The Role of a Public Service Ombudsman
Overview
This Briefing Paper outlines the history of Ombudsmen and the current Ombudsman roles in Jersey and other jurisdictions.
What is an ombudsman?
The Ombudsman Association defines an Ombudsman as "an independent service that investigates and resolves complaints." The purpose of such a scheme is to make impartial decisions based on what is fair. Ombudsman schemes are free to use – and in addition to potentially providing redress for individuals, they aim to identify systemic issues.
There are 49 Ombudsmen registered with The Ombudsman Association[1]. These include Ombudsmen registered in the United Kingdom, Northern Ireland, the Channel Islands, and other jurisdictions; such as the Gibraltar Public Services Ombudsman and the Office of the Ombudsman of Bermuda.
Whatever jurisdiction they are in, the purpose of an Ombudsman remains to protect the rights of the public and to manage their grievances against public officials or other agencies effectively. Each country has their own framework with regards to the institution of Ombudsman. Some countries appoint Ombudsman that have more powers and autonomy than others who only have the power to investigate. Each Ombudsman Service has its own guidelines and policies but essentially the work of the Ombudsman is underpinned by a set of ethical and moral principles.[2]
There are many different types of Ombudsmen overseeing various areas of private and public services. Amongst other areas these include Financial Services, Public Services, Utility Services, and Legal Services.
Ombudsman Schemes
Rules for Ombudsman schemes are set out in legislation and / or other governance documents. These rules identify the jurisdiction and powers held by such Ombudsmen. Those Ombudsman schemes which have signed up to the Ombudsman Association are required to include the principles of "Independence, Fairness, Effectiveness, Openness & Transparency and Accountability".
They also have to publish their service standards and provide reports to demonstrate the standards are upheld.
Accountability is a key component of an Ombudsman Scheme according to the Ombudsman Association. The majority of the decisions (99%)[3] are accepted and for those that are not there is a further level of redress, as decisions can be referred to Parliament where the Ombudsman's report would be presented.
The decisions of private Ombudsman schemes, such as those reviewing utility companies or private law firms, are legally binding if the decision is accepted by the complainant. This is not necessarily the case for Public Services Ombudsman schemes.
History of the Ombudsman
The concept of the Ombudsman was brought into common use by King Charles XII of Sweden in 1713 when he instituted the Hogste Ombudsman. This institution was put in place to manage the Kingdom whilst he lived abroad for 13 years. By 1719, the Supreme Ombudsman had the title of Chancellor for Justice (Justitiekanslern). A Commissioner was appointed in 1766, also known as a Parliamentary Ombudsman, who had responsibility for bureaucracy and Justice. This Ombudsman was voted in by the electorate in Sweden. The legislation ensured that anyone could readily access the Ombudsman to pursue their claim in respect of any public official. This was enshrined in the Swedish constitution in 1809.[4]
It was almost 150 years before the concept of Ombudsman expanded internationally, to Denmark in 1955. The Danish Ombudsman wrote about the concept in English, which caused an interest in the subject in the UK. New Zealand's development of an Ombudsman in 1962 instigated significant global interest into the model of Ombudsman.
Timeline for the Ombudsman's Schemes in the United Kingdom and Ireland
A local example of the development of an Ombudsman scheme is the setting up of the Channel Islands Financial Ombudsman Scheme.
Jersey
"2009: Jersey's States Assembly gave approval for drafting a financial services ombudsman law.
2011: The Jersey Department consulted on the financial services ombudsman scheme and Jersey law drafting began.
2012: The Jersey Department and industry working groups considered approaches for funding the ombudsman scheme and estimates of complaints volumes.
2014: The Financial Services Ombudsman (Jersey) Law 2014 was approved by Jersey's States Assembly; approved by the Privy Council and registered in the Royal Court.
Similarly, The Financial Services Ombudsman (Bailiwick of Guernsey) Law 2014 was registered in Guernsey's Royal Court and the legislation came into full force on 16 November 2015.
Public Services Ombudsmen
In terms of complaints about public services, there are numerous examples of Public Services Ombudsmen which are well established in the UK and internationally.
