Home > News > Speeches > The Ombudsman and ‘Paths to justice’: a just alternative or just an alternative?
Paper delivered by Ann Abraham, Parliamentary And Health Service Ombudsman
Institute of Advanced Legal Studies, 27 June 2007
The Ombudsman as a ‘system of justice’
The future of administrative justice
Footnotes
At a recent Ombudsman conference at Warwick University one of the guest speakers, the Ombudsman for Austria, provoked a good deal of amusement by describing the success of a reality TV show called, ‘The Ombudsman: top stories, hot topics’. Hard to believe, maybe, but this hugely popular programme draws its content from the human-interest material that passes across the Austrian Ombudsman’s desk every day of the week and regularly attracts an audience of up to a third of the population.1
That the Austrian Ombudsman struggled at first to understand his audience’s reaction – at first disbelief, followed by some mirth - reflects in part I suspect the difference in outlook between our respective jurisdictions: in Austria (and much of Europe, for that matter), the Ombudsman ‘idea’ is so central to local and national administrative law that it is the obvious place to turn for a social snapshot or a good story; in the English-speaking and common law world, the idea of attracting a similarly appreciative audience is at present, well, probably laughable.2
I am put in mind too of a recent exchange, at a conference of European Ombudsmen, with the Norwegian Ombudsman in which he gently chided the UK for allowing its judges to have the last word on whether an Ombudsman has come to the right conclusion. This he regards as a jurisprudential outrage. When asked whether in that case he considered the Ombudsman to be above the law, he had no hesitation in replying, ‘What do you mean? The Ombudsman is the law’.3
I do not intend going quite as far as that today, but I do want to stake a claim for the PHSO (and for public sector Ombudsmen more generally) as an integral part of the administrative justice ‘scene’ in this country, in fact as a coherent ‘system of justice’ in its own right.4 I want as well to identify some of the distinctive features of that ‘system’, of the Ombudsman approach, the things that make it significantly different from the conventional common law way of going about these things. This is justice, but not necessarily as we know it. In doing that, I want to suggest, however, that the Ombudsman system, although different, is complementary to the courts and tribunals on the one hand and to negotiated forms of alternative dispute resolution on the other; different from, yet receptive to elements of, both.
And I want as well to pose some questions that flow from these observations: if the Ombudsman system is complementary to the rest of the administrative justice system, to what extent do the other parts (the courts and tribunals, for example) repay the compliment by recognising it as such; and if this really is a system of justice, where in the Ministry of Justice is the overview of that part of the justice system and the ownership of developments in Ombudsman policy to be found?
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The Ombudsman as a ‘system of justice’
But let’s start with a brief survey of Ombudsman practice. Just what sort of things do Ombudsmen get up to? What sort of complaints do they investigate and what sort of remedies can they offer?
Between them, public sector Ombudsmen handle complaints about all the main public services delivered in England, Northern Ireland, Scotland and Wales. In 2006-07 the Parliamentary and Health Service Ombudsman dealt with over 14,000 enquiries; and completed over 2,500 investigations. Over 1,100 of the cases reported on arose in the health sector (the Healthcare Commission, NHS Hospital Trusts, Primary Care Trusts and Primary Care providers accounting for the majority). The balance related to a wide range of government departments and agencies, with the biggest repeat customers being HM Revenue and Customs (especially in respect of tax credits), Jobcentre Plus, the Child Support Agency, the Pension Service, and the Immigration and Nationality Directorate, as it then was. In 62% of cases investigated, the Ombudsman upheld the complaint in full or in part. In every one of the cases reported on in 2006/07, the parties complied with the Ombudsman’s recommendations.
These quantitative figures disclose substantial reach and scope. The remedies achieved as a result of PHSO investigation are equally diverse. In some cases, the remedy is pecuniary: a payment of £335 by the IND for a postal fee unnecessarily incurred; compensation from Jobcentre Plus for £18,000 arrears of income support, late payment of benefit, lost entitlement to free school meals and help with school uniforms; remittance by the Revenue of an overpayment of £7,500; reimbursement by the Disability and Carers Service of £9,500 to cover lost disability allowance plus interest over a four year period.
