November 3rd

by Peter Tyndall

This article originally appeared in the Cambrian Law Review (paywall)

Abstract

This article places the development of the Public Services Ombudsman for Wales within an international and UK context.  It considers how it compares against published criteria for Ombudsman schemes covering such areas as independence, access, fairness, openness and effectiveness. It concludes that it has many positive features but some scope for improvement to its legislative underpinnings.  It sets out possible future development to bring it in line with best international practice including enhancements to its powers and extensions to its jurisdiction.   

 

Introduction

Public Services Ombudsmen are the final tier in the complaints system, short of the courts.  The Law Commission, in their 2010 report on Administrative Redress described them as one of the four pillars of administrative justice.[1]  They said that “The first pillar consisted of internal mechanisms for redress, such as formal complaint procedures. The second pillar was composed of external non-court avenues of redress, such as public inquiries and tribunals. The third pillar consisted of the public sector ombudsmen. Finally, the fourth pillar was formed by the remedies available in public and private law by way of a court action.”[2]

Ombudsmen are independent of the services in their jurisdiction, use an investigative rather than an adversarial methodology, are free to use and are objective arbiters of complaints, rather than advocates for service users.  However, where they discover that there has been an injustice because of a failure on behalf of a public body, they make recommendations to put things right.  They have a dual role, investigating complaints and improving services.  They will seek to identify where complaints have occurred because of a systemic failing and aim to put things right for the individual, but also seek changes to processes or procedures or other improvements to services in order to prevent error from recurring.

Unlike the courts, the Ombudsman seeks to find evidence of maladministration.  This can be caused by a non-compliance with the law, but can equally be a product of unfairness, delay, sloppy procedures or human error.  This wider jurisdiction means that the role of the Ombudsman complements that of the courts and the investigative process means that the complainant does not need to give evidence in an adversarial context and does not need funding in order to access justice.

The modern use of the term Ombudsman began in Sweden, with the Swedish Parliamentary Ombudsman, an office created in 1809 to safeguard the rights of citizens by establishing a supervisory agency independent of the Government.[3]  Although this institution shares many characteristics with the institution of Ombudsman as it has developed worldwide, it also has the characteristics of a regulator, having oversight of the courts and prisons, for example.  It was the development of an Ombudsman institution in Denmark however, which marked the forerunner of the offices of Ombudsmen we are familiar with today.

The Danish Parliamentary Ombudsman was established in 1955 to investigate complaints brought by an individual or by the Ombudsman using his or her own initiative, in all matters relating to public governance, including maladministration by central or local authorities.[4]  The Danish Ombudsman can investigate both individual cases and problems affecting many people, so called systemic investigations.  The Ombudsman is appointed by the Danish Parliament.  This model has since been widely adopted across the world, and is very close to the model subsequently adopted in Wales.  The wide spread of the Ombudsman concept is evidenced by the fact that the International Ombudsman Institute[5] now has members in more than 90 countries.

The first Ombudsman office in the English speaking world was established in New Zealand in 1962.[6]  At the time there were only three other Ombudsmen internationally, in Sweden, Finland and Denmark.  This office followed the Danish model, and was the precursor of the subsequent developments in the UK.

 

Ombudsman offices in the UK prior to devolution

The UK Parliamentary Ombudsman was established in 1967,[7] and subsequently became the Parliamentary and Health Service Ombudsman.  This Office was a precursor of the Public Services Ombudsman for Wales (hereafter PSOW) and was responsible for the Health Service in Wales and other aspects of public services subsequently devolved.  The holder of the Parliamentary and Health Services Ombudsman’s post also held the offices of Welsh Administration Ombudsman and Welsh Health Ombudsman prior to the creation of the PSOW.

The first devolved Ombudsman service in the UK was the Northern Ireland Ombudsman’s office which was established in 1969.[8]  It can be regarded as being a response to the Civil Rights Movement which at this time was protesting about discrimination and unfairness in public administration there. 

