4 The case for open and direct access
47. Ease of access to an ombudsman is
recognised as an essential feature of any ombudsman service. The
statement on the role of ombudsmen agreed by the national ombudsmen
of all EU member states in 2007 says that:
the ombudsmen in the Network [of
European Ombudsmen] seek to facilitate free and equal access for
everyone who is entitled to make use of their services. Complaints
may normally be addressed to an ombudsman directly [...] Where
exceptions to the above principles are imposed by law, the ombudsman
seeks to minimise their adverse impact on complainants, as far
as possible.[53]
The restriction of direct access
48. The Parliamentary Commissioner Act
1967, from where the powers of the PHSO in respect of non-health
sector bodies derives, determines that "the Commissioner"
(PHSO) may only investigate any action taken by a government department
where:
a written complaint is duly made
to a Member of the House of Commons by a member of the public
who claims to have sustained injustice in consequence of maladministration
[...]the complaint is referred to the Commissioner, with the consent
of the person who made it, by a member of that House with a request
to conduct an investigation thereon.[54]
49. It was anticipated at the outset
that this procedure, known as the "MP filter", would
remain in place for just five years after introduction in 1967.
In 1961, before the Parliamentary Commissioner Act, a report by
Sir John Whyatt,The Citizen and the Administration: The Redress
of Grievances, recommended that "in the beginning"
the Parliamentary Commissioner should receive complaints only
from Members of the Houses of Lords and Commons, but that at a
later stage, when the Commissioner's jurisdiction was "established
and well understood", consideration should be given to the
public having direct access to the Commissioner.[55]The
"MP filter" does not apply to complaints about the NHS,
which can be made directly to PHSO.
50. A number of reviews have called
for the removal of the restriction on direct access to PHSO, recent
examples of which are summarised in Box 3.The 2005 NAO report,
Citizen Redress; what citizens can do if things go wrong in
the public services, found that the "MP filter"
was not well understood. When explained to those participating
in research, three out of four thought it was unhelpful and hard
to understand.[56] In
Parliament and the Ombudsman, the then PASC examined whether
the public should have to require their MP to sign a form in order
for PHSO to consider their complaint. That Report recommended
that citizens should have the right of direct access and noted
that:
Thisprovision was included in the
Act because of concerns that the role of the Ombudsmanwould undermine
the position of Members of Parliament in pursuing the grievances
oftheir constituents. This requirement, [...] has been controversial
sinceits inception, with calls for its abolition dating back to
1977.[57]
| Box 3: Past reviews and recommendations about the "MP Filter".
· 2000 - The Colcutt review, which considered whether Ombudsman arrangements "were in the best interest of complainants, reflected the "almost universal dissatisfaction" with the MP filter, and concluded that "the MP filter can no longer be sustained in an era of joined up government and we strongly recommend that it is abolished".[58]
· 2007 - The House of Commons Regulatory Reform Committee remarked in its Report on the Proposal for Regulatory Reform (Collaboration between Ombudsmen etc.) Order 2007 that, "We consider the requirement that complaints to the Parliamentary Ombudsman continue to be referred via a Member of Parliament to be long overdue for reform".[59]
· 2010 - The Law Commission suggested in the findings of its consultation on Public Services Ombudsmen that a dual track mechanism for complaining to PHSO could be preferable meaning that "the MP filter would no longer be a requirement. However, there would still be aprocedure allowing for a Member of Parliament to receive a complaint and thenforward it to the Parliamentary Commissioner".[60]
· 2011 - Ann Abraham, the then PHSO, consulted on whether the requirement for the MP filter should be removed. The consultation showed support for a "dual-track" approach, under which complaints could be made either via an MP or directly.[61]
|
51. PHSO told us that callers seeking
access to the service are deterred from pursuing their complaints
by the present procedure:
We know that of those where that
is the case and we then can send people a form to take to their
MP, between a third and half of those cases that are referred
back to the complainant to take to their MP never return to us
[...] I have sat on the phones with our staff myself and listened
to our staff explaining that someone needs to get a referral from
their MP, and the phone goes down. People have been so persistent
to get that far and they just reach a point where they just give
up, so it definitely has a dampening effect [...].[62]
52. Individuals expressed a reluctance
to approach their MP, for whatever reason, and disliked being
required to do so. One individual said:
It could be the case that having
to approach your MP for access to PHSO is a deterrent. The fact
that my MP does not hold regular surgery times made it difficult
for me to make an appointment with him and that may be a factor
for some individuals.[63]
53. The Local Government Ombudsman,
Dr Jane Martin, told us that individuals have been able to access
their service directly since the removal of a "councillor
filter" in 1988 and that the service has "dealt very
happily" which direct access ever since.[64]
Scotland and Wales do not operate the same kind of restriction
on access, and in Northern Ireland legislation is currently being
prepared that will remove this restriction. Jim Martin, Scottish
Public Services Ombudsman, told us:
I have never understood what you
are filtering. I hear the phrase 'MP filter', but I am not certain
where in the process you come in, what it is you actually filter,
and whether you all filter the same things in the same way.[65]
54. When asked about this issue, the
Rt Hon Oliver Letwin MP, the Minister for Government Policy, told
us:
My personal view is, given that
the Ombudsman herself does not think, as I understand it, that
this is a necessary feature on the scene, and given that the Law
Commission has recommended that we should not have it, we have
to take those things very seriously. My personal impression is
that all too often the MP signature is a cipher, so that MPs are
now very regularly signing off on these things. Therefore, whatever
utility it may have been judged to have had some way back I suspect
is now much diminished.[66]
55. Along
with all other informed opinion, we can find no justification
for restricting citizens' direct access to the Parliamentary and
Health Service Ombudsman for non-NHS complaints. It was intended
that the "MP filter" should be abolished after the first
five years of the Parliamentary Ombudsman. Citizens were given
direct access for NHS related complaints for good reason. The
continuing prohibition of direct access for all complaints is
the denial of equal access to administrative justice and is an
anachronism which is at odds with the expectations of today's
citizens. This defies all logic. It disempowers citizens, obstructs
access to their rights, and deters people from making complaints.
