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

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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Prepared 28 April 2014