6th February 2022
Did you know that the United Kingdom had an ‘Ombudsman’?
And if you did know, did you know what this Ombudsman can and cannot do?
I have been looking into this strange office for a while now, at the invitation of campaigners.
And the more I look at this curious office, the more confused I become.
This is because it sits very oddly within our domestic legal and administrative system – and is, in effect, a 1960s transplant from another constitutional regime.
The system is almost guaranteed to not fully satisfy anyone who uses it – and, indeed, there seems to be a number of people who are very unhappy with it.
This post is an introduction to the legal basis of the Ombudsman system – and I intend to further posts look at particular problems.
This is because it offers a fascinating case practical study of transparency and accountability (and the lack thereof) in law and policy.
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The notion of an Ombudsman comes from Sweden, and it was a popular and fashionable notion for administrative reformers after the second world war.
The idea was that the Ombudsman would help promote good government by investigating and thereby checking ‘maladministration’ – which is itself a problematic concept from a lawyer’s perspective.
(Is maladministration an unlawful ultra vires act? Or are there acts that are lawful but also maladministration? Who knows.)
By the 1960s – when administrative law in England and Wales was still underdeveloped – having an Ombudsman seemed like an idea that had come.
And so we had one – and then a number.
The primary Ombudsman in the United Kingdom, is the Parliamentary Commissioner for Administration.
This office was established by a 1967 Act of Parliament.
The remit of the Ombudsman is that it can, on referral by a Member of Parliament, “investigate…[an] action taken in the exercise of administrative functions…where…a member of the public…claims to have sustained injustice in consequence of maladministration”.
In some ways, it is a powerful office.
Very powerful.
The Ombudsman can only dismissed by an address of both houses of parliament.
The Ombudsman can require ministers and government departments to provide information and documents – even ‘secret’ information and documents.
It is even a criminal offence to obstruct the Ombudsman.
And the Ombudsman can, after an investigation, place a critical report before parliament that has full legal privilege.
With these legal superpowers, the Ombudsman would be a legal superhero equivalent of any other something-man or -woman.
Such a figure, given these powers, could be expected to be central to discussions about law and policy in central government.
But.
To go back to the top of the post: did you even know that the United Kingdom had an Ombudsman?
Have you ever read an Ombudsman report – or even visited its website?
And here there is a paradox – if not a contradiction.
For, at a time where there seems more and more maladministration, the Ombudsman has almost no public profile.
On the assumption that there is maladministration in central government, and given the legal super-powers of the Ombudsman, why is the Ombudsman so little-known?
And is there a problem with the Ombudsman system, as critical campaigners aver?
Let’s find out in future posts – and your informed comments are welcome below.
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I come here from NZ where the Ombudsman accepts complaints direct from the public. The result is that the number of administrative law cases is quite small. Of course his powers to examine a government decision are wider than under Judicial Review but his powers are less. He makes recommendations which are not binding but are usually followed. The office is highly respected. Seems to me a very valuable service. But as usual the UK remains in the dark ages.
I remember Bernard Braden, in his 1960s show ” On the Braden Beat” talking about the newly introduced
ombudsman but I’m not aware of any mention since.
Organisations, such as Canals and Rivers Trust have their own Ombudsman but they seem to have no actual powers.
I had no idea that we’ve had an ombudsman for so many years, and now I know who he is: Rob Behrens CBE. His duties seem confined to Parliament and the NHS and I couldn’t find an ombudsman for the Home Office in the list of Ombudsmen; surely there is one?
I look forward to learning more about this mysterious and little -known office.
There are all sorts of Ombudsmen, Motor Ombudsman, Financial Services Ombudsman, Local Authority Ombudsman. A good list can be obtained from Google. You will be amazed how many of these quango’s there are
On a brief, I am sure briefer than yours, review, the devil’s all appear to be in s5
Reference has to be made by member of public to MP who may then refer and but only after reobtaining permission of the member of the public s5(1).
It gets worse in s5(2). Where anything for which the member of the public may have a right of appeal for, or a remedy in law for, is excluded. Essentially gutting the Ombudsmen of any relevant power whatsoever.
