Principles for Remedy: Response to Consultation

Consultation began: 27 March 2007
Consultation closed: 19 June 2007
Response published: 11 October 2007

Introduction

This is the report to the consultation which sought views on our draft Principles for Remedy. It covers:

Background

On 27 March 2007, we published for consultation our draft Principles for Remedy. The consultation was held between 27 March 2007 and 19 June 2007.

The document sought views on the Principles to use when considering remedies for injustice or hardship resulting from maladministration or poor service. Remedying injustice is a key part of the Ombudsman’s work and we wanted to be clearer with complainants and bodies within the Ombudsman’s jurisdiction how we think public bodies and NHS providers should go about putting things right when things have gone wrong.

We also wanted to confirm our own approach to making recommendations for remedy. We aim to secure suitable and proportionate remedies for the complainants whose complaints are upheld and, where appropriate, for others in similar circumstances.

Our objective was to help public bodies and NHS providers to do that by promoting a common understanding of the approach to take when remedying injustice or hardship caused by maladministration or poor service. 

Summary of Responses

A total of 42 substantive responses to the consultation paper were received and a full list of those responding can be found here.

We were pleased to see that the draft Principles were generally well received with many people commenting that they would find it helpful to have greater clarity on the approach to take when considering remedies. A wide range of organisations responded including bodies within jurisdiction, advice sector groups, national and international Ombudsmen, professional bodies and others. The Cabinet Office co-ordinated Government Departments’ response. The Cabinet Office said that overall they welcomed ‘the development of the Principles for Remedy which follow naturally from the Principles of Good Administration. Taken together, they will provide a useful reference for your office, Departments and other bodies within jurisdiction, and complainants’.

Some respondents offered views on all of the issues in the draft Principles; others focused on particular areas. The comments below do not include the detailed drafting suggestions which we received but instead summarise responses to the four questions asked, and highlight the general themes and comments which emerged.

Our consultation asked four main questions:

1. Are these Principles written in a way that is relevant and helpful to your work?

Respondents generally welcomed the initiative and felt that the Principles were written in a way that was relevant and helpful to their work. People commented that it was useful to have an approach to remedy set out more clearly; that the Principles usefully included all the relevant matters to be considered when providing remedies; and that the Principles would provide helpful guidance for public bodies.

2. Are there any words or terms that are unclear?

Respondents did not find any terms ‘unclear’, but there were suggestions that it would be helpful to clarify and ‘sharpen up’ some of the wording. We have will therefore edited the language to make it more precise and more easily understood.

3. Should anything else be included?

There were some suggestions that the Principles should be more explicit about appropriate levels of financial remedies and how to calculate financial remedy, particularly in cases where there has been no financial loss. Whilst we understand this response, we do not feel it would be helpful for the Principles to set out detailed guidelines for financial remedies. Our view is that each case should be considered on its own merits. The Principles have therefore been deliberately drafted at a high level; they are not intended to be a manual offering detailed guidance on what should be offered in any particular case. We understand that in many cases the remedy will not be straightforward and will be a matter for judgment. But it is up to public bodies and NHS providers to make good any injustice or hardship suffered as a result of maladministration or poor service based on a balanced assessment of all the relevant circumstances.

It was suggested that the Principles should include the need to consider not only the need to apologise, but also to consider the most appropriate form of apology. The Principles might also point out that, where the complaint concerns a very complex or sensitive issue, it can be helpful if the complainant is provided with a single point of contact. We agreed with both these points and amended the draft accordingly.

4. Is the supporting text useful and is it helpful to have the final Principles presented in this way?

The majority of respondents thought that the supporting text was useful and that the Principles were clearly presented. The final Principles will therefore be presented in this format.

Other comments

Some respondents suggested that we should be clearer about the Principle of restoring complainants to their original position ‘and others who have suffered similar injustice or hardship’. It was thought that this may raise unrealistic expectations. Health bodies especially sought some clarification about how far it was reasonable for organisations to go in ensuring that any person similarly affected received appropriate remedy. We have amended the Principles to make it clear that remedies should not be automatically offered to others, but consideration should be given to those who have suffered injustice or hardship as a result of the same maladministration or poor service.

Some public bodies and health providers raised the point that with regard to financial remedies, there is often a balance between responding appropriately to people’s needs and acting proportionately within available resources. We note and acknowledge this concern, however, our view is that finite resources should not be used as an excuse for failing to provide a fair remedy and we expect public bodies and NHS providers to provide appropriate and proportionate remedies to reflect the circumstances of individual cases.

A number of respondents thought that it would be helpful if the Principles were illustrated with case examples. We agree that this would help to put the Principles into context and ‘tell the story’ more vividly. We will illustrate the Principles with case studies in our published case material in the future.

In response to a number of comments, we made clearer the link between our Principles of Good Administration and the Principles for Remedy. This will help illustrate our view that that providing proper remedies is an integral part of good administration. The Introduction to the Principles is also clear that remedies should be offered for injustice or hardship resulting from maladministration or poor service and not maladministration or poor service on their own.

Next steps

All the responses have informed the development of our Principles for Remedy and we are very grateful to everyone who responded. We will publish the Principles for Remedy on 11 October 2007.

List of Respondents

1. Adjudicator’s Office
2. Board of the Legal Complaints Service
3. British Medical Association
4. Cabinet Office co-ordinated response from Government Departments
5. Charity Commission
6. Chief Dental Officer, Department of Health
7. Commission for Social Care Inspection
8. Council on Tribunals
9. Department for Communities and Local Government
10. Department of Health
11. Environment Agency
12. European Ombudsman
13. Foreign and Commonwealth Office
14. General Dental Council
15. General Medical Council
16. Healthcare Commission
17. Her Majesty’s Courts Service
18. HM Treasury
19. Human Fertilisation & Embryology Authority
20. Immigration Advisory Service
21. Information Commissioner’s Office
22. Legal Services Ombudsman
23. Ministry of Defence
24. National Archives
25. National Audit Office
26. National School of Government
27. Nursing and Midwifery Council
28. Office of the First Minister, (Head of the Civil Service) Northern Ireland
29. OFSTED (Office for Standards in Education, Children Services and Skills)
30. OFWAT (Water Services Regulation Authority)
31. Pensions Ombudsman
32. Public and Commercial Services Union
33. Public Guardianship Office
34. Removals Industry Ombudsman Scheme
35. Richard Gordon QC
36. Royal College of General Practitioners
37. Royal College of Nursing
38. Royal College of Radiologists
39. Scottish Committee of the Council of Tribunals
40. Standards Board for England
41. Welsh Assembly Government, Permanent Secretary