The Local Government Act 1974 (the '1974 Act') established the Local Government Ombudsmen (LGOs) for England and for Wales.  The Welsh Local Government Ombudsman was based in Bridgend and was devolved from the outset.

The final piece in the pre-devolution jigsaw was the arrangements for dealing with complaints about housing associations, a power which rested with the Housing Division of the Welsh Office.  After devolution, it was evident that an opportunity existed to bring together the various independent redress mechanisms into a single Public Services Ombudsman for Wales.  This was achieved through the passing of legislation in Westminster, as the necessary legislative powers were not available to the National Assembly for Wales at that point.

 

The establishment of the Public Services Ombudsman for Wales

The Public Services Ombudsman Wales (Act) 2005 was to a large extent based on legislation passed by the Scottish Parliament in 2002.  However, the opportunity was taken to enhance elements of this legislation resulting in, for example, greater independence and better reporting arrangements.  It was widely regarded as among the most advanced legislation governing an Ombudsman institution internationally and has since been used as the model for new draft legislation in Northern Ireland.[9]

The Office was built on those of the Welsh Local Government Ombudsman and the Welsh Administration and Health Ombudsman but was conceived as a new office rather than a merged one.  The first PSOW was Adam Peat OBE.  The jurisdiction of the PSOW included most public services devolved to Wales, thus giving it a comprehensive remit able to address most concerns from users of public services in Wales.  Non-devolved services remained within the jurisdiction of the UK Parliamentary Ombudsman.

 

Criteria for evaluation

A useful way to consider the relative merits of an Ombudsman scheme is to measure it against the recognition criteria of national and international organisations.  The British and Irish OmbudsmanAssociation (usually known as the Ombudsman Association, hereafter OA) has set out clear criteria which Ombudsman schemes must meet in order to qualify for recognition.

I will go on to consider the governing legislation and practice of the PSOW in light of these criteria, demonstrating a high level of compliance but also identifying some areas where enhancement is desirable.

The OA rules set out five key criteria for Ombudsman members.  These are Independence; Fairness; Effectiveness; Openness and Transparency, and Accountability.  These are used to determine eligibility for membership, but also to establish whether existing schemes continue to meet the criteria.  The PSOW was recently re-validated against these criteria and was commended as a model to other schemes.[10]

 

Independence

The first aspect I wish to consider is independence. The rules of the OA set out the key aspects of independence very clearly.

  • They say that the Ombudsman must be visibly and demonstrably independent from those whom the Ombudsman has the power to investigate.
  • The persons who appoint the Ombudsman should be independent of those subject to investigation by the Ombudsman.
  • The term of office should be of sufficient duration not to undermine independence. The appointment should be for a minimum of five years. It may be subject to renewal but the renewal process should not undermine or compromise the office holder’s independence.
  • The remuneration of the Ombudsman should not be subject to suspension or reduction by those subject to investigation.
  • The appointment must not be subject to premature termination other than for incapacity or misconduct or other good cause. The grounds on which dismissal can be made should always be stated, although the nature of the grounds may vary from scheme to scheme. Those subject to investigation by the Ombudsman should not be entitled to exercise the power to terminate the Ombudsman’s appointment.
  • The Ombudsman alone (or someone acting on his or her authority) must have the power to decide whether or not a complaint is within the Ombudsman’s jurisdiction. If it is, the Ombudsman (or someone acting on his or her authority) must have the power to determine it.  The Ombudsman’s determination should be final and should not be able to be overturned other than by the courts or an appeal route provided for by law.
  • The Ombudsman should be accountable to a body independent of those subject to investigation. That body should also be responsible for safeguarding the independence of the Ombudsman.

 

Looking at all of these criteria, we can consider some key features.  Preferably, public service ombudsmen should be established as officers of the Constitution.  However, in the absence of a Constitution, they should be established by law, as is the case in Wales.