The member of the public must also have suffered a loss. So for example an illegal party in Downing Street would not be covered.
There are then many more further caveats; the position appears entirely toothless.
One of your phrases springs to mind: “An ornament not an instrument”.
Could one claim prejudice by not being on the guest list?
I can only speak on Irish situation. Similar Ombudsman but with direct citizen access. Very conservative and unwilling to challenge public bodies too much. Does not respect natural procedure in terms that communications/submissions with public bodies not disclosed to citizen. Very hard to successful challenge by way Judicial Review.
The issues the PHSO mostly deals with are avoidable harm and death caused in NHS Trust hospitals and no MP is required to refer for that. The Trust where my mother died after elective hernia surgery supposedly carried out an 18 month internal ‘investigation’ but it brought no facts to light. The NHS Trust then supplied the 2011 PHSO investigation with a set of my mother’s medical records that had over 100 crucial records missing. We pointed this out to the PHSO at the draft stage of the report but they ignored us and carried on to issue a finished report which fully upheld our complaint but gave a completely false and misleading account of our mother’s death. An Ombudsman’s report is considered ‘incontrovertible’ i.e. written in stone, and so it prevents further independent investigation and ‘puts a lid’ on the case, often with the facts completely un-investigated. After 7 years of trying to get the report into my mother’s death reviewed and quashed, in 2018, the PHSO Ombudsman, Rob Behrens, took the unprecedented step of ‘personally quashing’ the 2012 investigation report and its recommendations, saying it was ‘null and void’. However, the legal standing of this decision is said by PACAC and by the PHSO to be uncertain. We blame the PHSO Ombudsman’s office for the twelve years it took us to get a second inquest to look into events of our mother’s death. Even at the second inquest, we were still fighting off the Ombudsman’s report because it was emmeshed in other reports and being quoted from by the NHS Trust to the Coroner The PHSO Ombudsman is a pernicious organisation, and those who have spend the most time in its clutches consider that its purpose seems to be to prevent investigation of avoidable NHS deaths and that, in doing so, it causes immense trauma to bereaved claimants who turn to it for help.
I had occasion to engage the PHSO via (of course) my MP. I wanted the Charity Commission to take proper regulatory action, which for 10 years it has declined to do. The PHSO basically did nothing, and when I complained about its lack of action, it even failed to follow its own complaints procedure. At this point my MP was equally useless. Unless the issue aligned with his career and party objectives, he was not interested.
As a lay person, yes, I was aware of the Parliamentary Ombudsman, but by its full title, because of some serious NHS complaints being ultimately able to go to the PHSO. But you’re right, I’m aware of precious little coming out of it.
I was aware of the decision that the DWP had treated women unfairly when it changed the pension age with unfair implications for some women. But I’m not sure I was aware that that finding had been made by the PHSO – so maybe there is indeed a problem with transparency and awareness.
For example, the Ombudsman is not referenced in comms from government departments in the way that financial services firms seem to be required to inform people of the existence of the Financial Services Compensation Scheme and (I think!) also the Financial Ombudsman Service – they certainly have to inform them of it if someone makes a complaint.
Perhaps there is also a problem with the term ‘maladministration’ in that it sounds like it refers to implementation of policy, rather than to policy itself, and sometimes it may be the policy itself that seems problematic, so people may not know that an Ombudsman could help them. I don’t know whether the PHSO has been involved in the Windrush deportations and maltreatment scandal, but I hope that it has.
However, since the Home Office policy at the time did indeed seem to be that they wanted to make it difficult for many immigrants to remain in the UK, it’s hard to know whether the scandalous behaviour was ‘maladministration’, as some people did not have the expected documents to evidence their right to remain. Fortunately the government has subsequently changed its tune, and recognised how unreasonable its requirements were. But at the time, it rather seemed that the Home Office was perhaps properly administering the government’s actual policy, which seemed to be that they didn’t want them to remain in the UK!