A prime example is the Parliamentary and Health Service Ombudsman (the "PHSO"). This role combines the two statutory roles of Parliamentary Commissioner for Administration and the Health Service Commissioner for England, whose powers are set out in the Parliamentary Commissioner Act 1967 and the Health Service Commissioners Act 1993 respectively.[6] The PHSO's role is to investigate complaints that individuals have been treated unfairly or have received poor service from government departments and other public organisations, or the NHS in England. This Ombudsman scheme is supported by long established legislation.
A report prepared by the House of Commons Committee: Parliamentary and Health Service Ombudsman Scrutiny 2020–21 - Public Administration and Constitutional Affairs Committee provided recommendations to the government to improve its services. This review found that even a well-established Ombudsman's Scheme requires modernisation of legislation and more refined Key Performance Indicators and questions in their feedback questionnaires from complainants.
Rt Hon Michael Gove MP confirmed "there was no active work to pursue legislation to merge the PHSO and the Local Government and Social Care Ombudsman, citing pressures on the Government and parliamentary timetable".[7] This will therefore not take place in the spending review between 2021/2022 and 2023/2024. The review recommended that until the legislation could be put into place, the PHSO find ways to work more collaboratively with local government and the Social Care Ombudsman.
This was recommended as a priority. In terms of addressing complaints, the Covid-19 Pandemic impacted upon the number of complaints that were processed and completed.
In addition to the role of scrutiny review, The Journal of Social Work and Family Law, analysed the work of the PSHO in its report Parliamentary scrutiny of the Parliamentary and Health Services Ombudsman. This report spoke positively about the link between the Ombudsman and the Legislative bodies that have oversight of them and that this was a strength of the Ombudsman process.
Scottish Public Services Ombudsman (SPSO)
The Scottish Public Services Ombudsman | SPSO was established approximately 20 years ago based mainly on The Scottish Public Services Ombudsman Act 2002. The SPSO has four main functions:
Addressing the final stages of complaints about public services;
The powers and obligations to publish "complaints handling procedures and monitor and support best practice in complaints handling";
Independent review service for the Scottish Welfare Fund with the power to overturn and substitute decisions made by councils on Community Care and Crisis Grant applications; and
Independent National Whistleblowing Officer for the NHS in Scotland, the final stage for complaints about how the NHS considers whistleblowing disclosures and the treatment of individuals concerned.
This Ombudsman Scheme reflects on the outcomes of investigations and uses learning from the enquiries to improve the quality of services – it then shares this with the Government to inform policy development (Policy work | SPSO). For example, in their policy development section they explain that since 1st April 2017 the SPSO has commenced considering complaints about social work care, including child protection issues. Each month they publish outcomes of specific cases and reference themes identified such as "failure to listen to and take the views of children into account; and failures to gather all relevant evidence and provide a clear rationale for key child protection decisions"[8]
Tynwald Ombudsman (Isle of Man)
In the Isle of Man, the Tynwald Ombudsman is the Tynwald Commissioner for Administration, who is appointed by Tynwald under the Tynwald Commissioner for Administration Act 2011. Although the title is different, the functions of the Commissioner are similar to the functions of Ombudsman in other jurisdictions.
"The Commissioner's function is to investigate complaints from members of the public who claim to have sustained injustice or hardship as a result of service failures by, or the administrative actions of, the Government Departments (including action taken on their behalf); Statutory Boards; the Manx Museum and National Trust; the Public Services Commission; the Attorney General's Chambers; the General Registry; and industrial relations officers appointed under section 5 of the Trade Disputes Act 1985." [9]
States of Jersey Complaints Board
The States of Jersey Complaints Board provides a process whereby people can refer complaints about public services if they are dissatisfied with the outcome of any complaint made to the relevant public service. The Complaints Board is an "associate member" of the Ombudsman Association and acts as a "complaint handler member".
The Administrative Decisions (Review) (Jersey) Law 1982 established the States of Jersey Complaints Board, which was previously known as the Jersey Administrative Appeals Panel. Its role is to investigate complaints by members of the public. The complaint may be about any matter of administration by any Minister or department of the States, or by any person acting on their behalf.
The members of the Complaints Panel (from which Board are made up) (the "Panel") are not States Members and are all independent. They give their services on a voluntary basis.