They should report to their Parliament, having the power to make annual reports but also such special reports as they think important.  This is especially the case in respect of decisions of bodies in jurisdiction not to implement their findings.  The ability to ask the Parliament to hold Government bodies to account is essential if recommendations are not binding.  In Wales, the Ombudsman reports to the Assembly, and not to the Government.  This is fully compliant with the requirement.  The ability to bring reports to the Assembly (in practice via a Committee) if a body in jurisdiction does not comply with a recommendation ensures that there is democratic accountability.

The appointment should be by a vote in the Parliament.  The best arrangements use open recruitment processes to select a candidate or candidates for consideration by the Parliament.  They are conducted by Parliamentarians who are not members of the Government, with the administration undertaken by the officials who support the Parliament, not Government staff, with support from independent assessors, often other Ombudsmen.  This arrangement precisely describes the process in Wales. The Ombudsman is appointed by the Queen following a vote in the Assembly.  The recruitment process is administered by the staff of the Assembly and is led by the relevant Committee Chair.  Full public appointments processes are applied with advice from HR experts and the Panel includes another Ombudsman as an expert consultant.  There are few, if any, international examples where such an open and transparent approach is pursued.

The funding of the Office should be provided by the Parliament, not by the Government.  In the case of the PSOW, the budget is prepared by the Ombudsman and considered by the Assembly’s Finance Committee.  This makes the office fully financially independent from the bodies in jurisdiction.  An example of the problems which can arise when this is not the case can be seen in the early days of the Ombudsman for Ireland. 

Michael Mills, the first Ombudsman of Ireland, incurred the displeasure of the Government of the day in the 1980s with his outspoken, but justified, reports.  In response, the Government savagely cut the funding of the office making it all but impossible for it to do its job.  Michael Mills appealed to the Oireachtas, the Irish Parliament, and had his budget largely restored.[11]  This incident, and others like it, highlights the need for adequate budgets and budgetary independence.  Independence is hollow without the ability to do the job.

The Ombudsman’s term of office should be long enough to enable them to focus on the work in hand, and not their next appointment.  Increasingly, Ombudsmen are on single, fixed-term appointments, often of seven or eight years.  There are other models, which can bring problems.  Ombudsmen who have to stand for re-election following the election of each parliament, for instance, are often tempted to adopt a higher profile.  Ombudsmen with shorter terms of office, who want their contract renewed, can be tempted to downplay their criticism of the administration towards the end of their contract, and have been known to then be highly outspoken once they have been reappointed.  There is little evidence of good practice on reappointment.  My own view is that there should be clear criteria for reappointing, essentially making it normal to do so unless there are compelling reasons to the contrary.  The existing Ombudsman should either be reappointed or not, before any recruitment exercise involving other candidates is considered.  If contracts are for a fixed term, it is best that this should be for a single, longer term rather than renewable.  In Wales, the Ombudsman has a single, fixed-term contract of seven years, again, in line with the best international practice.

The removal of an Ombudsman from office is thankfully a very rare phenomenon.  It should only be possible on grounds of illness or where there are overwhelming grounds to do so.  It should follow the same route as the appointment – a vote in the Parliament.  The arrangements in Wales are fully consistent with this.

The criteria do not specifically mention the staff of the office, although these can be fundamental as to how it is perceived.  The ability of the Ombudsman to recruit his or her own staff is vital in ensuring that they have the necessary skills and attributes to undertake the work effectively.  Where staff are seconded in from bodies in jurisdiction, or form part of the wider civil service, there can be a perception that their loyalties are to their original employer, and that their neutrality is compromised.  In Wales, the Ombudsman recruits staff directly.