In others, it is non-pecuniary: a trust-wide audit of clinical records and the institution of training in the handling of MRSA positive patients; the review of a decision by a Primary Care Trust to refuse funding of continuing care; improvement of supervision, ward staffing levels and skill mix in the management of patients with dementia and poor communication; provision of weekend senior medical cover and better transfer procedures within a Primary Care Trust.
Levels of satisfaction with the PHSO’s work are high (especially when it is remembered that many complainants walk away empty handed): in our most recent customer satisfaction survey 63% of complainants were satisfied or very satisfied with the way in which their complaint was handled; and 51% spoke highly and positively of the Ombudsman and the service provided, with a large majority considering the Ombudsman to be responsive, accessible, sympathetic and fair.
This snapshot of PHSO work indicates good levels of business, diversity of remedy and client satisfaction. Compliance rates with the PHSO’s recommendations are very high, and almost certainly far higher than compliance with judgments imposed by the civil courts. Interestingly, compliance with our recommendations has gone up this year – from 99% in 2005/06 to 100% in 2006/07. There is no indication that the inability to make binding recommendations impairs the PHSO’s ability to deliver substantive justice.5
Moreover, it is apparent from the examples cited that complainants include in large measure those most vulnerable and experiencing ‘justiciable events’ that have the most direct bearing on their human rights and general well-being. As such, the PHSO (and the collective of public sector Ombudsmen) deserves serious consideration as a significant ‘path to justice’ for very many aggrieved and disadvantaged citizens.6
But to what sort of justice might the Ombudsman route be a ‘path’? What, in other words, are the distinguishing features of the Ombudsman approach? As we all know, after Lord Woolf’s reforms, there is more than one way to skin the judicial cat, or to mix my metaphors, in a world of judicial ‘horses for courses’ there is certainly more than one way (if I can put it this way) of being taken for a ride.
The Ombudsman way is not that of the courts and tribunals, nor is it for the most part the way of mediation or other negotiated ADR. An Ombudsman is an alternative, but it is an alternative forum for making decisions not an alternative to decision-making altogether. As Mr Justice Bean noted recently in his judgment in the judicial review of the Government’s refusal to accept my finding of maladministration in respect of official information provided about occupational pension schemes, the Ombudsman has ‘very wide discretion’; ‘a public adversarial hearing is not the only fair way of finding facts’; and it is not the way Parliament requires either of the Parliamentary or the Local Government Ombudsmen.7
In other words, although Ombudsman schemes may have plenty in common with the courts and tribunals, they are far from perfect clones of them. Of more interest, in fact, are the differences. Where the law, at least in this jurisdiction, has traditionally been characterised by formality, the observance of rigorous rules of evidence, adversarial process and the binding authority of precedent, Ombudsman practice by contrast has always prized its relative informality, its common-sense approach to evidence, its inquisitorial process and its capacity to do justice in the individual case, unfettered by the burden of binding precedent. As one commentator put it, ‘If the law is cold and rigid in its adherence to universal principle, an Ombudsman is warm and supple in his or her response to the particular’.8
It is of course precisely this sense of ‘otherness’ that invests Ombudsmen schemes with their attraction for potential litigants. Like other alternatives to the courts and tribunals, whether mediation, conciliation or arbitration, Ombudsmen rightly take pride in the relative speed, simplicity and low-cost of the ‘individuated’ and essentially inquisitorial form of justice that they administer. They have relative freedom in deciding for themselves the best way to get to the real heart of a particular dispute, picking out the key issues and if necessary redressing any imbalance of power between the parties. For those for whom the law’s cost, delay and inflexibility are active deterrents, the softer, gentler Ombudsman way is naturally enticing. It is, perhaps, a bit like (but only a bit!) the difference between complementary and conventional medicine, between acupuncture and the surgical knife.
