The Ombudsman’s distinctive role
Jump to
As I have said above, the Ombudsman is not empowered to determine whether the law has been breached. The Ombudsman system of justice provides an alternative to taking a case to court but it is not a substitute or surrogate court. The Ombudsman asks different questions from those asked in a court and looks at different issues.
While the courts determine whether people have suffered damage as a result of unlawful actions, the Ombudsman considers whether people have suffered injustice or hardship as a consequence of maladministration or service failure.
If the complaint is upheld and an injustice is unremedied, the Ombudsman will recommend an appropriate remedy for the injustice or hardship suffered by the complainants. The Ombudsman may also recommend changes in practice to prevent the same thing happening again. It is most unusual for these recommendations not to be complied with.
Some of the people whose stories are set out in this report might have been able to make a legal claim that the public body concerned had failed to comply with their statutory duty to make ‘reasonable adjustments’ under disability discrimination law. Instead they brought their complaint to the Ombudsman. In accepting their complaints for investigation, we considered (as we are required to do by law) whether they had an ‘alternative legal remedy’ and if so whether it was reasonable to expect them to resort to it. In each case we decided that the outcome they were seeking was not available to them through legal action, but was achievable by way of an Ombudsman investigation. The Ombudsman is able to recommend appropriate individual remedies as well as systemic changes which are not available through the legal process.
Although the Ombudsman does not determine or enforce the law she is nevertheless helping to give force to the principles that underpin the law as they affect the circumstances of the individual concerned. She is able to do this in a way that is often more accessible, flexible and far-reaching than that of the civil courts. The impact of this flexible approach can be seen in the outcomes achieved as a result of Mr R’s complaint which may assist him to rebuild his confidence.
The Ombudsman also has a wider range of remedies available to her than do the courts. The cases in this report illustrate the different sorts of remedies that the Ombudsman can provide.