 

Fairness

The other components of the OA criteria include fairness, which requires that the Ombudsman should be impartial, proceed fairly and act in accordance with the principles of natural justice.  The Ombudsman should make reasoned decisions in accordance with what is fair in all the circumstances, having regard to principles of law, to good practice and to any inequitable conduct or maladministration.  In all cases where it is decided not to accept the complaint for investigation, the Ombudsman should notify the complainant of that decision and the reasons for it. 

 

Effectiveness

In considering effectiveness The OA criteria say that the office of the Ombudsman must be adequately staffed and must be funded, either by those subject to investigation or from public funds, so that complaints can be effectively and expeditiously investigated and resolved.  In practice, the Ombudsman’s Office has been able to secure the funds it needs to do its work.  As with other public sector bodies, its level of funding was restricted, as it chose to reflect the level of funding available to Wales through the devolution settlement in the budgets it put forward to the Assembly.  Nonetheless, despite significant growth in demand, its performance improved as it used improved processes and systems to increase productivity.

The Ombudsman should expect those subject to investigation to have accessible and fair internal complaints procedures.  The PSOW, in common with other Ombudsman schemes, issues guidance on good complaint handling.  It also worked with the Welsh Government in developing a Model Complaints process, which has been widely adopted across the Welsh public sector.  While this represents good practice, and is in advance of most international practice, it falls some way short of the position in Scotland where the Ombudsman has statutory authority to determine the complaints systems to be used by public service providers.  This issue is further addressed below.

One key measure of effectiveness is that the Ombudsman’s decisions are implemented.  While statutorily based private sector schemes usually have legally binding powers, public sector schemes normally make recommendations, as is the case with the PSOW.  The OA says that there should be a reasonable expectation that the Ombudsman’s decisions or recommendations will be complied with. In all those cases where they are not complied with, the Ombudsman should have the power to publicise, or require the publication of such non-compliance at the expense of those investigated.

The PSOW can require such publication but can also bring non-compliance to the attention of the Assembly.  In practice there is a 100% compliance rate, which is obviously highly desirable but also exceeds the normal levels of compliance with public schemes, which are normally very high, but not complete.  Neither have decisions of the Ombudsman faced judicial review.  That said some non-compliance or judicial review cases may well arise in the future but these would not detract from the historically excellent levels of compliance.

The PSOW has well considered reporting arrangements.  Where a case is investigated, a report is produced, even where the complaint is not upheld.  Most reports are not specifically published, and are produced under Section 21 of the PSOW Act.   Reports where the body under investigation does not propose to implement the recommendations, or where the subject matter is of public interest, because the matter investigated is of such gravity or where the failing is likely to have affected individuals other than the complainant, are publically published under Section 16 of the Act. Such reports typically attract considerable public attention and are effective in securing change. The threat of adverse publicity and the consequent reputational damage is often influential in persuading bodies to accept recommendations when they might otherwise be tempted not to do so.  Because of the learning which can be implicit in the non-published reports, the PSOW became one of the first Ombudsman schemes to publish the outcomes of all investigations.  These are included in the Ombudsman’s quarterly casebook aimed at public service providers, an initiative now much copied elsewhere.

 

Openness and Transparency

On accessibility the OA says that the right to complain to the Ombudsman should be adequately publicised by those subject to investigation.  In Wales, there is a statutory requirement that bodies in jurisdiction notify complainants of their right to complain to the Ombudsman and the evidence of the Ombudsman’s consideration of complaints suggests that this works well. The PSOW also makes good use of the media, including advertising, and links with advocacy bodies, to ensure that its service is brought to the attention of those who may wish to use it.

Complainants should normally have direct access to the Ombudsman scheme.  If, exceptionally, this is prevented by law, the Ombudsman should seek to minimise the adverse impact on complainants.  Whereas the arrangements for the UK Parliamentary Ombudsman require complainants to put their complaints via their MP, access to the PSOW has been direct from its inception. 

