Removal of legal restrictions which prevent the main public sector ombudsmen from seeking to resolve a complaint without having to conduct a formal investigation.

E. Colville made this Freedom of Information request to House of Commons

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by House of Commons.

Dear House of Commons,

A 2005 Cabinet Office Consultation Paper "Reform of Public Sector Ombudsmen Services in England" states:

"Under the existing legislation, the powers of the public sector ombudsmen are limited to the formal investigation of complaints and there is no specific provision for more informal or alternative means of resolving a complainant's grievance or dispute, for example by mediation. The absence of such a provision is a burden on the public sector ombudsmen which prevents them from providing a more effective and efficient service for complainants. It is a burden because the public sector ombudsmen are obliged to conduct a formal investigation even though they might in a given case form the view that a less formal procedure would be a quicker and more cost effective way of resolving the issue which would clearly not only be to the benefit of the ombudsmen but also the complainant who would benefit from a more informal and efficient process. …..The objective of these proposals are to remove the legal restrictions which prevent the main public sector ombudsmen from ….seeking to resolve a complaint without having to conduct a formal investigation."
http://collections.europarchive.org/tna/...

My access request is for information on the particulars of whether and when Parliament agreed to "remove the legal restrictions which prevent the main public sector ombudsmen from ….seeking to resolve a complaint without having to conduct a formal investigation."

Yours faithfully,

E. Colville

E. Colville left an annotation ()

The background to my request is premised on a review of the parliamentary record including the following information (emphasis added):

On 18 October 1966 during the Second Reading of the PCA legislation the Leader of the House and Lord President of the Council, Richard Crossman asserted:

"We intend that the outraged citizen who persuades his Member to raise a problem SHALL HAVE A RIGHT TO AN INVESTIGATION , even where he has suffered no loss or damage in the legal sense of those terms, but is simply a good citizen who has nothing to lose and wishes to clear up a sense of outrage and indignation at what he believes to be a maladministration." http://hansard.millbanksystems.com/commo...

On 24 January 1967 at Third Reading there was this exchange with the Minister, Niall MacDermot:

"(Anthony Buck): " … IF THE PARLIAMENTARY COMMISSIONER WERE TO UNDERTAKE MATTERS OTHER THAN THOSE IN THE BILL, HE WOULD BE ACTING ULTRA VIRES. What would be required would be a short Act of Parliament. As I understand it, the Parliamentary Commissioner could not be authorised merely by Resolution of both Houses to undertake an investigation outside the ambit of the Bill. But perhaps the…Financial Secretary will indicate whether that view of the law is correct or not.

(Niall MacDermot): Where a person has an alternative remedy, whether to a tribunal or a court of law, that will not be an absolute bar to his case being investigated by the Commissioner, who will have a discretion in such cases as to whether or not to investigate. If he thinks that the case should more properly be dealt with by the alternative proceedings he will say so and, in the exercise of his discretion, will refuse to investigate. But if he is satisfied that there are good reasons why the complainant should not have recourse to those other remedies he will then be able to act." http://www.theyworkforyou.com/debates/?i...

On 7 July 1998 Michael Buckley Ombudsman gave the following evidence to PASC:

"(Mr Buckley) ….we are working frequently, if I can put it in these terms, against the grain of the legislation. We try to reduce our throughput times, we try to be more efficient and more responsive, but very often the procedures that are imposed upon us by the legislation—and this is particularly true of me as the Parliamentary Ombudsman—make it more difficult. … there is the fact that we think the time has come for a spring clean of the legislation….The majority of cases that I look at as Health Service Ombudsman are about things that have already happened, someone has perhaps died or there have been serious side-effects of an operation. There is nothing you can do immediately successfully to put that right. What the complainant is looking for is an investigation of the facts and an impartial judgment on what happened and that means quite often what the complainant is looking for, and what we therefore do, is a full investigation and we then commission advice from external experts and produce a report. All of that takes time. Similarly, on the parliamentary side we tend to get, as it were, cases that have got more history to them. ….we get a significant number of cases which are very old, very deeply entrenched, and that takes time. There is also the factor ….that the procedure laid on me by the Parliamentary Commissioner Act in particular is very elaborate. We have to decide whether it is in the jurisdiction, we have to send a statement of complaint and proposal to investigate to the principal officer and we then have to produce a report. Also, we are always concerned with the extent to which we can properly deal directly with the complainant rather than the referring Member. We are working with a more elaborate set of legislation in a situation where it is not altogether clear who our customer is, as it were. There are a lot of problems there."[para 4]]

"(Chairman): ...the Ombudsman's discretion category seems to have gone up from around the six per cent mark in 1995 and 1996 to over 20 per cent in 1997 or 21 per cent if we take a 15-month period, if I understand it correctly. Anyway it seems certainly to have gone up by 350 per cent as a share of the total of reasons for refusing to investigate. What is the reason for that?" [para 9]

"(Mr Buckley) The reason for that essentially is that it is a byproduct of OUR GREATER RESORT TO INFORMAL ENQUIRIES. We are getting more papers, we are finding out more, so we are able to say we have looked into this and there is a perfectly good explanation, no injustice, no maladministration, it is outside jurisdiction, whatever it may be.