And there is a bonus too. In order to remedy any mischief that is revealed by the investigation, an Ombudsman will generally have at his or her disposal a range of devices that will not merely provide for justice between the individual parties to the dispute but, crucially, that will also facilitate systemic change. In other words, an Ombudsman investigation has the potential to transcend the inherent individualism of conventional litigation. This quality is, for example, apparent in my own Office’s ability, provided by statute, to produce ‘special reports’ where necessary to root out systemic problems and exercise a somewhat more systematic check on progress. 9
It is tempting to suggest then that there is a considerable degree of rivalry between Ombudsman practice and the law, or at best that the two are related in much the same way as chalk and cheese, by a superficial similarity that dissolves on closer inspection into irremediable and disappointing difference. Yet the aspirations of the courts and of Ombudsmen are now, arguably, less than ever before, polar opposites. Since Lord Woolf’s reforms of the civil justice system and the more recent reorganisation of the tribunal system, the emphasis in both courts and tribunals is upon making each respective system work for those who use it, and upon finding procedures that offer genuine access, authoritative decisions and meaningful remedies. Underpinning these reforms is the ‘horses for courses’ philosophy I mentioned earlier, the recognition that the judicial sledgehammer is hardly the appropriate tool for cracking every contested nut in town.
Seen in that reformist light, the potential rivalry of Ombudsmen and the courts evaporates into potential partnership, with the Ombudsman system a mature and legitimate stable companion of the other two thoroughbreds. Indeed in 2002 the Court of Appeal lent credence to this consensual account.10
On such a view, there is clearly a place for early referral of disputes by the parties, or indeed by the courts and tribunals themselves, to an appropriate and alternative source of dispute resolution, such as an Ombudsman. But let me give an example of how the courts and Ombudsmen can bring their distinctive contributions to bear on the same issues in an even broader context.
In my role as Health Service Ombudsman for England I have done a lot of work on continuing care, that is, funding by the NHS of long term care for elderly and disabled people. This illustrates very well the respective roles of Ombudsmen and the courts – and how, if those roles are clearly understood, they can be made to work in the best interests of complainants.
In July 1999 the Court of Appeal gave judgment in a landmark case – ‘the Coughlan judgment’.11 The Court considered the issue of whether nursing care for a chronically ill patient might lawfully be provided by a local authority as a social service (and thus be means tested) or whether it was required by law to be provided free of charge by the NHS.
The judgment was that whether it was unlawful to transfer responsibility for the patient’s general nursing care to the local authority depended, generally, on whether the nursing services were:
- merely incidental or ancillary to the provision of accommodation which a local authority is under a duty to provide;
- of a nature which an authority whose primary responsibility is to provide social services could in fact be expected to provide.
That case determined the law – and determined the remedy appropriate in that case. But the Ombudsman continued to receive complaints about how the law was being applied by a number of health authorities.
In February 2003 I reported to Parliament on the outcome of the investigations of complaints about decisions of four different NHS Trusts in relation to patients’ eligibility for continuing care funding.12 I concluded that, since 1996 – both before and after the Coughlan judgment – the Department of Health had not provided the necessary guidance to NHS bodies to provide the secure foundation needed to enable a fair and transparent system of eligibility across the country; and that what guidance there was had been misinterpreted and misapplied by some health authorities in developing their own eligibility criteria, causing injustice and hardship to people in the cases I investigated.
As a result of that report, health authorities carried out over 12,000 retrospective reviews. And the Department of Health has estimated that around £180 million has been paid in retrospective payments to people – and their families – who had previously been denied funding.
So the Courts determined the law – and delivered the remedy in the individual case; the Ombudsman followed through – and delivered the remedy to others who had suffered injustice as a result of NHS maladministration.
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The future of administrative justice
I have argued that Ombudsmen deserve to be seen as a system of justice in their own right, albeit one that is different from, but complementary to, the courts and tribunals. Where then does that Ombudsman system sit in relation to the rest of the administrative justice system? Let me answer that question by looking briefly at three distinct but related issues: standard-setting in the public sector; human rights and the reform of public services; and the vexed question of public law remedies.
First of all, then, standard-setting. Ombudsmen are not regulators and should not aspire to be so. They should though be seen as the potential setters and promoters of principles of good practice rather than the mere enforcer of established rules, an active agency in shaping the future behaviour of organisations rather than the passive adjudicator of individual disputes.