The OA stipulates that the Ombudsman’s procedures should be straightforward for complainants to understand and use.  The PSOW has developed a simple complaint form, which is compatible with that used in the Model Complaints Policy.  There has also been a particular effort made to make on-line complaining easy.  The on-line complaints form which is shared with Complaints Wales signposting service operated by the PSOW, takes people step by step through the complaint form and can also route complaints to other Ombudsman schemes where appropriate or to the body complained about if they have not yet had an opportunity to resolve the complaint.  This is alongside a telephone-based Complaints Advice Team, which has the capacity to resolve many complaints directly and puts the PSOW at the cutting edge of Ombudsman schemes internationally.  

The PSOW has discretion as to how to resolve complaints and will often seek to settle matters informally without the need for a full formal investigation.  This can ensure that the complainant gets a prompt outcome, but in order to ensure that there is learning from such informal complaint resolution, examples of so-called “Quick Fixes” are also included in the Ombudsman’s Casebook.

The OA also says that the Ombudsman should be entitled to investigate any complaint made within the jurisdiction without the need for any prior consent of the person or body against whom the complaint is made. This does not preclude a requirement that before the Ombudsman commences an investigation, the complainant should first have exhausted the internal complaints procedures of the person or body being investigated.  The PSOW can commence an investigation on the basis of a complaint without permission but usually asks the complainant to first use the complaints process of the body complained about.  However, the PSOW does have discretion to take complaints directly and does so where for example, the matter is highly urgent as in the case of complaints about access to potentially life-saving treatment or where it is evident that the relationship between the complainant and the body complained about has irrevocably broken down.

The PSOW has the power to require all relevant information, documents and other materials from those subject to investigation and can issue summonses if required and certify non-compliance to the High Court.  The powers in this regard are broadly consistent with those of a High Court Judge and, again, are consistent with best international practice.

The PSOW is entitled, but not obliged, to disclose to the complainant or to the person being investigated any information, documents and other materials that have been obtained unless there is some special reason for not disclosing them, for example, where sensitive information is involved or disclosure would be a breach of the law.

The PSOW also complies with the requirements for openness and transparency with sound arrangements as described above for bringing the scheme to the attention of potential complainants, good details on its processes being readily available as well as Fact Sheets dealing with common areas of complaint.  Its governance and funding are both set out in legislation and in the publically available proceedings of the relevant Committee of the Assembly, it produces an Annual Report and regular reports on its casework as described above and has a published Corporate Plan setting out its management arrangements and targets.  The Annual Report and Budget are both scrutinised by the relevant Assembly Committees and the Annual Accounts are audited by the Auditor General for Wales.

 

Good Governance

The PSOW also complies with the Good Governance Guidelines of the OA which is a requirement for recognition.  The Ombudsman is a corporation sole in recognition of the quasi-judicial nature of the role and in order to secure independence.  In addition, the PSOW has established an Advisory Committee and an Audit Committee the members of which are recruited following public sector appointment criteria.

The PSOW has the power to co-operate with other Ombudsmen and Commissioners and Memoranda of Understanding have been put in place to facilitate joint working and avoid duplication and overlap.

 

Possible future

Given that the PSOW Act is generally well regarded legislation with many facets which are not just good in theory but also working well in practice, the observer might well ask, why is a review desirable?  By the time any new legislation is likely to be drafted, the office will be ten years old.  New legislation has been introduced in the Republic of Ireland and elsewhere since 2005,[12]while new legislation, drawing on the Welsh experience but designed to further develop it, is being introduced in Northern Ireland.[13]

In addition, the Law Commission reviewed the legislation governing public services ombudsmen in England and Wales.[14]  It commented favourably on the existing PSOW Act but did make a number of recommendations for change which are referenced below.

The remainder of this paper sets out possible areas for change, whether emerging from the experience of the office, developments of best practice elsewhere, or the recommendations of the Law Commission.  It is not intended to be exhaustive.  The final part of the paper considers how the process of change might be advanced, especially in the context of the legislation being developed by the Assembly, rather than the Welsh Government.