You are working yourself out of a job in that sense then.
[para 10]

(Mr Buckley) In a sense.

(Chairman) .... The informal part of your Office's capacity is working the formal part out of a job. Is that right? You are getting far more cases resolved by informal mediation.
[para 11]

(Mr Buckley) We are.

(Chairman) Your Office is involved in that informal mediation in that you are giving guidelines.
… [para 12]

(Mr Buckley) Yes, we are reducing the number of cases we are investigating. One of the issues which comes up here is whether we are really doing ourselves justice by the way in which we present these figures. The reason we do it is that THE STATUTE SAYS EITHER YOU INVESTIGATE OR YOU PUT OUT A STATEMENT OF REASONS FOR NOT INVESTIGATING AND THAT COUNTS AS A REJECTION. A rejection just sounds to most people outside as though we are writing back and saying we are not going to do anything about this case. That is not true, we are doing things about a good number of these cases and one of the things I shall be considering for the next Annual Report is whether I cannot produce something which will stick to the statute but still give a truer picture of what we are actually doing.[para 12]

(Mr Buckley) ..We always have to choose between simplicity and accuracy…[para 15].
…..we are doing our best within the constraints of the Act TO RESOLVE MORE COMPLAINTS INFORMALLY by making informal inquiries of the Department, getting them sorted, rather than automatically assuming if there is something to look at we have to go through issuing a statement of complaint going through to full investigation. SO WHAT I MEAN IS WORKING, TO SOME EXTENT, AGAINST THE GRAIN OF THE ACT. I believe that I am within the Act but I am straining it. I have to be candid about that. Yes, we have done better but I think we could do a good deal better still if we were not subject to the constraints of the legislation. [para 27]
http://www.publications.parliament.uk/pa...

On 17 January 2000 the Minister, Lord Falconer, told Parliament:

"The procedure of the parliamentary ombudsman is a cumbersome business. In effect, it is prescribed by statute and involves three stages. First, the parliamentary ombudsman has to decide whether or not he can consider the complaint. Secondly, he must pass the complaint to the relevant department, which then considers the matter. Thirdly, once he has the department's response, the parliamentary ombudsman investigates the matter himself.

At the first stage, the parliamentary ombudsman has the option of deciding not to investigate. But, IN STATUTORY TERMS, HE CAN EITHER DECIDE NOT TO INVESTIGATE OR HAVE A FULL-BLOWN INVESTIGATION. IT IS QUITE DIFFICULT FOR HIM TO DO SOMETHING IN BETWEEN. He does his best to think of ways round that restriction, but it is a restrictive process. The idea that one would increase his workload by 44 per cent, without also looking at the manner in which he carries out his procedures, seems a very bad way to consider whether or not to change the position in relation to ombudsmen….
.
The third issue is what process is presently underway in order to see what should happen to the ombudsmen. In October 1998, the ombudsmen themselves …suggested that there should be a review of their procedures. They raised specifically…the issues about how their procedures could be improved. In response, and as part of the "modernising government" agenda, the Government set up a review of the procedures for ombudsmen. That review is considering the MP's filter and what improvements in procedure can take place…" (Column 965) http://www.publications.parliament.uk/pa...

A 2000 Cabinet Office Review of the Ombudsman explains:

"The screening process requires the PCA to take a prima facie view of the merits of the complaint and also to decide, by exercising his discretion under the 1967 Act, whether it would be an appropriate use of resources to investigate the complaint. In the later 1990s, the Ombudsman decided that his office had perhaps been requiring too much in the way of evidence from complainants to satisfy his office that there was a prima facie case. As the Cabinet Office review found: " There is much emphasis on establishing whether there is a prima facie case before the Ombudsman is prepared to investigate - this puts pressure on the complainant to (in effect) prove their case…. In his Annual Report for 1998-99 (para 1.6-1.8) the Ombudsman had already concluded that "there is a risk that the evidential burden can be set too high." In his Annual Report for 1999-2000, the Ombudsman explained: "It will still be right to refuse to investigate complaints when it is clear that they express nothing more than discontent with the substance of a discretionary decision. Otherwise, MY OFFICE WILL EXERCISE A CLEAR BIAS IN FAVOUR OF STARTING AN INVESTIGATION. The office began to give this modified approach effect from November 1999: since then, the proportion of complaints for investigation has risen by 6% (para. 1-14)."