Very interesting – Local Government also has an Ombudsman, there is also a financial Ombudsman, but as you say, when was the last time you heard of any of them reporting on anything? The Parliamentary Ombudsman would seem the perfect place for a variety of complainants to go e.g. The Good Law Project and others who suggest that maladministration has occurred around procurement issues – and yet – they prefer recourse to the courts. I wonder why?
[Note this has been rendered anonymous by DAG at the request of the long-time commenter]
Some years ago I made a complaint against an NHS consultant. I’m leery of giving anything but the most vague of descriptions, but it centred on a conflict of interest. The local health board’s view was that any conflict of interest was none of their business. I made a complaint to the Ombudsman, a painstaking process. They responded by investigating my medication (which was routine for the area of medicine concerned) and asking the consultant what he thought. His reply was that the conflict of interest was not important, and he flatly denied saying something I’d claimed he said. I was sent his reply and told that in the Ombudsman’s view that settled the matter. I was denied treatment from that specialism for 18 months and was told explicitly (off the record, of course) that this was a punishment. Only the dogged persistence of my GP, who thankfully believed me, restored my access to treatment. The NHS does not respond well to formal complaints, and the Ombudsman made things substantially worse.
Thanks for this informative post i am looking foward to your follow ups. Here is the german wiki page about that topic, sorry that it is in german but the difference to the english wiki page is significant so maybe just translate it wtih google.
https://de.wikipedia.org/wiki/Ombudsmann
I knew Ombudsmen exist but haven’t heard about them for a while. I remember 20-30 years ago they/he would be in the news. Perhaps the proliferation of watchdogs, whistleblowers and the growth in Select Committee activity has overshadowed them?
Whistleblowers do fill the (resource?) gap, however, they would not be increasing, nor needed if ombudsmen, watchdogs, regulators etc did the honest jobs they are paid to do from public taxpayer money.
I remember the Ombudsman system being introduced, I’ve even used it (the Financial Ombudsman) but I’d never heard of the maladministration Ombudsman. Sounds like just the person we need. I look forward to reading more about them and their super powers.
Very interesting. I well remember the time when the Ombudsman’s office was highly respected and their critical reports rightly feared by both ministers and civil servants. It will be interesting to learn how and why this power drained away.
I did know that there’s a Local Government Ombudsman, because they recovered hundreds of pounds for me once.
This goes back to the introduction of the infamous Poll Tax. The local council’s computer systems weren’t up to it, and it was well over two years before I received my first bill, for thousands of pounds. The problem was I lived in a large shared house and most of the others had moved on and vanished in that period. The lease was in my name so the whole bill fell on me. The local magistrates were powerless to “waive collection of public funds” and the council attached my wages (without even informing me).
The ombudsman eventually recovered a significant chunk of that for me. Without them I would have had no recourse and the council would not have been held to account.
The Ombudsman investigates very few cases, doesn’t look for patterns and has failed to identify any major scandals to date. It’s one thing to have powers, another thing to use them.
The Ombudsman has own website and as PHSO (Publi Health) does indeed find patterns. Also found maladministration in way occupational pensions were described, leading to significant reforms at the cost of billions, secured compensation for British citizens in internment camps, looked into Equitable Life. The point is the remedies are political not legal
And tracing cause and effect is not straightforward. If the Government does not accept recommendations the Ombudsman can make a report to Parliament which is likely to be taken up by the Public Administration and Constitutional Affairs Committer.
“Ombudsman” definition: individual selected from the establishment, adequately paid from public funds, but with no public oversight, expressly created to defect any potential criticism, impossible to engage with, whose report if made available will be several years out of time, guaranteed to have opaque and constrained references, a remit deliberately slanted to support the establishment and whose judgements, such as they are, cannot be questioned.
spot on!!
I was working in the Press Office for the Department for Trade and Industry when Geoffrey Howe was appointed minister of state at the Department of Trade and Industry, but the big claim was that he was to be ‘The’ Ombudsman, a role that was new and difficult to spin to the Press at the time and mainly related to consumer concerns. Interestingly, a quick search on the internet hasn’t turned anything up about this, but at the time it was considered a Big Deal.