 

Jurisdiction

Changes to the devolution settlement have led to new areas coming into jurisdiction over time.  Recent examples include the arrangements put in place in Wales to replace the Social Fund. In addition, some obvious gaps are being addressed, as in the case of the proposed extension to include self-funded social care and hospice care.[15] 

In general, where governments believe services need to be regulated, there is also access to independent redress.  On a UK level, there are many examples such as financial services being covered by the Financial Ombudsman Service or lawyers by the Legal Ombudsman.  In Wales, most devolved services which are regulated are covered, but there are some gaps including, for example, private healthcare. 

There are also major gaps in the field of education, and considering extensions there would make sense.  It is a big element of public service with very limited access to redress.  Further and higher education are within the remit of the Welsh Government, but redress is still provided on an England and Wales basis.  This is not the case in Scotland and Northern Ireland and it would be useful to consider whether the current arrangements remain the best for Wales.

Some areas of public services are covered by tribunals, and in many cases, that will still be the most appropriate way of providing access to redress.  However, as the network of tribunals has grown up in a relatively ad hoc way over many years, it may well be the case that some of their work could be more effectively dealt with by an ombudsman.

There is an anomaly in the existing legislation whereby individual GPs, rather than surgeries, are in jurisdiction.  This has the unfortunate effect of personalising complaints in this sector whereas elsewhere, it is the public service provider, rather than an individual, who is in jurisdiction.  This should be amended.

 

Access

The current legislation is generally helpful in providing access to the office.  Accessing the service is free of charge and the requirement for bodies in jurisdiction to tell people about their right to complain has ensured that people can access the office as they need to.  There is a requirement that all complaints should be in writing, but this is in part counteracted by a discretion for the Ombudsman to choose to accept complaints in other forms if appropriate.

However, in view of the changing nature of electronic communication, and the considerable equalities issues about potentially excluding people who cannot write, including, for example, people with learning disabilities, there is a case to be made for modernising this area of the legislation.  Access for people who cannot write should not be discretionary.  They should have the same access as any other service user in Wales.  This point was included in the Law Commission’s recommendations.[16]

 

Own initiative investigations

Virtually without exception, public services ombudsmen throughout Europe, and indeed, internationally, have the power to undertake investigations on their own initiative.  As Ombudsman in the Republic of Ireland I already have such a power and it is proposed that it should be introduced in Northern Ireland also. 

This is a power normally used sparingly to investigate where there is an obvious problem but no complaint has come forward or, more usually, to extend an investigation into a complaint to other bodies where it appears that the maladministration or service failure identified is likely to be systemic and affecting people other than the complainant.

It would be important to frame any changes in such a way as to ensure that the power would be used only where appropriate and cases could be referred to regulators or commissioners where this was a more suitable alternative.

 

Findings

The Law Commission considered the position in respect of Ombudsman findings, and recommendations.[17]  They concluded that the current position regarding recommendations to public bodies should remain i.e. they should not be binding.  (See below for commentary on recommendations to private bodies providing public services.)  However, they believed that the findings of an Ombudsman e.g. whether there had been maladministration or service failure, should be binding, as is currently the case in respect of the Local Government Ombudsman in England.  In practice, this means that bodies cannot decide to reject the findings and any challenge could only be through the courts.

 

Binding remedies

Where the bodies in jurisdiction are public bodies, the existing powers of recommendation work well and there is no evident need for change.  Thus far, no public service provider has refused to implement a recommendation.  However, where private bodies are in jurisdiction, as will be the case with social care providers, the democratic process cannot be engaged in the same way and compliance may be harder to secure.  Private sector ombudsman schemes normally have binding powers and it would be helpful to consider including this provision in respect of private providers only in the future.

 

Funding mechanisms

Private sector ombudsman schemes are normally funded by the bodies in their jurisdiction. This is usually underpinned by statute. The funding mechanism may be an annual levy, or based on case by case charging, or often on a combination of both.

