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Lord Roberts of Conwy: I am most grateful to the noble Lord for explaining the position, which I did not
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know in the detail that he has given, and for reminding us of the ombudsman's discretion. I am satisfied with what I have heard and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Roberts of Conwy moved Amendment No. 21:
The noble Lord said: Amendments Nos. 22 and 23 are also included in this group. These are probing amendments.
One could think of all kinds of reasons why an aggrieved person might find the one-year requirement difficult to meet. The year begins,
"on the day on which the person aggrieved first has notice of the matters alleged in the complaint".
That is very precise and begs the question what is "notice" in this context. Is it when the complainant first brings the matter to the attention of the relevant authority, or when the authority replies in an unsatisfactory way, causing the complainant to object? Or is it still further back in time—the occasion of whatever causes the complainant to approach the authority? There seems plenty of scope for argument here, but the final arbiter is the ombudsman himself and there is no appeal against his decision. I can well understand the need for some sort of time limit but must it be quite so precise and yet imprecise at the same time, and open to question? I shall be interested to hear what the noble Lord says about it.
Amendments Nos. 22 and 23 deal with the same problem of defining the starting date of a complaint in paragraphs (b) and, to a lesser extent, (d) of Clause 6(1), as in Clause 5(1). Paragraph (d) is clear in that it defines the start of the year as being,
Whatever may have happened to the complaint since the authority had received it, if it does not reach the ombudsman within a year it will be out of time and presumably subject to the ombudsman's discretion as to whether he deals with it or not. Does he have discretion if there has been delay or dilatory tactics used? The noble Lord, Lord Prys-Davies, touched on that point earlier.
If we work back from Clause 6(1)(d), in which the start day is defined as the day on which the complaint was made to the listed authority, the start date in Clause 6(1)(b) cannot be the same. Similarly, the start date in Clause 5(1)(b) cannot be the same. I need further clarification, but I may be somewhat dilatory myself in understanding the provision. I beg to move.
Lord Prys-Davies: I had understood the phrase,
to mean the date when he first became aware that he had a cause of complaint. I shall be interested to hear my noble friend's explanation.
Lord Roberts of Conwy: My point was: when does one become aware of the fact that one has a complaint?
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It could be when one writes to the authority or it could be when one receives an unsatisfactory reply from the authority. Those will be different dates.
Lord Prys-Davies: Yes, I am grateful for that. Surely one cannot be absolutely certain of the date when one appreciates that one has a cause of complaint, but I had understood it to mean when he or she appreciated that the service that he or she had received was defective and could, on grounds of maladministration, lodge a complaint with the ombudsman.
Earlier—possibly at the wrong stage—I raised the case of an aggrieved person who makes a complaint to the listed body within the time limit but the listed body rejects it after the expiration of the time limit. Perhaps my noble friend can confirm whether the ombudsman would be able to receive that complaint.
Lord Evans of Temple Guiting: Amendment No. 21 would remove the general requirement that the complaint must be made to the ombudsman before the end of one year after the date that the person aggrieved first had notice of the matter alleged in the complaint. We must define the word "notice" as, "knows or ought reasonably to have known what was happening". With that explanation of the word "notice", we can see that, if necessary, the ombudsman can use his discretion.
It is entirely reasonable to expect a person who believes he has suffered injustice or hardship as a consequence of the action of a listed authority and wants to make a complaint to the ombudsman to do so within a reasonable time. We believe that a period of one year from the date that the person aggrieved first has notice of the matter that gives rise to the complaint is reasonable.
The ombudsman is expected to consider or investigate a complaint in a way that is fair and equitable to all parties concerned. He is neither for nor against the citizen or the listed authority. That will help to ensure that all parties can still respond fully to a complaint as the matter should be within recent memory and records should still be available. However—this point is crucial—the ombudsman is not prevented from considering a complaint the genesis of which is more than one year old. The ombudsman may accept such a complaint made outside the normal time limit if he or she decides that, in the particular case, it is reasonable to do so. That important protection for the citizen is provided for in Clause 2(4).
Another important protection for the person aggrieved is that the one-year time limit runs from the date that he or she first has notice of the matter giving rise to the complaint and not from the date of the event itself. The argument for retaining the time limit in Clause 6(1)(b) is essentially the same as the one that I adduced for complaints that are made directly to the ombudsman—that is, to ensure finality in relation to decisions or actions of listed authorities and to ensure that complaints are made within a reasonable time of the events giving rise to them so that the risk of fading memories and lost or damaged documents and so on is minimised.
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The time limit does not relate to complaints to listed authorities generally. It does not prevent a listed authority considering a complaint, even if the complaint is made 50 years after the events giving rise to it. Whether the listed authority accepts the complaint—for example, for consideration under its own complaints procedure—is a matter for the listed authority.
The time limit in Clause 6(1)(b) applies only in the context of complaints made to listed authorities, which are then referred by that listed authority to the ombudsman. The time limit is entirely reasonable and appropriate for the reasons I have explained. Furthermore, the ombudsman has discretion under Clause 2(4) to accept a referred complaint even if the time limit has not been complied with if he considers it reasonable to do so.
The noble Lord, Lord Roberts of Conwy, asked whether the start dates of the time periods in Clauses 6(1)(b) and 5(1)(b) are different. It could be the case that the aggrieved person makes a complaint to a listed authority, but that the listed authority acts in a dilatory manner, so there is an unreasonable delay. It is true that the time period in Clause 6(1)(b) starts on the date the complaint is made to the listed authority, but the person aggrieved can always complain directly to the ombudsman, who would look at the case on its facts. If the delay of the listed authority has taken the aggrieved person outside the time limit set in Clause 5(1)(b), he may well disapply that time limit and accept the complaints. As I have said, it is a matter for the ombudsman in each case.
Before I sit down, I must apologise to my noble friend Lord Prys-Davies. I gather that the answer to his question is, "Yes", but I have forgotten what the question was.
Lord Prys-Davies: The question that I asked earlier and perhaps prematurely was: if the aggrieved person had made a complaint to the listed body and the complaint was rejected after the expiration of the 12 months, would the ombudsman be in a position to accept the complaint and, if he thought it appropriate, launch an investigation?
Lord Evans of Temple Guiting: He would be able to under the provisions in Clause 2(4).
Lord Roberts of Conwy: I am again grateful to the noble Lord for his detailed explanation. I think that we are all saved by the ombudsman's discretion. In his further consideration of the Bill, the noble Lord may wish to note the differences in Clauses 5 and 6 in the definitions of that year's start. There are three definitions and it may be possible to reconcile them. Leaving the noble Lord with that thought, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Requirements: complaints referred to the Ombudsman]:
[Amendments Nos. 22 and 23 not moved.]
Clause 6 agreed to.
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Clause 9 [Exclusion: other remedies]:
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