DRAFT
Attachment 3
201[ ] No. 0000
DEFENCE
Armed Forces (Service Complaints Ombudsman
Investigations) Regulations 201[]
Made - - - - ****201[]
Laid before Parliament ****201[]
Coming into force - - ****201[]
The Secretary of State, in exercise of the powers conferred by sections 340H(2), (5) and (8), 340I(2) and (5) and 340L(5) and (7) of the Armed Forces Act 2006([14]), makes the following regulations:
Citation and commencement
1. These Regulations may be cited as the Armed Forces
(Service Complaints Ombudsman Investigations) Regulations 201[]
and come into force on [date to be inserted].
Interpretation
2. In these Regulations—
"in writing" includes communications -
(a) transmitted by electronic means;
(b) received in a legible form; and
(c) capable of being used for subsequent reference;
"the Act" means the Armed Forces Act 2006;
"the Ombudsman" means the Service Complaints
Ombudsman.
Provision of information in application to Ombudsman
3. An application to the Ombudsman under section 340H of
the Act must:
(a) state the maladministration which the complainant alleges
occurred in connection with the handling of the complainant's
service complaint;
(b) state any injustice which the complainant
considers he or she has or may have suffered as a result of the
alleged maladministration;
(c) state any facts in support of the alleged
maladministration under paragraph (a) and any resulting injustice
under paragraph (b);
(d) if the complaint is one in respect of which
there has been a decision in writing by the Defence Council in
accordance with regulations under section 340C of the Act, attach
a copy of that decision;
(e) if the complaint is one in respect of which
there has been a determination in writing of an appeal in accordance
with regulations under section 340D(1) of the Act, attach a copy
of that determination;
(f) state the date on which the complainant was
notified of the decision under paragraph (d) or of the determination
under paragraph (e);
(g) if the application is not made within the
period specified in regulation 6(1), the reasons why the application
was not made within that period.
Amendment of application and making supplementary
application
4. The complainant may
with the permission of the Ombudsman (which permission shall not
be unreasonably withheld) at any time—
(a) make a supplementary application;
(b) amend any information in the application
under regulation 3 or in a supplementary application.
Withdrawal of application
5. —(1)The complainant may, by notice in writing
to the Ombudsman, withdraw his or her application at any time
before the completion by the Ombudsman of the investigation under
section 340H(1) of the Act.
(2) Upon receiving a notice under paragraph (1), the Ombudsman
should send a copy of the notice to the Defence Council.
(3) On receipt of a notice under paragraph (1), the
Ombudsman must consider, having regard to that notice, whether
to begin, continue or discontinue an investigation.
Time limits: applications to the Ombudsman
6.—(1) Except as provided for in paragraph (2),
the application may not be made after a period of six weeks beginning
with the day on which the complainant is notified—
(a) in a case within regulation 3(d), of the decision referred
to in that paragraph;
(b) in a case within regulation 3(e), of the
determination referred to in that paragraph.
(2) An application may be made after the end of the
period specified in paragraph (1), if the Ombudsman considers
that in all the circumstances it is just and equitable to permit
this.
Requirements for information, documents and evidence
7. Where the Ombudsman requires a person to provide documents
or other information, he or she may:
(a) require those documents or that information to
be provided within such period as the Ombudsman considers reasonable
in the circumstances;
(b) specify the form or manner in which the
documents or other information must be provided;
(c) proceed with the investigation and the preparation
of a report under section 340L of the Act if the documents or
other information is not provided within that period, or are not
provided under paragraph (b).
Action following receipt of an application
8.—(1) If the Ombudsman decides not to conduct an
investigation, the Ombudsman must inform the complainant and the
Defence Council in writing of his or her decision and the reasons
for it.
(2) If the Ombudsman decides to begin an investigation, he must
send a copy of the application to the Defence Council as soon
as reasonably practicable.
Investigation procedure
9.—(1) The Ombudsman must give:
(a) the Defence Council, and
(b) any other person alleged by the complainant
to have been responsible for maladministration in connection with
the handling of the service complaint,
an opportunity to comment on any allegations contained
in the application.
(2) If the Ombudsman decides to hold an oral hearing
for the purposes of the investigation, the oral hearing must be
conducted in private, unless the Ombudsman considers that it is
[necessary] to hold all or part of the hearing in public.
(3) If the Ombudsman decides to hold an oral hearing
in public, the Ombudsman may impose such restrictions on attendance
at, or the reporting of, that hearing, as he or she considers
reasonable.