This has the dual function of ensuring that the cost does not fall to the public purse while also engaging the “polluter pays” principle, giving providers an incentive to avoid error and resolve complaints as a means of not incurring the costs.  There is again a strong case for ensuring this is the case for any private provider in the office’s jurisdiction.   This hybrid funding model is already in place at the New South Wales Ombudsman’s office, for example.[18]

There might also be a case for introducing it in respect of public bodies to act as an incentive to improve complaint handling and to improve their success in getting things right first time

 

Complaint Handling regulation

The development of the model complaints policy to help to achieve consistency across public service providers is described above.  Take up was initially slow but it is now extensively used.   The policy was developed by a group chaired by the Ombudsman, and was issued by the Welsh Government.[19]  Adoption is voluntary, but strongly encouraged.

In Scotland, the Ombudsman is designated as the Complaints Design Authority and all public service providers are obliged to adopt a standard approach.  There may be a case for adopting such an approach in Wales.

In addition, power to take action to improve complaint handling, e.g. through training, issuing guidance, signposting complainants etc. would be highly desirable.

 

Protecting the title

There has in the past been a proliferation of schemes calling themselves ombudsmen, often without satisfying the key criteria of the concept such as independence from those in jurisdiction, objectivity and being free to the complainant.  In the recent legislation in the Republic of Ireland, anyone intending to use the title ombudsman must gain the approval of the Irish Ombudsman.[20]  There may well be a case for a similar provision in Wales.

 

Links with the courts

The Law Commission identified a number of areas where changes to legislation would be desirable.[21]  There is currently a statutory bar which prevents the PSOW from considering a complaint where the case could be considered by the courts.  However, there is discretion to set this requirement aside.  The Law Commission take the view that this bar should be set aside entirely, so that complainants can choose which is the more appropriate route for them.

In addition, there is currently no provision to allow the PSOW to consider a complaint when a judge determines that it would be the better means of resolution.  Changing the law to allow the Administrative Court to “stay” cases and to refer them to the Ombudsman would address this issue, but the Law Commission recommend that the discretion as to whether to investigate or not should remain with the Ombudsman as at present.

Finally, the Law Commission have suggested that the PSOW should be able to refer a case to the court for determination of a point of law.  They suggest that this will enable the PSOW to seek clarity on a legal point which might otherwise hinder or prevent an investigation as well as seeking clarity where there is doubt as to whether a matter is in jurisdiction.

 

Links with the Assembly

The Law Commission recommended that the PSOW should have access to a designated Assembly Committee, and, as noted above, this matter has already been addressed without the need for legislation.  They also recommended that there should be a formal power to lay cases before the Assembly, as is the case with other ombudsmen, where the subject matter is such as to justify formally bringing it to their attention.

 

The case for change

The above points set out a number of areas in which change is desirable or could be contemplated.  It is not exhaustive, and neither is there an equal case for each proposal.  However, there are sufficient areas where change and improvement is possible to make a case for a formal review of the legislation with a view to amendment or replacement in the years ahead.  Wales has been innovative and effective in developing an ombudsman service which is well regarded elsewhere.  It is important  though, that it should not be complacent, and should recognise that staying in the forefront requires regular review and enhancement, and ten years is an appropriate time to allow best practice elsewhere to develop which can influence future developments in Wales, as well as developing further Welsh innovation in light of its own experience.