On 31 January 2002 Christopher Leslie, Parliamentary Secretary Cabinet Office gave the following evidence to PASC:

" (Chairman): You mentioned within the memorandum that IT WOULD TAKE PRIMARY LEGISLATION TO PUSH THROUGH ALL OF THE CHANGES. You also state that it might be possible to make some of the changes by regulatory change. What sort of change would you be talking about there?


(Mr Leslie) …. The difficulty is that the legislation really is quite prescriptive ….. There are some real difficulties I think that are driving forward reform but in the meantime there are ways in which the day-to-day workings of the ombudsman can be improved. I think PRIMARY LEGISLATION IS THE REAL STEP THAT NOW NEEDS TO BE TAKEN.

(Chairman) That is a splendid ministerial answer. The problem is it does not tell me what I wanted to know…..(para 22) ..Let us just move on then and look in the memorandum at 7. YOU ARE SAYING THAT YOU WANT THE OMBUDSMEN TO BE ABLE TO RESOLVE COMPLAINTS RATHER THAN FORMALLY INVESTIGATE AND REPORT (para 30)

(Mr Leslie) No, not at all. If you think that the only mechanism for solving an individual's case is by producing a formal report that has to be set in stone and in legislation and then published, then perhaps you deal with your constituents in a different way than I do. I think the modern ability to pick up a telephone and knock heads together is often as effective as writing down a formal report. SOME OF THOSE LEGISLATIVE CONSTRAINTS ON THE OMBUDSMAN PREVENT THAT KIND PF WORK TAKING PLACE. Yes, we should have an approach for reporting, and if necessary exceptional reporting, to Parliament, and placing things in annual reports as well. If it is a day-to-day case that can be solved with a few conversations and getting individuals together from government, then surely that is the common sense approach we should all take?"

On 21 March 2002 a memorandum from Michael Buckley to PASC explained:

"We have built on the improvements to our working methods started in 2000. For example, in the first 11 months of this business year 39 per cent of complaints were resolved by enquiries of the bodies complained about, compared to 32 per cent at the same time last year. We also have had success in improving the speed with which we deal with complaints: 68 per cent of cases have either been resolved or a statement of complaint issued within six weeks. This compares to a figure of 64 per cent for the equivalent period in 2000-01. There is also a target of resolving matters (or issuing a statement of complaint) within 13 weeks in all cases other than those where there are reasonable prospects of resolution without initiating the investigation process. By the end of February only nine cases had exceeded 13 weeks (compared to 53 in 2000-01); and in six of those cases resolution had been imminent at the 13 weeks' stage. 3. By the end of February we had completed 173 statutory investigations and had discontinued investigation in 81 cases, as suitable resolution had been achieved. That these are slightly lower figures than 2000-01 reflects the fact that more cases are being resolved without the need to initiate an investigation. Even though an increased number of the more straightforward complaints were dealt with by enquiries of the body complained against, the average throughput time for completed and discontinued investigations has been maintained at 45 weeks;

…For most of the Office's history, the emphasis was very heavily on formal investigations, formal reports, and that indeed is very much the direction that the 1967 Act gives to the Office. I came to believe fairly early in my tenure as Ombudsman that that was increasingly unsatisfactory in modern conditions. Not only was it one of the reasons for the very large backlog which the Office had at the end of 1996, I believed it was not really suited to what so many people wanted. I have a rule-of-thumb distinction between a problem (which is something that can be rectified by action, as it were: the paying of a benefit or getting child support maintenance paid) and a complaint (which is when something has gone wrong and cannot be reversed and what is needed is explanation: for example, if a road has been built in the wrong place, it is not going to be taken up, but then what is needed is an investigation into what happened, why, and perhaps some sort of redress). The Office was good at dealing with complaints, with the elaborate investigation; it was not nearly so good at dealing with problems…. Increasingly, we have tried to push the Office in that direction, having more flexibility to deal with complaints/problems as they deserve, as their merits deserve, not to say that everything must be pushed into this investigation and reporting mode. That, I think, is the direction which we have taken, the direction which I think a new institution can take still further.

