PHSO Annual Scrutiny 2017/18: Towards a Modern and Effective Ombudsman Service Contents

4PHSO’s role in improving public services

42.The independent peer review argued that:

The value of the PHSO is not restricted to resolving disputes between citizens and public bodies. There is a broader systemic value to its work, where dealing with complaints provides information that allows for change in public services.79

This is in-line with the PHSO’s strategy which has “working in partnership to improve public services, especially frontline complaint handling” as one of its three objectives.80 In oral evidence Peter Tyndall explained that he had always thought that “the core role of a public service ombudsman is twofold: investigating complaints and improving services”. The peer review concluded that the Ombudsman could deliver more value on the second role if he had the power to carry out investigations on his own initiative, not just into individual complaints he receives (“own initiative powers”); and the ability to set standards for how public services handle complaints before they reach the Ombudsman (acting as a “Complaints Standard Authority”).81

43.However, several of those submitting written evidence argued that the Ombudsman’s sole role should be adjudicating individuals’ complaints, with any improvement in public services coming as a result of his upholding them.82 One complainant, for instance, argued that wider engagement and improvement work was a “siphoning of resources away from casework to other, “softer” operations [and] therefore does not truly represent value for money”.83

44.Responding to this Dr Gill pointed out that, according to research by the National Audit Office, less than half of people unhappy with a public service would complain, and fewer still would escalate their complaint to an Ombudsman. Therefore, in his view, “if the ombudsman is only serving individual complainants, then it is not serving the public”.84 Mr Behren’s “brave hope” was that the PHSO’s work improving services would in the long-term reduce the number of people feeling the need to complain to the PHSO.85

45.The Committee agrees with Dr Gill that “if the ombudsman is only serving individual complainants, then it is not serving the public”. Impartially adjudicating complaints and providing redress to individuals who have suffered injustice or harm is its first responsibility. However, of itself, that is too narrow an interpretation of the Ombudsman’s role, and it is right to consider how else he can improve public services and potentially prevent people from suffering harm or injustice in the first place.

Systemic issues and “own initiative” powers

46.Peter Tyndall highlighted the PHSO’s “systemic work”, using the findings from individual investigations, or groups of linked ones, to make recommendations for wider reform to improve services, as a particular historic and ongoing strength of the organisation.86 In his evidence Rob Behrens pointed to the impact that the PHSO’s thematic report on Eating Disorders had had in stimulating “significant progress” within the NHS.87 The PHSO has also committed to moving to a default of publishing all its decisions in order to allow the public, professionals and researchers to track trends in its casework and hold organisations to account.88

47.However, the PHSO’s systemic work is limited by the fact that the Ombudsman can only investigate valid complaints that have been made to him.89 Peter Tyndall explained how, as Irish Ombudsman, he could expand an investigation to look at whether the injustice he found in one case was a systemic issue or an isolated case, without first receiving further complaints.90 He gave the example of investigating whether a mistake in calculating social rents made by one local authority was being repeated by others, that resulted in several other people receiving refunds who did not even known they had been overcharged.91

48.He also highlighted the potential for the Ombudsman to investigate cases where he had evidence of injustice but no specific complaint; often because the individuals involved were vulnerable and/or unwilling to make a complaint in their own name for fear of retribution.92 Rob Behrens suggested that it “undermined confidence [in the PHSO] when people think that we are ignoring an issue” that was very high profile, but he had not received a legitimate complaint he could investigate.93 He also noted that three quarters of ombudsmen in other countries had own initiative powers, and England was seen as being behind the times in this regard.94 In its 2014 report Time For a People’s Ombudsman Service the Committee’s predecessor recommended that the new Public Service Ombudsman be given an own initiative power.95 However, it was not included in the draft Bill.96 In 2018 the Northern Irish Ombudsman gained these powers and has launched her first investigations under them.97

Local Complaints and “Complaints Standards Authority” powers

49.The quality of how local NHS bodies deal with complaints about their services is a longstanding concern of this Committee and its predecessors, including the 2014 PASC Report More Complaints Please.98 In his evidence last year the Ombudsman highlighted the impact failures in local complaint handling had on individuals, and on the PHSOs caseload as it received more, and more complex, complaints that could have been resolved locally.99 In its report the Committee called on the Government to set out its proposals for improving the situation, and fulfilling its previous commitments.100

50.Asked if the situation had improved Mr Behrens was blunt.