56. We recommend that the Government's
new legislation to create a simpler and more straightforward Ombudsman
service includes provision to abolish the iniquitous prohibition
on citizens' direct and open access to the Parliamentary and Health
Service Ombudsman (PHSO), known as the "MP filter".
This would allow citizens to make a complaint unimpeded to PHSO
in respect of all complaints about government departments and
public bodies, as is already the case in respect of NHS complaints.
The case for allowing telephone,
oral and online complaints
57. Which?,an independent, not-for-profit
consumer organisation,said that "it is essential that making
a complaint with the PHSO is as easy as possible" and as
such the requirements for consumers to submit complaints in writing
should be removed.[67]
This was echoed by others including Peter Tyndall, the Ombudsman
and Information Commissioner for Ireland and previously the Public
Services Ombudsman for Wales, who said:
Making it easy for people to complain
is straightforward: having a good website, having a good telephone
system and also recognising that some people still prefer to communicate
in writing.[68]
58. Many other privatesector ombudsmen,
including the Energy Ombudsman and the Legal Ombudsman,allow consumers
to submit their complaint over the phone, via email or in writing.
Jim Martin told us that although the statute governing his office
states that complaints should be made in writing, "we would
take it just about any way".[69]
PASC also learnt that the National Ombudsman of the Netherlands
accepts oral complaints and Dr Alex Brenninkmeijer, the current
Ombudsman of the Netherlands, emphasised how important it was
for an ombudsman service to be user-friendly, understanding and
supportive. Dame Julie Mellor, the current PHSO, told us that
she felt having to submit complaints in writing was "remarkably
old-fashioned" and that:
obviously we find ways around it,
and we will write things up for people where they tell us
verbally on the phone, but it is going to be a lot more straightforward
if we can just operate in the digital age.[70]
59. The
manner in which a complaint is handled is a key part of the provision
of redress, even if the complaint itself is not actually upheld.
Allowing complaints to be submitted in person, by telephone, or
online would empower more people to make complaints to the Parliamentary
and Health Service Ombudsman (PHSO). The requirement that all
complaints to PHSO must be in writing presents a barrier to access
and is out of step with other ombudsman services. For many people,
form filling is an anathema to an understanding and supportive
approach. It constitutes an unjustified barrier to those who lack
literacy skills, and is out of date in a world where so much customer
service is now delivered online, in person, or via the telephone.
60. We recommend that the Government's
new legislation to create a simpler and more straightforward Ombudsman
serviceshould allow complaints to the Parliamentary and Health
Service Ombudsman to be made other than in writing, such as in
person, by telephone or online, just as is expected of other complaints
systems.
53 European Ombudsman, The European Network of Ombudsmen - Statement,
accessed September 2013 Back
54
Parliamentary Commissioner Act 1967, Section 5 Back
55
John Whyatt, The Citizen and the Administration. The Redress
of Grievances in The International and Comparative Law
Quarterly, Vol. 11, No. 2 (April 1962), pp. 610-614 Back
56
National Audit Office,Citizen Redress; what citizens can do
if things go wrong in the public services HC (2004-2005) 21,
p64 Back
57
Public Administration Select Committee (PASC), Fourth Report of
Session 2009-10, Parliament and the Ombudsman, HC 107,
p3 Back
58
Collcutt, Philip & Mary Hourihan,Review of the public sector
ombudsmen in England,April 2000 Back
59
Select Committee on Regulatory Reform, Proposals for Regulatory Reform (Collaboration between Ombudsmen etc.) Order 2007,
HC 383 Back
60
The Law Commission, Public Services Ombudsmen(July 2011), HC 1136 Back
61
Parliamentary and Health Service Ombudsman, Report on the consultation on direct access to the Parliamentary Ombudsman (November
2011) Back
62
Qq211-214 Back
63
Della Reynolds (PHS19) Back
64
Q131 Back
65
Q79 Back
66
Oral evidence taken on 16 October 2013, HC (2013-14) 229, Q435
[Rt Hon Oliver Letwin MP] Back
67
Which? (PHS17) Back
68
Q105 Back
69
Q90 Back
70
Q210 Back
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