A States of Jersey Complaints Board is constituted for each complaint, from the Panel. Each Board is composed of 3 people selected from the Panel by the Chair of the Panel - one member must be either the Chair or Deputy Chair of the Panel. If the Chair, Deputy Chair, or members of the Panel, have a conflict of interest, they will not take part in a Board. In this way, the public can be sure that all Board members are completely unbiased and impartial.
The full process for formation of a Board is explained in States of Jersey Complaints Board information booklet and the Administrative Decisions (Review) (Jersey) Law 1982.
The Chair has the option of trying to resolve the complaint on an informal basis once all the paperwork has been forwarded by the States Greffe. If this mechanism does not resolve the complaint, a Complaints Board is appointed to consider the matter at a hearing. There are time frames for each of the steps in managing complaints. If a public hearing is convened, both the complainant and the Minister/Department representative will be required to attend.
The role of the Complaints Panel is to consider complaints made by members of the public, but it does not mean that a Board can overturn a decision made by a particular Minister. However, it can decide, as set out in Article 9(2) of the Administrative Decision (Review) (Jersey) Law 1982, whether that decision, act or omission, about which a person has made a complaint –
- was contrary to law;
- was unjust, oppressive or improperly discriminatory;
- was based wholly or partly on a mistake of law or fact;
- could not have been made by a reasonable body of persons after proper consideration of all the facts; or
- was contrary to the generally accepted principles of natural justice. If the Board believes that a complaint should be upheld, it can ask the Minister, Department or person concerned to reconsider the matter. It is then for the Minister, Department or person concerned, to decide whether to act on those findings.
In summary, the Board will not be able to say whether the decision itself was wrong. It can only determine whether the Minister or Department dealt with the complaint under the relevant policies and procedures. If the Board decides to uphold the complaint, it can ask the Minister or Department to reconsider the matter. At this point, if the outcome was deemed to be "insufficiently considered or implemented" a report can be sent to the Privileges and Procedures Committee, copied to the Minister and Department for information. The Committee or any individual States Member can then bring a proposition to the States Assembly in respect of the complaint. Alternatively, if the complainant is dissatisfied with the final findings of the Complaints Panel, they are permitted to approach a States Member or legal representative to pursue a resolution.
Plans to institute a Jersey Public Services Ombudsman Scheme
There has been significant debate and analysis about developing a Jersey Public Services Ombudsman (JPSO) department to replace the States of Jersey Complaints Board. In 2017, the Jersey Law Commission produced a report Improving Public Administration Redress in Jersey which examined various forms of redress in Jersey including the Tribunal system; updating the existing States of Jersey Complaints Board recommendations to improve the functioning of the Complaints Panel, and the option of developing a JPSO department. The latter option was recommended by the Jersey Law Commission.
The following year, proposition P.32/2018 Public Services Ombudsman Establishment of Office was debated by the States Assembly on 22nd March 2018. Further research into the costs of the scheme was approved, along with consultation about the design of the Ombudsman scheme. It was also agreed, subject to these findings, to request the development of primary legislation to institute a JPSO and to set up a Shadow Public Services Ombudsman to facilitate the transition to the JPSO.
In November 2018 the Jersey Law Commission prepared a report Designing a new Public Services Ombudsman for Jersey. This report examined the options for the design of a Public Services Ombudsman, broadly followed the suggested work plan included in the original proposition's report and referred to the suggested work plan identified in P.32/2018.
In 2019, the Jersey Public Services Ombudsman consultation was completed. The Jersey Public Services Consultation Report, January 2020 explains the Legislation Advisory Panel's provisional policy response which was to be used to enable the development of a draft law.
Policy Development – next steps
The Strategic Policy, Planning and Performance Department ("SPPP") have been preparing policy in preparation for the proposed legislation being adopted in the future.
Policy was developed under the previous government following the conclusion of the public Jersey Public Services Ombudsman Consultation in 2019. At this stage SPPP are working with new Ministers to ensure that their policy objectives for the proposed Ombudsperson are understood and achieved. The new Government are yet to provide a steer on the policy, other than to direct that this is a key priority.
[1] The Association is "a professional organisation for ombudsmen schemes and complaints handlers in the UK, Ireland, British Overseas Territories and British Crown dependencies".
[2] An Insight Into the History and Evolution of Ombudsman (libertatem.in)
[3] https://www.ombudsmanassociation.org
[4] European Scientific Journal 2014- Ombudsman - Historical view