Since, for most of its history, the only way of dealing with a complaint, taking positive action on a complaint, was to issue a statutory report…on average a Member of the House of Commons has received a report perhaps once every three years. It does seem to me that if Richard Crossman had gone down for the second reading of the Bill in 1966, if he had been asked that question, "What is the workload of the Office?" and he had had a good crystal ball with him and had said what I have just said, he would have been laughed out of the chamber. ….The Office ….is particularly well equipped to pick up the difficult case for sustained investigation and so on. It has not been well equipped, it has not been successful, in dealing with the run of the mill complaints which are both the normal bread and butter work of most ombudsmen abroad and also—and I think this is all too often overlooked—a very necessary part of some of the wider lessons which an ombudsman can draw. (para 60)

(Chairman) If you were not getting such a modest quantity of complaints, how on earth would the Office operate?

(Michael Buckley) It would be necessary, of course, to change working methods…If one looks back a few years to see what happened when the Office received 1300/1500 complaints, it got into serious trouble. We have been able to deal with …2,000 complaints. In fact, we will have reduced the investigation backlog yet further by the end of this year. We have been successful in resolving a very large number of complaints informally and I think those methods could be taken still further….I cannot disagree with you, if the Office received two, three, five times as many complaints as it does now and tried to deal with them with historic methods, it just could not function. (para 61)

….THE WHOLE STRUCTURE OF THE ACT....…EMPHASISES INVESTIGATION AND REPORTING RATHER THAN RESOLUTION OF COMPLAINTS. I believe that is unhelpful. It is one of the reasons for the low output of the Office, the reason the Office does deal by international standards with relatively few complaints, and I believe the long-term implications are serious to Parliament. (para 62)

(Chairman) …if the Government keeps on dragging its feet about the fundamental reform of the whole Parliamentary Ombudsman system, would a good fall-back position be to try to sort out ….some of the problems with the original legislation causing problems about length of investigation?


(Sir Michael Buckley) ….I think one has to be clear: it is not just a matter of Parliament changing the one section of the Act …. certainly, provisions which enabled the Office to deal more flexibly and more expeditiously with complaints would be a valuable step…" (para 63)

Turning next to a 2005 Cabinet Office Consultation Paper "Reform of Public Sector Ombudsmen Services in England". It states:

"UNDER THE EXISTING LEGISALTION, THE POWERS OF THE PUBLIC SECTOR OMBUDSMENT ARE LIMITED TO THE FORMAL INVESTIGATION OF COMPLAINTS AND THERE IS NO SPECIFIC PROVISION FOR MORE INFORMAL OR ALTERNATIVE MEANS OF RESOLVING A COMPLAINANT'S GRIEVANCE OR DISPUTE, FOR EXAMPLE BY MEDIATION. The absence of such a provision is a burden on the public sector ombudsmen which prevents them from providing a more effective and efficient service for complainants. It is a burden because THE PUBLIC SECTOR OMBUDSMEN ARE OBLIGED TO CONDUCT A FORMAL INVESTIGATION EVEN THOUGH THEY MIGHT IN A GIVEN CASE FORM THE VIEW THAT A LESS FORMAL PROCEDURE WOULD BE A QUICKER AND MORE COST EFFECTIVE WAY OF RESOLVING THE ISSUE which would clearly not only be to the benefit of the ombudsmen but also the complainant who would benefit from a more informal and efficient process. …. THE OBJECTIVE OF THESE PROPOSALS ARE TO REMOVE THE LEGAL RESTRICTIONS WHICH PREVENT THE MAIN PUBLIC SECTOR OMBUDSMEN FROM ......SEEKING TO RESOLVE A COMPLAINT WITHOUT HAVING TO CONDUCT A FORMAL INVESTIGATION. "
http://collections.europarchive.org/tna/...

On 5 November 2009, giving evidence to PASC, Ann Abraham Ombudsman asserted:

" …we do look at and assess thousands of cases. It is only a few hundred that go through for full investigation…We intervene short of an investigation in quite a large number where we get some kind of positive resolution. So a lot is going on at the front end in our customer services and assessment process, and then our investigation directorates are taking for a full investigation a relatively small proportion of those.

(Chairman) …in 2006/07 you were taking 1,682 complaints for investigation,…and in 2008/09 that was down to 401. That is a huge change in the number of case taken on for investigation is it not?

