Ombudsmen (L17/18) Flashcards
What did the Whyatt Report 1961 achieve?
Recommended the adoption of an ombudsman in the UK.
Designed as an additional remedy.
How were the ombudsman fit into the UK system?
Institution foreign to our constitution.
New Zealand (1962) showed it could be adapted to Westminster model.
Styled “commissioner” rather than “ombudsman”.
Sold as “cutting edge” for MPs (concern to maintain Parliamentary grievance handling function).
Acknowledgment today that ombudsman is an important part of constitution, but debate about where exactly sits.
What is an ombusdman?
An ombudsman is:
An independent official with responsibility for investigating complaints of ‘injustice’ caused by ‘maladministration’ and making recommendations to resolve them;
A hybrid between political and legal forms of accountability.
Responsible for finding all the facts, etc.
What is the role and function of an ombudsman?
Non-curial (non-court-based) means of securing administrative justice.
Function.
Resolve grievances, secure redress.
Improve decision-making – prevent future instances of similar maladministration, address systemic problems.
In Scotland who can complaints about maladministration by government agencies be made to?
Parliamentary Ombudsman – Parliamentary Commissioner Act 1967.
Scottish Public Services Ombudsman – Scottish Public Services Ombudsman Act 2002.
How do the SPSO and PO differ in their accessibility to public complaints?
‘MP’ filter for complaints to PO (s6(3) PCA 1967).
Direct access for complaints to SPSO (s9 SPSOA 2002).
What matters can the PO and SPSO investigate?
‘Injustice in consequence of maladministration’ (s5, PCA 67).
Injustice or hardship as a result of maladministration or service failure (s5 SPSOA 2002).
How do you determine if the ombudsman CAN investigate?
Was the complaint duly made?
Does it relate to an injustice sustained by maladministration?
Is the body within the jurisdiction of the ombudsman?
Is it an excluded matter?
Both Acts have a section of exclusions.
- E.g. complaints about internal management of schools.
How do you determine if the ombudsman WILL investigate?
If other remedies available, is it unreasonable to expect the complainant to resort to them? (PCA 1967, s5(2); SPSO 2002, s710).
What are the last steps to the ombudsman process?
Did maladministration occur?
Did maladministration cause injustice?
Has the public body accepted the findings?
If not, Ombudsman may issue a special report.
Also, may seek JR of government’s decision.
How has the ombudsman process progressed?
Traditional process: investigate & report.
‘Modern purpose’: resolve by any means necessary; M Seneviratne, Ombudsmen: Public Services and Administrative Justice (London, 2002).
Practice on the ground is changing and unclear:
Unclear and inconsistent terminology.
Unclear criteria for deciding on investigation / resolution.
Unclear description of processes.
Inconsistent publication practices.
See V Bondy, M Doyle, C Hirst, The Use of Informal Resolution by Ombudsmen, (London, 2014).
What does ‘maladministration causing injustice’ actually mean?
Not defined in legislation.
But – cannot question the merits of a decision taken without maladministration (PCS 1967, s12(3), SPSOA 2002, s7(1)).
Maladministration concerned with process, not merits.
Goes beyond strict legality c.f. R (Association of British Civilian Internees: Far Eastern Region) v Secretary of State for Defence (2003) & PHSO Debt of Honour case.
- Was there a legitimate expectation as to how to government would compensate those interned in the far east during the war?
- Court found no legitimate expectation so no legal wrong.
- Ombudsman found there was maladministration due to poor communication leading to confusion then injustice.
What examples does the Crossman catalogue give of maladministration?
Things which could be maladministration.
“Bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.” (Richard Crossman MP, 10 October 1996, Hansard HC Deb, vol 734, col, 51).
What are the Principles of Good Administration, Parliamentary and Health Services Ombudsman, 2009?
- Getting it right.
- Being customer focused.
- Being open and accountable.
- Acting fairly and proportionately.
- Putting things right.
- Seeking continuous improvement.
What does ‘injustice’ cover?
In the Ombudsman context, ‘injustice’ covers
‘not merely injury redressible in a court of law, but also the “sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss.’
This means that the “defence familiar in legal proceedings that because the outcome would have been the same in any event there has been no redressible wrong, does not run in an investigation by the [Ombudsman].” (Sedley J. R v Parliamentary Commissioner for Administration, ex p Balchin (No.1) [1997] JPL 917, 926).
What are the requirements for the investigation being carried out?
PCA 1967, s7; SPSOA 2002, s12.
Private.
Public authority to have opportunity to comment.
Otherwise, Ombudsman determines procedure.
What if the public authority obstructs the investigation?
PCA 1967, s9; SPSOA 2002, s14.
If without lawful excuse public authority obstructs investigation, ombudsman can refer matter to court, and the court may inquire into the matter – failing to cooperate is the equivalent of contempt of court.
What are the political process requirements for the ombudsman?
Individual reports (PCA 1967, s10; SPSOA 2002, s15).
Annual reports laid before Parliament (PCA 1967, s10; SPSOA 2002, ‘special reports’, s16).
- E.g. Equitable Life (2007-2008).
What is the legal effect of the ombudsman?
Reports not legally binding (see discussion in R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin)).
Distinction between the findings of an ombudsman (carries legal weight) and the recommendations of an ombudsman (no legal weight).
Unlawful to reject the findings, but not unlawful not to follow the recommendations.
In this case, dismissed the findings. Court said to dismiss the findings, cogent reasons must be provided, if not, the decision to reject findings is open to judicial review.
What is the PO’s relationship with judicial review?
Should normally decline jurisdiction if complainant has ‘suitable’ alternative remedy.
But: overlap between maladministration and illegality;
Ombudsman’s decisions may be subject to judicial review (R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621).
Positive or negative impact? See e.g, R (Bradley) v Department for Work and Pensions [2007] EWHC 242 (Admin).
Judicialisation would be largely negative
Can take away from the whole purpose of ombudsmen (non-curial, being a hybrid process, cooperating with public bodies).
The ombudsman have a contested constitutional role. What does it mean to say they are a parliamentary adjunct?
There to support parliamentarians in their grievance handling function.
Also ensuring the government is held to account. Informing parliament of what is going wrong.
The ombudsman have a contested constitutional role. What does it mean to say they are a justice system “add on”?
Dealing with lots of small complaints which could be seen as some kind of small claims court.
In practice, it has not always been the case that the ombudsmen and parliament have had a strong relationship. Not always shown that the ombudsman’s work has supported the role of parliament.
The ombudsman have a contested constitutional role. What does it mean to say they are a managerial mechanism of executive quality control?
View that the ombudsman has become a means of self-control. Much less an independent aid to parliamentarians, or an add-on to the justice system, and is more to get the ombudsmen to serve the managerial needs of parliament.
A vehicle for learning in government.
The ombudsman have a contested constitutional role. What does it mean to say they are an “integrity branch” of government?
Idea taken from Australia.
Various independent organisations which are designed to scrutinise and hold the government to account.