A case in point is my own Office’s recent publication of its Principles of Good Administration, which are an attempt to be open and clear with both complainants and public bodies about the sorts of behaviour we expect when public bodies deliver public services, and the tests my office applies in deciding whether maladministration and service failure have occurred.13 By approaching this issue positively, we have in a sense turned the traditional Ombudsman pre-occupation with maladministration on its head: instead of looking retrospectively for instances of bad administration and performance, we are looking prospectively and supportively for good things, for prevention and not just remedial cure.
Secondly, there is the issue of human rights and the reform of public services. Although the passing of the Human Rights Act is a triumph for human rights principles, it also makes them easy prey to the ‘crisis of legalism’ and all that goes with it (‘red tape’, ‘compensation culture’, ‘political correctness gone mad’, ‘terrorist’s charter’, etc.).14 Where can we look for the remedy?
The Department for Constitutional Affairs, as it then was, last year published a review of the Human Rights Act that highlighted the continuing challenge of embedding human rights in public consciousness and in public sector practice.15 It has since followed up that review with new practical guidance for public officials.16
But in a complementary way, the judgment of Lord Woolf and his fellow Court of Appeal judges a couple of years ago in the case of Anufrijeva highlighted the possibilities for extra-legal adjudication on human rights issues by Ombudsmen, and in doing so demonstrated how disproportionately expensive the pursuit of maladministration complaints in the courts can be;17 and academic commentators have also noted the potential attraction of ADR, including Ombudsmen, for the resolution of human rights disputes.18
After all, in many jurisdictions oversight of equality and human rights legislation already rests in the first instance in the hands of an Ombudsman, and on a visit to the UK in 2005 the European Ombudsman highlighted the need for greater co-operation between Ombudsmen in safeguarding the rights of citizens and taking a ‘pro-active role in promoting the rule of law and respect for human rights’. 19
Even more recently, in Athens in April 2007, the Council of Europe invited its Commissioner for Human Rights, Thomas Hammerberg, to seek greater co-operation between his Office, National Ombudsman Institutions and National Human Rights Institutions, partly as a response to the backlog of 90,000 cases which currently chokes the European Court of Human Rights in Strasbourg, but partly too in recognition of the need to ‘repatriate’ human rights at national and grass-roots level, to take human rights out of the court room and into the administrative bloodstream and popular consciousness. 20
This is a challenge that public sector Ombudsmen already meet, albeit not always in explicit ‘human rights’ terms. It would though be virtually impossible for the Local Government Ombudsman to investigate disputes about social housing provision, social services, education admissions and exclusions without addressing issues of human dignity and using a measure of proportionality for adjudicating between competing interests.
The Prisons and Probation Ombudsman, whose remit has been extended to cover deaths in custody, is regularly confronting situations where the daily grievances of prisoners and their families touch upon matters that go to the heart of what even the most marginal can reasonably regard as the basic dignity afforded to their humanity. In Northern Ireland the Police Service Ombudsman has established herself as a significant force in the political culture, taking on investigations that go to the heart of human decency, respect and tolerance. And my own role of Parliamentary and Health Service Ombudsman inevitably entails exploring aspects of public service delivery that have direct repercussions for the dignity of individual citizens and their relationship with the State. Human rights and Ombudsmen are far from being strangers and might yet play a larger role in delivering a human rights culture in the public sector.
And thirdly, there is the matter of public law remedies, currently under consideration by the Law Commission.21 My own Office is also consulting on a set of principles to govern the provision of remedy by the Ombudsman.22 Within my own practice there already exists the notion of ‘corrective justice’, of repairing damage and if necessary providing compensation not just for financial loss but for ‘softer’ disadvantage, such as injury to feelings. Within the administrative justice system more widely, that underlying principle has been slow to gain universal recognition and it may indeed be true that in public law disputes its application is more complicated than in a private law dispute between individuals. Nevertheless, the current differences in approach to what might in essence be very similar causes of dispute cry out for some form of rationalisation, in recognition of the need to ensure that disputes find their way to the forum that is most likely to deliver the right level of adjudication, the right remedy and the best prospects of future prevention.