(4) Subject to paragraph (2), an investigation by
the Ombudsman must be conducted in private.
(5) The Ombudsman may decide that a person may be
represented, [including by a legally-qualified person],
in the investigation if the Ombudsman considers that is—
(a) necessary for the fair determination of the
investigation; or
(b) necessary to protect the rights or interests
of any person.
(6) The Ombudsman may pay to any person who attends
a hearing to give evidence or supplies documents or other information
for the purposes of an investigation—
(a) such sums as the Ombudsman may determine
in respect of expenses properly incurred by the person; and
(b) such allowances as the Ombudsman may determine
by way of compensation for the loss of the person's time,
subject to such conditions as he may determine.
Reports of investigation: preparation and confidentiality
10.—(1) If the Ombudsman sends a draft copy of the
report to any person for comments, he or she must take into account
any comments he or she receives from that person, refer to those
comments in the final report and state in that report his or her
response to those comments.
(2) Clerical mistakes in a report prepared by the Ombudsman under
section 340L of the Act, or errors arising in a report from an
accidental slip or omission, may be corrected by the Ombudsman
by certificate under his or her hand.
(3) The Ombudsman must send a copy of a report prepared
under section 340L of the Act to—
(a) any person who may, in the opinion of the
Ombudsman, be affected adversely by any of the findings or recommendations
in the report, and
(b) [persons who communicated an allegation
to the Ombudsman in accordance with section 340N of the Act, where
the report relates to a service complaint which was made in respect
of that allegation].
(4) The Ombudsman must send any certificate under
paragraph (2) to the Defence Council, the complainant and [any
person to whom a copy of the report must be sent under paragraph
(3)].
(5) If a report prepared by the Ombudsman under section
340L of the Act—
(a) mentions the name of any person other than
the Defence Council [or the Army Board, the Admiralty Board
or the Air Force Board], or
(b) includes any particulars which, in the opinion
of the Ombudsman, are likely to identify any such person and which
in the Ombudsman's opinion can be omitted without impairing the
[effectiveness] of the report, or
(c) includes any information which, in the opinion
of the Ombudsman, it would be against the interests of national
security to publish,
that information must not be included in a version
of the report sent to any persons in accordance with section 340L(6)
of the Act, unless the person or, for information referred to
in sub-paragraph (c), the Secretary of State consents.
(6) If the Ombudsman sends a copy of a report
to a person in accordance with section 340L(6) of the Act, the
Ombudsman may impose any obligation of confidentiality on that
person which the Ombudsman considers necessary and lawful in the
circumstances.]
(7) Marker for disclosure of information:
we may need to provide for the Ombudsman to be able to disclose
any information gathered for the purposes of an investigation
where that information is required by another body or a court
in accordance with statutory duties or for the purposes of litigation.
We will consider whether this will then not permit the disclosure
of any information which is prejudicial to the safety of the State
or otherwise contrary to the public interest, or information which
must be protected under other statutory or common law regimes.
[Subsequent applications to the Ombudsman
11. This regulation would set out any circumstances
in accordance with section 340H(8) of the Act in which a second
application may be made to the Ombudsman relating to the same
complaint. These are likely to be rare, and we want to consider
this further before proposing any firm rules. The sort of circumstances
we have in mind here are:
(a) where the final decision stage of the internal redress
process is effectively re-run following a finding of maladministration
and recommendation by the Ombudsman, i.e. because there needed
to be an independent panel of persons to consider the complaint;
or
(b) where the Ombudsman does not consider
all of the allegations of maladministration the first time round,
because for example it is sufficient to deal with just one of
those allegations, e.g. it was obvious that the decision-making
body needed to be changed to re-consider the complaint, and those
other alleged failures are not in the event corrected by the new
body, the applicant may be able to apply again to the Ombudsman
for an investigation.]
Guidance
12.—a) The Ombudsman may publish guidance from
time to time about the practices and procedures that the Ombudsman
will adopt in carrying out his or her investigations.
(2) Before publishing guidance under paragraph (1),
the Ombudsman must consult any persons the Ombudsman thinks appropriate.
Anna Soubry
Parliamentary Under Secretary of State
Date Ministry of Defence
( 14 ) 2006 c. 52. Sections 340H, 340I and 340L were
inserted by section 2 of the Armed Forces (Service Complaints
and Financial Assistance) Act 201*. Back
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