So, yes, these roles do seem to be difficult to explain to the public, and their profile seems even harder to raise.
Thank you David. Judging by the comments you have already received, you have now ‘hit the nerve’. I would just point out that, on 30th April 2021, Michael Gove, then Cabinet Office Minister, wrote to William Wragg, Chair of the Public Administration and Constitutional Affairs Committee (PACAC). He sought the views of the committee regarding ‘extending’ Mr. Behrens tenure of office as Ombudsman for a further 2 years. Mr. Behrens was appointed for a period of 5 years in 2017 and his term of office is due to end on 31st March 2022. On 14th December 2021, PACAC wrote to the Cabinet Office stating they could see no reason for not extending the tenure.
Section 1 of the Parliamentary Commissioners Act 1967 says other wise. The Ombudsman cannot be re-appointed as Ombudsman at the end of his term. He can, by virtue of Section 3 be appointed as Acting Ombudsman until a successor is found or for a maximum of 1 further year. I pointed all this out to PACAC in my written evidence. Although PACAC has yet to issue a report on its annual scrutiny of the Ombudsman, this was not addressed when taking oral evidence from the Ombudsman and his Chief Executive on 14th December
Mr. Gove told PACAC, in an annex to his letter, he took legal advice. That advice has never been published. The current Cabinet Office Minister, Steve Barclay, is responsible for deciding what to do. I wrote to Mr. Barclay on 15th December and again in January and February. Curiously and despite stating they aimed to respond within 3 working days, the Cabinet Office have yet to respond and I suspect an attempt to ‘run down the clock’. I hope I am wrong. Section 1 of the Act states Mr. Behrens retention in post after 31st March will be unlawful (unless using the temporary provision of Section 3).
This then raises the following question:
What will be the effect of any report issued by the Ombudsman after 31st March. Will such report be ‘ultra vires’ and have no legal standing on which NHS Trusts, Government Departments or the the public can rely.
The Cabinet Office needs to be place under pressure to explain why, on the face of it, they want to break the law. Not a good look for Mr. Barclay in his new role for the PM I think!
Alternatively, perhaps a complaint to the Ombudsman might yield the answer, but on his record of performance, don’t hold your breath.
I look forward to your follow ups.
I was aware of the ombudsman and of other complaint mechanisms in government. Few if any of them seem to work satisfactorily. They are understaffed and some I have engaged with have little experience of proper methods of investigation. I currently have a complaint with the parliamentary ombudsman and have been told that my complaint will be assigned to a case worker in 49 weeks!
Good article David.
I’ve known for some time and this not only applies to UK Ombudsmen but other countries too.
In Switzerland for example, Ombudsmen are planted in these positions to gather knowledge, they then pass on to the very perpetrators one is complaining about. Swiss Journalists are not much better.
Some NGO’s perform similar tasks to Ombudsmen. Effectively, they are installed deflect attention and give public the illusion they have recourse, meanwhile, public don’t and that is evidenced in multiple contradictions and hypocrisy.
The same applies to the so called regulators and some Whistleblower law firms that are too used to scoop information to strengthen barriers and loopholes can be tightened while making public believe there is law and order. Clearly, there is one law for them and another for public and public have been deceived. Worst of all, we pay for this negative service via taxes. Problem is how to inform public when the press are part of it too. It’s all about profit, business, revenues, money and greed.
I quite liked the concept of ombudsman.
Until I read some of the comments.
The apparently poor practice may mean that the theory isn’t all that good after all.
But I wouldn’t give up that easily.
The term ‘ombudsman’ in its original meaning has a connotation of agency or representation – someone to act on your behalf, for example. Why would this be useful especially in dealing with big organisations ?
Well, how many times have we read frankly surreal descriptions of how badly people have been treated ? When the evasion of responsibility, shoving people back and forth between parts of the organisation, obfuscation, cover ups or outright refusal to correct a wrong lead people to despair ?
When the main question we have is : what is really going on here ?