If the case for change is accepted, the way forward which would best reflect the relationship between the PSOW and the Assembly would be a process of review and legislation driven by the Assembly itself, under the leadership of the Presiding Officer, to cement the independence of the office from Government.  This could draw on the example of the process undertaken in Northern Ireland where a review of the Ombudsman’s two offices was undertaken by Deloittes at the request of the Northern Ireland Assembly’s Committee for the Office of the First Minister and Deputy First Minister (the Committee). Following on from this review the Committee decided in the summer of 2010 to consider proposals for reforming the legislation governing the work of the Northern Ireland Ombudsman.[22]

The Committee decided to use the powers available to it under its Standing Orders to introduce such legislation and began by conducting a consultation exercise designed in part to take account of Ombudsman practices across the UK, the Republic of Ireland  and generally. The Northern Ireland Ombudsman, Dr Tom Frawley, has had the opportunity of commenting on the responses received to the consultation and to give evidence to the Committee.[23] The Bill followed the usual legislative path save that the scrutiny function was carried out by a different Committee. 

Although the standing orders are different, if it is agreed that there is merit in reviewing and developing new legislation for Wales, then a process would need to be put in place to enable this to be taken forward by an appropriate Committee, under the sponsorship of the Presiding Officer.

 

Conclusion

The PSOW is a well-established scheme with a broad jurisdiction and is compliant with international standards.  It has been innovative in its approach and has improved its performance over recent years.  It is an example where devolution has been used to develop an institution which is demonstrably superior to its predecessors, in the breadth of its remit, access, independence and powers.  Nonetheless, there is scope for improvement.

 

References

 

[1] “Administrative Redress: Public Bodies and the Citizen”, UK Law Commission, 2010, p3. http://lawcommission.justice.gov.uk/docs/lc322_Administrative_Redress_Public_Bodies_and_the_Citizen.pdf

[2]Ibid, p3.

[3] Kucsko-Stadlmayer, Gabriele (ed.): "European Ombusman-Institutions. A comparative legal analysis regarding the multifaceted realisation of an idea", Springer Wien, New York, 2008, p409-416.

[4]Ibid, p153-160.

[5] http://www.theioi.org/the-i-o-i/about-the-ioi

[6] Frahm M; “Australasia and Pacific Ombudsman Institutions, Mandates, Competences and Good Practice”, Springer, Berlin, 2013, p4.

[7] Parliamentary Commissioner Act 1967

[8]http://www.ni-ombudsman.org.uk/About-Us.aspxThe office was established by the Parliamentary Commissioner Act (Northern Ireland) 1969.

[9] Northern Ireland Public Services Ombudsperson Bill. See http://www.niassembly.gov.uk/assembly-business/committees/office-of-the-first-minister-and-deputy-first-minister/legislation/northern-ireland-public-services-ombudsman-bill/

[10] http://www.ombudsmanassociation.org/docs/BIOA-Rules-New-May2011-Schedule-1.pdf

[11] https://www.ombudsman.gov.ie/en/News/Speeches-Articles/2014/Fairness-and-Transparency.html

[12]Ombudsman (Amendment) Act 2012.

[13] Northern Ireland Public Services Ombudsperson Bill

[14] Public Services Ombudsmen (2010) Law Commission Consultation Paper No 196 - http://lawcommission.justice.gov.uk/docs/lc329_ombudsmen.pdf

[15] Schedule 179 and Schedule 3, Social Services and Well-being (Wales) Act 2014.

[16] Note 14 above.

[17]Ibid.

[18] Note 6 above.

[19] Complaints Wales Group - http://wales.gov.uk/topics/improvingservices/publicationsevents/publications/public-service-complaints-policy/?lang=en

[20] Note 12 above, Article 15.

[21] Note 14 above.

[22] “Proposals to Update Legislation to Reform Office of the Northern Ireland Ombudsman”, Northern Ireland Assembly’s Committee for the Office of the First Minister and deputy First Minister, 2010 - http://archive.niassembly.gov.uk/centre/2007mandate/Committee-consultation-on-NI-Ombudsman.pdf

[23] Report on the Committee’s Proposals for a Northern Ireland Public Services Ombudsman Bill Volume One - http://www.niassembly.gov.uk/Documents/ofmdfm/reports/Public-Services-Ombudsman-Bill-Vol1.pdf