No … What [NHS complaint handlers] say to me in private is that they want help, they don’t have the necessary resource, they don’t have the appropriate status, and they don’t have skills or training, which makes it very difficult for them to call into question the judgments of clinicians in hospitals. That should be a matter of concern for us all [emphasis added].101

He later explained that despite the improvements that had been made following the publication of the Francis Report into Mid Staffordshire NHS Foundation Trust in 2013;102

… my judgement is that the momentum for a more effective incisive complaints handling service across the NHS has fizzled out.103

51.In its response to the Committee’s last annual scrutiny report that criticised its failure to deal with this “unfinished business”, the Government promised to “share details of the revised Strategy [for handling complaints across the care system] with the Committee in the autumn.”104 It did not.

52.Although the PHSO’s strategy includes work to support the improvement of local complaint handling through the sharing of best practice, and potentially training, both the independent peer review and the Ombudsman have argued it could do more.105 They advocated giving the PHSO (or its successor) a statutory role in setting and regulating standards for local complaints handling within the public sector in England.106 The Scottish Public Services Ombudsman already has this role as the Scottish Complaints Standards Authority.107 Both Mr Tyndall and the Ombudsman highlighted the fact that the Scottish Ombudsman only has three members of staff devoted to this role as evidence that it would be unlikely to distract from the PHSO’s other work.108 PASC recommended in 2014 that the proposed reform of Ombudsman legislation should give the PHSO or its successor “the power to oversee complaints processes across its area of jurisdiction, and a formal role in setting standards and training in complaints handling.”109

53.In 2016 the Government published a draft Public Service Ombudsman Bill, which would create a new public service ombudsman for England combining the roles of the PHSO with the Local Government and Social Care Ombudsman and updating its powers and governance.110 This did not include these powers, but Mr Behrens suggested that when it came before Parliament it would provide a “once-in-a-generation opportunity” to address these and other issues.111 The Government has yet to commit to either introducing the Bill or submitting it to a Joint Committee of both Houses for pre-legislative scrutiny as this Committee recommended last year.112

54.Based on the clear and strong evidence from the members of the Independent Peer Review we reiterate the recommendation of our predecessor committee, PASC, that the Ombudsman should have the power to begin or expand investigations on his own initiative and be able to set local complaint handling standards. The Government should carefully consider the case made by the independent peer review panel when it decides to take the legislation forward.

55.The loss of momentum on the proposed Public Services Ombudsman Bill is disappointing. Given his detailed knowledge of the issue the Ombudsman’s view that momentum on improving local NHS complaints handling has “fizzled out”, despite the repeated conclusions of this and other Select Committees on the need for them to improve, is very concerning. Such a fizzling out would be unacceptable. We support the PHSO’s work to improve complaints in partnership with others. However, the PHSO cannot address a lack of resources or a failure to take complaints seriously within the NHS. That is a matter for Ministers and NHS England. The Committee invites the Ombudsman to use his powers to lay a report before Parliament setting out the PHSO’s insight from its casework into the state of local complaints handling in the NHS, and Government Departments. We also expect the Department for Health and Social Care to provide the update on its strategy on complaints that was promised last year as a matter of urgency.

79 Tyndall et al “Value for Money Study” p 3

80 PHSO “Annual Report and Accounts 2017–18” p15

81 Tyndall et al “Value for Money Study para 7.3

82 Wendy Morris (PSC0018) Della Reynolds (PSC0021)

83 Alan Reid (PSC0005)

86 Q8

95 PASC “Time for a People’s Ombudsman Service” para 72

96 Cabinet Office “Draft Public Services Ombudsman Bill”, CM 9374, 5 December 2016

97 Northern Ireland Public Services Ombudsman, “Own Initiative Investigations” accessed 11/03/2019

98 PASC, “More Complaints Please!”. Our and the Health Committee’s recent reports touching on this issue are summarised in PACAC “PHSO Annual Scrutiny 2016–17” paras 64–68

99 ibid

100 ibid

102 Robert Francis QC “Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry” HC 947, 6 February 2013.

104 PACAC Sixth Special Report of Session 2017–19 “PHSO Annual Scrutiny 2016–17: Government and PHSO Response to the Committee’s Third Report”, HC 1497, 25 July 2018, appendix 1.

107 Q81 see also SPSO “Complaints Standards Authority” [accessed 18/02/2019]

108 Q19 & Q81

109 PASC “Time for a People’s Ombudsman” para 77.

112 PACAC “PHSO Annual Scrutiny 2016–17” para 5

Published: 25 March 2019