Wouldn’t it be nice if we could ask someone – our agent or representative – to investigate for us ?
I suggest that the main point of the ombudsman would be their power of investigation. Getting to the bottom of things. Without the facts, there can be no remedy.
Since the public organisations subject to investigation are complex, it is reasonable for the public to fund the cost of redressing the balance in favour of the individual.
Of course, what can or cannot happen then is important. Who will take notice ? Will the findings help in seeking arbitration ? Or compensation ? Can one use the findings in a court ? The answers to these questions will have a bearing on the actual power to carry out an investigation in the first place.
But in theory, one could construct a system to make it possible.
I recognise the idealism in this view.
Especially when the preamble to the UK parliamentary ombudsman complaint form starts off with eight reasons why one might not be able to make a complaint to them, and then contains a form 12 pages long. You already know which way the wind is blowing…
(This is an interesting contrast with the 2 page form for the EU ombudsman.)
As a District Manager’s Jobcentre Plus complaints handler, for want of a better description, I had some dealings with the Parliamentary and Health Service Ombudsman.
Apart from the mild and not so mild panic caused in some quarters by the Parliamentary Ombudsman’s intervention in a case that would already have been gone into thoroughly internally, individuals having to have exhausted all the avenues open to them before the Ombudsman would take their case via their Member of Parliament (with whom we had probably already dealt, often at some length about their constituent’s issue), we just outlined our side of the matter with a detailed timeline and narrative and details of any apology and/or redress.
I do not recall my office losing a case on appeal, although we may have been given some pointers about how matters might be improved.
I do remember one or two very aggrieved complainants, unhappy with the Parliamentary Ombudsman’s decision and detailed response to their complaint wanting to take the matter further.
The Parliamentary Ombudsman was in my time very thorough and provided detailed responses to both parties with some complainants getting short shrift but in great detail.
The Parliamentary Ombudsman being not unknown for taking the view that, yes, a mistake was made. You complained about the poor service and Jobcentre Plus accepted your complaint. They investigated, took responsibility for any failings on their part, apologised, corrected any error and offered you appropriate redress and/or compensation.
Case closed.
In some cases, the Parliamentary Ombudsman particularly commented on the behaviour of the complainant in forthright terms, particularly if it was felt the complainant had behaved unreasonably, including helping to create the underlying problem and/or refusing appropriate remedies.
It is probably worthwhile my pointing out that I am talking more about complaints concerning the general quality and degree of customer service, including jobsearch support and provision than about entitlement to benefit.
Issues about benefit awards and so forth being handled by HM Courts and Tribunals Service, an executive agency, sponsored by the Ministry of Justice, through the two tier Social Security and Child Support Tribunal process.
One may, however, get the benefit right (eventually), but fail on the quality of service in the process. There are two recognised types of monetary error, claimant and official which get unhelpfully lumped in with the annual calculation of fraud.
The Parliamentary Ombudsman might, therefore, be asked, for example, to look at issues around the processing of a benefit claim and around the timeousness of payment.
As I recall, one or two of our vexatious complainants got a telling off in the Parliamentary Ombudsman’s response to their case.
Appealing to the Parliamentary Ombudsman might have been likened to appealing against an examination mark, there being no guarantee that after an appeal your score would not be revised downwards.
In order to expedite a complaint, we would normally focus on a speedy resolution, in the process setting aside, sometimes to the great annoyance of staff on the frontline, any contribution an individual may have made to the issue of their complaint, including their attitude and previous patterns of behaviour.
Once the matter was with the Parliamentary Ombudsman such restraint was no longer necessary, our relationship with the complainant having broken down and it strengthened our case to provide the background surrounding how we had handled a complaint.
For example, we might have records of complaints made by staff about the complainant and evidence that the complaint being enquired into was not an isolated occurrence, but part of a pattern that was beginning to arouse suspicion about whether the individual was complying fully with the requirements for receiving unemployment benefit.
Matters we had chosen to set aside in the context of the complaint under investigation.
The Parliamentary Ombudsman might then say that we had gone above and beyond what might reasonably be required of us on the occasion in question.
