.[43]

38. The EU Directive on Alternative Dispute Resolution (ADR) is a further challenge. It is intended to promote schemes that are available to help complainants resolve their disputes outside court. The European Commission highlighted that the diversity and uneven geographical and sectoral availability of ADR in the EU prevents consumers and business from fully exploiting their potential. The European Commission's Directorate General for Health & Consumers published new legislation on ADR and ODR (online dispute resolution) in June 2013.[44]The EU ADR Directive, although not applicable to the PHSO, nevertheless sets abenchmark, which requires all member states to provide consumers with ways to solve all contractual disputes through ADR procedures and without going to court. ADR schemes will have to be impartial, transparent, fair and effective, and consumers must be given easy access to the right ADR entity. The implications for ombudsmen services in the UK of the EU directive on ADR have yet to be given comprehensive consideration.

Comparisons with other ombudsmen

39. The remit and powers of Ombudsmen in the UK and elsewhere are all different. In the Netherlands, for example the National Ombudsman of the Netherlands investigates complaints brought to him by members of the public and can also launch investigations without a specific complaint having been made. His authority embraces almost the entire sphere of public administration: not just the Dutch ministries and their different departments, but also other administrative authorities, the police, the water authorities, the provinces and many municipalities. The public have direct access to the National Ombudsman to make a complaint.[45]

40. Ombudsmen in the devolved nations of the UK have developed different models of working. The Public Services Ombudsman for Wales was established by the Public Services Ombudsman (Wales) Act 2005. It brought together the jurisdictions of various offices, namely the Local Government Ombudsman for Wales, the Health Service Ombudsman for Wales, the Welsh Administration Ombudsman and the Social Housing Ombudsman for Wales. The Ombudsman has a dual role: under the Act he investigates complaints by members of the public concerning maladministration, failure in a relevant service or failure to provide a relevant service by any "listed authority" in Wales; and under the Local Government Act 2000, he is responsible for examining ethical standards in local authorities.[46]

41. The Scottish Public Services Ombudsman Act 2002set up the Scottish Public Services Ombudsman (SPSO). It replaced three previous bodies: the Scottish Parliamentary and Health Service Ombudsman, the Local Government Ombudsman for Scotland and the Housing Association Ombudsman for Scotland. SPSO's jurisdiction broadly covers devolved and local areas of government and related bodies. This includes local authorities; prisons (but not the police); the health service; registered social landlords; the Scottish Government, colleges and universities; and most Scottish NDPBs. He can handle complaints by or about private companies providing services on behalf of one of these public sector bodies.He can also receive complaints about one utility, Scottish Water, which remains state owned.[47]

42. The Northern Ireland Ombudsman is made up of two public offices: the Assembly Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints. The Office of the Ombudsman was established in 1969, but its current governing statutes are the Ombudsman (Northern Ireland) Order 1996 and the Commissioner for Complaints (Northern Ireland) Order 1996.The Northern Ireland Ombudsman's role is to deal with complaints of maladministration by Government and public bodies in Northern Ireland.[48]The Committee for the Office of the First Minister and Deputy First Ministerin the Northern Ireland Assembly, which undertakes a scrutiny, policy development and consultation role with respect to the Office of the First Minister and Deputy First Minister, recently proposed changes to the operation of the Northern Ireland Ombudsman.[49] The proposals would reform jurisdiction and powers and provide for the appointment of a Northern Ireland Public Services Ombudsman (NIPSO) by Her Majesty on the nomination of the Assembly. It would also provide for NIPSO to report to the Assembly and Assembly Committees on a basis to be laid down in Standing Orders.[50]

43. These ombudsmen, particularly in Scotland and Wales, are empowered by new laws that give thempower to act on behalf of the public. In evidence, ombudsmen suggestedthat these laws allowed them to offer an improved service. Dr Tom Frawley, Northern Ireland Ombudsman, said of the proposed changes being made in Northern Ireland that:

    Our colleagues in Wales and Scotland have very new legislation that is fit for purpose and fit for the time, and we have derived great benefit from looking at their practice.[51]

44. Jim Martin, Scottish Public Services Ombudsman, suggested to us that theparameters within which the PHSO workedare no longer fit for the delivery of an effective ombudsman service:

    The Scottish Parliament had the option of replicating the model in England when it created my office, and chose not to do so. It was a deliberate decision. My office is made up of an amalgam of previous UK ombudsmen coming to Scotland. I think the reason they did that is that the model in England is stuck in time. It probably was good for its time, but I think its time has passed.[52]

45. The restrictive legislation governing the Parliamentary and Health Service Ombudsman (PHSO) means it is unable to meet the standard set by Scotland, Wales, Northern Ireland and elsewhere. An ineffective instrument of democratic accountability cannot remedy failures in public service delivery. PHSO is impeded by out-of-date legislation so it fails to meet the expectations of today's citizens. It is, as Scotland's Public Service Ombudsman put it, in danger of being "stuck in time". The UK needs new legislation. The Ombudsman should be seen as a People's Ombudsman service as well as Parliament's Ombudsman. We address how this is to be achieved later in the report.

46. In our report, More Complaints Please!, we recommend that there should be a minister for government policy on complaints handling. In addition, we recommend that the minister also take responsibility for policy in relation to the Parliamentary and Health Service Ombudsman and that he or she should bring forward the new legislation required to enable citizens to have a simpler and more straightforward Ombudsman service that is responsive to citizens and their expectations.

38   Public Administration Select Committee (PASC), Fourth Report of Session 2009-10, Parliament and the Ombudsman, HC 107 Back

39   National Audit Office,Citizen Redress; what citizens can do if things go wrong in the public services HC (2004-2005) 21, p64 Back

40   Patrick Dunleavy et al, Joining up citizen redress in UK central government, In: Adler, Michael, (ed.) Administrative Justice in Context(2010) Back

41   The Law Commission, Public Services Ombudsmen, HC (2011-12) 1136 Back

42   Chris Gill, Jane Williams, Carol Brennan and Nick O'Brien,Queen Margaret University Edinburgh The future of ombudsman schemes: drivers for change and strategic responses (July 2013), p2-3 Back

43   As above, p4 Back

44   European Commission, New legislation on Alternative and Online Dispute Resolution (ADR) and (ODR), accessed June 2013 Back

45   National Ombudsman of the Netherlands, About the National Ombudsman of the Netherlands, accessed October 2013 Back

46   Public Services Ombudsman for Wales, Welcome to our website, accessed June 2013 Back

47   Scottish Public Services Ombudsman, We are Scotland's Ombudsman, accessed June 2013 Back

48   Northern Ireland Ombudsman, Welcome to the NI Ombudsman website, accessed June 2013 Back

49   Northern Ireland Assembly, Office of the First Minister and Deputy First Minister, accessed February 2014  Back

50   Northern Ireland Assembly, Report on Proposals for a Northern Ireland Public Services Ombudsman Bill, accessed February 2014 Back

51   Q72 Back

52   Q72 Back

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Prepared 28 April 2014