And that in short is an argument for integrating the Ombudsman system of justice more consciously and deliberately than at present into the wider administrative justice system. There is little sign that any effective mechanisms currently exist for ensuring that courts and tribunals refer suitable cases to Ombudsmen, although Ombudsmen very often have it in their remit to direct complainants to the courts and tribunals if competence lies in that direction.
You will search in vain too for a branch of government that sees it as its task to undertake the task of rationalisation. Even within the new Ministry of Justice, where such a remit might be thought to reside, I see little appetite for the task of imposing some sort of order upon the growth of the Ombudsman sector. That Ombudsman schemes will continue to multiply seems almost inevitable. Without strategic direction, and a coherent framework for the development of new Ombudsman schemes, that growth will surely undermine the sort of potential outlined in this paper for Ombudsmen to play an active part in the delivery of appropriate dispute resolution and indeed of justice. Even worse, it will very likely lead to the need for fundamental surgery of the sort dealt recently to the tribunal world.23 A ‘Leggat review of Ombudsmen’ cannot be that far away.
It is not too late to avoid that prospect. But the first step will be for government, and others, to recognise the part that Ombudsmen can, and already do, play as a system of justice in their own right. That does not require a prime time TV slot, but it does require greater understanding of the Ombudsman landscape and a recognition that Ombudsmen in this country have undoubtedly come of age.
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Footnotes
1 For details of the Austrian Ombudsman’s work, see www.volksanw.gv.at
2 On the international Ombudsman perspective, see www.ioi-europe.org. On domestic Ombudsmen, see www.bioa.org.uk
3 For details of the Norwegian Ombudsman’s work, see www.sivilombudsmannen.no
4 For official recognition of the need for a more holistic approach to the administrative justice system, see Department for Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals (2004), Cm 6243. See more generally, Mary Seneviratne, Ombudsmen: Public Services and Administrative Justice (2002)
5 Richard Kirkham, The Parliamentary Ombudsman: withstanding the test of time (2007)
6 The context is set by Hazel Genn, Paths to Justice: what people do and think about going to law (1999)
7 R v Secretary of State for Pensions, on behalf of Bradley and others [2007] EWHC 242 Admin.
8 Nick O’Brien, ‘Ombudsmen and the courts: time for dialogue’, The Ombudsman, December 2002
9 The Parliamentary Commissioner Act 1967. For discussion of this power, see Richard Kirkham, ‘Auditing by stealth? Special Reports and the Ombudsman’, [2005] Public Law 740
10 Cowl and Others v Plymouth City Council, The Times Law Report, 8 January 2002
11 R v North and East Devon Health Authority, ex parte Coughlan [2000] WLR 622
12 NHS Funding for Long Term Care, House of Commons 399 (2002-03)
13 PHSO, Principles of Good Administration (2007). See also, British and Irish Ombudsman Association, Guide to principles of good complaint handling (2007)
14 On the ‘crisis of legalism’ facing human rights, see Conor Gearty, Can human rights survive?, The Hamlyn Lectures 2005 (2006), chapter 3
15 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, July 2006. For discussion of the Review, see Joint Committee on Human Rights, The Human Rights Act: the DCA and Home Office Reviews, HL 278, HC 1716, 14 November 2006
16 Department for Constitutional Affairs, Human rights: human lives – A Handbook for Public Authorities (2006)
17 Anufrijeva v Secretary of State for the Home Department [2003] EWCA Civ 1406
18 See for example, Luke Clements and Janet Read, Disabled people and human rights: a review of the implications of the 1998 Human Rights Act for disabled children and adults in the UK (2003), 92
19 Nikiforos Diamandouros, The role of the Ombudsman in strengthening accountability and the rule of law, Lecture delivered at University College London, 29 November 2005
20 10th Round Table of European Ombudsmen and the Council of Europe Commissioner for Human Rights, Athens, 12-13 April 2007. For background to these discussions, see the Commissioner’s website at www.coe.int/t/commissioner
21 Consultation paper expected in September 2007
22 PHSO Draft Principles for Remedy, Consultation March 2007
23 See Tribunals, Courts and Enforcement Bill 2006
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