I suspect that line of argument may contribute to some of the dissatisfaction with the role of the Parliamentary Ombudsman in that the Parliamentary Ombudsman acts more as an honest broker than a judge and rarely, if ever in my experience as a prosecutor.
Most of the PHSO Ombudsman’s caseload in this day and age is NHS medical – avoidable injury and deaths. I don’t think there’s any evidence to to suggest that the complainants to PHSO Ombudsman are vexatious. If the deceased is too young or too old to attract a lawyer or the complainant doesn’t want to go to law (very often the case), the Ombudsman is the only place the complainant can go to try to get the truth out of the NHS trust. And the PHSO Ombudsman causes a great deal of serious trauma to bereaved complainants in the process – which I don’t think Rob Behrens would deny, if you asked him.
Many, but nowhere near all of my District’s cases, I stress Jobcentre Plus clients were vexatious.
They had exhausted all of our Department’s informal and formal complaint processes, quite often alongside running through support from their Member of Parliament’s constituency office staff and that of other agencies.
Incidentally, a request from an MP’s constituency worker is treated as being from the MP and expedited at all points, arguably being on occasion given a higher priority than it deserved. Such expedition is accorded to any enquiry by any elected politician from Parish Councillor upwards on behalf of a constituent on the grounds of implied consent. And this being Great Britain, one would extend such a courtesy to a Member of the House of Lords.
I am not as I am sure you will understand in a position to cite, even in a highly anonymised manner individual cases to illustrate my point.
I would say that there was a degree of tension at one point within the Department for Work and Pensions about those clients making vexatious complaints and in the process diverting resources from addressing other more serious cases.
Senior management got nervous about a process that saw written responses to a complainant on the same issue that as far as were once concerned was settled become terse to the point of becoming just a letter of acknowledgement.
One advantage of such a complainant being dealt with by the Parliamentary Ombudsman was that once the Parliamentary Ombudsman had responded in full to the complainant (and any necessary follow up action taken) then that response might be used both internally and externally as grounds to go no further in the matter.
The complainant would then have to find a new issue to raise with us.
One would probably get around the Peer of the Realm not having a constituency by communicating directly with the individual on whose behalf they had contacted us and letting the Noble Lord or Lady know that we had done so.
The process followed when handling casework from a Member of Parliament who had just lost their seat.
One MP who shall remain nameless had to be tactfully told that they were just AN Other member of the public when they started to carry on with new casework when they were no longer an MP.
A seat transferring between members of the same party posed no particular problems.
A seat moving between parties meant a fresh start.
I did a bit of digging on their website:
Their “business plan” is inspirational
https://www.ombudsman.org.uk/sites/default/files/PHSO_business_plan_2021-22.pdf
The PDF document properties show it was prepared by Brad Denton. I was half expecting him to be a $300 p/h consultant but in fact he does work there. http://www.linkedin.com/in/brad-denton-9935019a
The budget this year is GBP31.7 million.
I don’t know how much of that goes towards their pension scheme which is still Defined Benefit plus 32.5 days holiday, plus statutory https://www.ombudsman.org.uk/about-us/jobs-and-careers/why-join-us
They have a podcast
https://www.ombudsman.org.uk/sites/default/files/Radio_Ombuds_Rafael_Ribo_Transcript_June_2020.pdf
(someone called Carol does the transcripts)
There is a gripping interview with Peter Tyndall, President of the International Ombudsman Institute. …
Dare I say it, the Occasional Papers series https://www.theioi.org/publications/occasional-papers-1979-2008
is not quite as compelling as their newsletter
https://www.theioi.org/ioi-news/ioi-newsletter
If only I had time I would write suggesting that items like this
“12th AOA conference scheduled for December 2011
The 12th regional Conference of the Asian Ombudsman Association (AOA) will be held in Japan from 5th to 8th December 2011.”
should include a link to the website.
I deeply regret that I never made it to one of these conferences, and have added attending to my bucket list.
A journalist from a well known newspaper ought to go.