(Ann Abraham) Of course…we subsequently wrote to you about the way our methodologies and terminology had changed over the years. I think it is only in the last two or three years, really, that there is a consistency of terminology which enable you to say actually those figures are comparable. I think that historically a lot of the thousand or more cases that you quote would have been called an investigation when, in fact, they were much nearer what we would now call an intervention. So I do not think it is very easy to track it,…we have tried to say a great deal more in the Annual Report about the sort of intervention work we are doing,…..Generally, if we say to a parliamentary body, in jurisdiction, "Somebody has come to us. We had a look at it. We think you could sort it out", the parliamentary body is more likely to say "okay" then we will take this back and we will take your steer on this and you will not see that again."
…..no complaint that comes to us is looked at in isolation any more, and we have a well developed system now in our casework management system - forgive me - what we call a "corporate taxonomy". Basically, it is a series of key words which will be around the area in which the complaint is happening ….So there is a range of data that we are collecting so that we can make connections across cases and every assessment will have a precedent check looking at what else is in the office from that Trust, from another GP practice, from that organization, whether there are similar issues. So the office…is pretty good, as part of a broader knowledge and information management programme, at making those connections across different complaints."

Fast forwarding to 2015, evidence of PHSO's discombobulating procedures and terminology is seen in this FOI request: https://www.whatdotheyknow.com/request/a...

On the inadequacies of trackability, precedent checking and review on the basis of any reliance on PHSO key word searches and data management systems see: https://www.whatdotheyknow.com/request/m...

Jt Oakley left an annotation ()

A very interesting request.

It may be that the PHSO has been dodging possible Judicial Reviews by not completing investigations ( with the requirement of proper decisions) by stating that it had done so to complainants.

FOI Commons, House of Commons

1 Attachment

Dear E Colville,

 

Thank you for your request for information dated 30 December 2015,
received by us on the same date, which is copied below.

 

We will endeavour to respond to your request promptly but in any case
within 20 working days i.e. on or before 28 January 2016.

 

If you have any queries about your request, please use the request number
quoted in the subject line of this email.

 

Yours sincerely,

 

 

Sarah Price | IRIS Support Officer
Information Rights and Information Security (IRIS) Service | House of
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FOI Commons, House of Commons

1 Attachment

Dear E. Colville,

 

 

Freedom of Information Request F15-601

 

Thank you for your request for information as copied below. You asked for
particulars of whether and when Parliament agreed to "remove the legal
restrictions which prevent the main public sector ombudsmen from ….seeking
to resolve a complaint without having to conduct a formal investigation."

 

The information you have requested is held by the House of Commons but, as
agreements made in Parliament are published in a number of locations
including the parliamentary website, it is already in the public domain. 
As the information you request is reasonably accessible to you otherwise
than under the Freedom of Information Act 2000 your FOI request is
refused. In refusing your request the House is applying the exemption set
out in section 21 (1) and (2) (a) of the FOI Act.  This is an absolute
exemption and the public interest test does not apply.

 

To be helpful, the change to the ability of the Ombudsman to resolve a
complaint without having to conduct a formal investigation was made by the
[1]Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007, 9
May 2007. The Order enabled the Parliamentary and Health Service Ombudsman
to “appoint and pay a mediator or other appropriate person to assist him
in the conduct of an investigation under this Act [the Parliamentary
Commissioner for Administration Act 1967].”

 

The following are the parliamentary documents and proceedings relating to
the passing of the Regulatory Reform Order.

 

The SI was considered by the Lords Committee on Delegated Powers and
Regulatory Reform and the House of Commons Regulatory Reform Committee:

·         House of Lords Select Committee on Delegated Powers and
Regulatory Reform, [2]Delegated Powers and Regulatory Reform, Fifth
Report, 2007

·         House of Lords, Select Committee on Delegated Powers and
Regulatory Reform, [3]Delegated Powers and Regulatory Reform, Tenth
Report, 23 May 2007

·         Regulatory Reform Committee, [4]Regulatory Reform, Second
Report, 6 March 2007

·         Regulatory Reform Committee, [5]Regulatory Reform, Fifth Report,
5 June 2007

 

The Regulatory Reform Order was passed in the Commons without debate
([6]Regulatory Reform, Draft SI, 26 June 2006). There was a short debate
on the Order in the House of Lords, which also then passed the Order
([7]Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007,
House of Lords, Debate on delegated legislation, 21 June 2007). The
Minister authorised the Order on 27 June 2007, and announced the Order
would be brought into force from 1 August 2007 (Written Statement, House
of Commons, 27 June 2007, [8]Public Sector Ombudsmen Services in England).

 

 

You may, if dissatisfied with the handling of your request, complain to
the House of Commons. Alternatively, if you are dissatisfied with the
outcome of your request you may ask the House of Commons to conduct an
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Commons, London SW1A 0AA or [9][House of Commons request email]. Please ensure
that you specify the full reasons for your complaint or internal review
along with any arguments or points that you wish to make.

 

If you remain dissatisfied, you may appeal to the Information Commissioner
at Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF,
[10]www.ico.gov.uk.

 

Yours sincerely,

 

 

Information Rights Manager
Information Rights and Information Security (IRIS) Service | House of
Commons

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