The art of an effective Ombudsman: access to justice, accountability and improving public services



PHSO's The art of an effective Ombudsman event took place at Church House in Westminster in May 2022. We discussed our new corporate strategy and were joined by organisations with an interest in access to justice, public service accountability and the role of a modern Ombudsman.

In his keynote lecture, Rob Behrens talked about barriers to justice and opportunities for us to address them through our new strategy.

Rob was also interviewed at the event by journalist and lawyer, Joshua Rozenberg. They discussed: 

  • how we will be user-led and responsive to citizens
  • how we will hold Government to account and support improvement to public services
  • what powers we need to provide the most effective Ombudsman service.

The discussion will be available soon as a Radio Ombudsman podcast.

Keynote lecture: Barriers to justice and opportunities for PHSO to address them through its new strategy

Listen to Rob Behrens' keynote lecture or read the transcript below.

Thank you, Fiona. Good morning, everybody. Thank you, Fiona for those timely remarks about how we need to come together and share our learning. It's so good to see everyone here today. If you're not mentioned, it's because you're so special you don't need mentioning.

There are lots of people I want to thank for coming that I can't. But can you forgive me for welcoming my new counterpart in Wales who is here today, Michelle? Where are you, Michelle, you're greatly welcome. We've greatly look forward to working with you together. Nick Caetano, who who's come the furthest to be at this meeting from Gibraltar, you're greatly welcome. All other Ombudsman colleagues and academics, everyone who makes a contribution to administrative justice.

We we're here to talk about our corporate strategy and our vision. It's about helping citizens and non-citizens, which is what all of us try to do. And to do that we need to talk constructively about how we can align our roles and our goals and collectively improve life for those who've been let down and need our help.

I've had five years as National Ombudsman and we need to improve but we can point to substantial improvements over the period. We have revived the parliamentary dimension of our role, with key investigations into Windrush, the Foreign Office, women’s state pensions, Social Security payments and HS2.

We have reviewed and reformed how we use clinical advice, a critical element in speaking truth unto power and we've adopted a new Ombudsman standard, which is important in doing that.

We've become more transparent, a more open organisation. We now publish case summaries every month. We have the most vibrant liaison team which connects and exchanges with bodies and jurisdiction on a weekly basis.

We have regular dialogues like this with stakeholders, and we have Radio Ombudsman. If you want affirmation about the unequal path to justice in the UK, listen to the recent Radio Ombudsman interview which I did with Nick Bennett, interviewing Will Powell. Now Will Powell, as you know, is still seeking accountability for the avoidable death of his son Robbie 32 years after the event. And he has our full support in trying to do this and to get a public inquiry.

We've researched, consulted on and are now piloting the NHS complaint standards across dozens of bodies in jurisdiction. And a government version of complaint standards is now being consulted on. We can't do this on our own. There are many people here whom we have to thank for participating in this and sharing their knowledge. Both these things bring a clear and simple set of standards to frontline complaints services in public administration, which is badly needed.

We've invested heavily in professionalising and accrediting our staff in a way which is unparalleled among sister ombudsman schemes across Europe.

Our policy reports have had an important impact in improving some public services, reflecting on recurring issues, such as death in mental health services, eating disorders and failings in radiology.

And we are now as acknowledged by the Select Committee, PACAC, as an active international player playing a leading role in the International Ombudsman Institute and sharing best practice on redress, mediation, CPD peer review with dozens of national schemes.

Finally, in five years, our staff morale and commitment is now unrecognisably good in comparison to what it was five years ago. We can't do this as leaders on our own. We can only do it in collaboration with the people that we work with, but there's still much to be done.

Most of you will know, as Fiona said, that the ombudsman service was established 55 years ago to provide for parliament an independent and impartial service to handle complaints about public administration. In an outdated, flawed, but still useful remit, we speak truth unto power and, without coercive powers, we hold public bodies to account. We are an ombudsman service, we are not a regulator.

My brief time at PHSO has been an opportunity to build jointly with the remarkable Amanda Amroliwala. A model of collective leadership that recognises that corporation’s soul in governance in large schemes is a constitutional fiction. Instead, we encourage leaders at all levels of the ombudsman service to deploy rigour, evidence-based approaches to redress, effective communication (absolutely critical), discretion and empathy to hold public bodies to account.

When we find something has gone wrong and there's no evidence of learning, we lay our reports in Parliament to ensure that the public body is held to account. This is our role. It's not a popular one. It's a heavy responsibility and we take it seriously.

Now, while as Amanda has said, hopefully, the worst of the pandemic is behind us, the impact continues to reverberate throughout our society and institutions. And it's crucial, now more than ever, that we hold public bodies to account for what they did and didn't do.

Unfortunately, as you may have seen, we are disappointed by the terms of reference set out by the Government for the independent COVID inquiry. They don't go far enough and they miss some important points. But where are we now?

An important question which we have to address is how we can work collectively together to ensure that the culture of learning, which is so necessary, is genuinely embedded. And we can't do this without examining first where public policy and standards are at this moment in our history.

A long time ago as a young British civil servant, I worked at the Constitutional Assembly in Cape Town, the Chair of the Assembly. Then known as Comrade Cyril Ramaphosa said to me, “Look, Rob, we know you British are reactionaries. So don't bother to hide that, but you are not corrupt. So show us your experience.” And I hope that the last part of this point is still true.

Last week, I was in the USA for a meeting of the World Board of the International Ombudsman Institute. Outside Independence Hall in Philadelphia, I saw the very moving sight of a group of small school children gathered together around a statue and reciting routinely, and from memory, the preamble of the United States Constitution. “We, the people of the United States…” it began, setting out what was in it and what was not in it.

Now we know that America has its constitutional problems, but so do we in the UK. And we have no codified constitution to guide us. It's clear that there is a serious problem in the erosion of trust in public bodies in the UK. Rather than having a written document, British people have an implied social contract, whereby they work hard and pay their taxes in exchange for public institutions that uphold values of integrity, quality, and transparency.

But what we are seeing repeatedly is a failure from public bodies to live up to the standards. There are too many cover ups, ‘fob-offs’ and brick walls to navigate. And people tell us on the telephone that they are losing faith in their public institutions.

Earlier this year, we published and investigated a harrowing case about a seriously ill woman who had her benefits payments severely cut due to a Government mistake. As a result of this mistake, her hair fell out, her mental health deteriorated and she was at risk of hypothermia as she could not afford to heat her home. This issue, this mistake, has affected 118,000 people with disabilities and health problems. And what is most shocking in all of this is that the Department of Work and Pensions, an organisation that is responsible for supporting those most in need, made a choice to deny the right of compensation following their mistakes over benefit payments. We hear stories about this nearly every month in our casework. It is unacceptable and we're working closely with the Work and Pensions select committee to address this issue.

In addition, there are widening health inequalities. While people continue to have empathy for the stresses and strains of the NHS - a magnificent institution - the recent British Social Attitudes Survey tells us that the public satisfaction with the NHS is its lowest since 1997. Patience is wearing thin, we must not and we will not blame hard working individual NHS staff for this, but it is a symptom of cultures and systems.

The pandemic has exposed and exacerbated widening health inequalities. The direct harms of COVID infections most deeply affected the most disadvantaged in society. And in the aftermath of the pandemic we know the people with more financial resources have autonomy to get redress in the way that those that don't do not have. From dentistry to maternity, people in poorer or marginalised communities have the greatest difficulties in accessing care.

As part of our new strategy, we are continuing to commit to identifying and calling out flagrant breaches of fundamental and human rights where we see them. Protecting and promoting fundamental rights is a key role of public ombudsman services, as set out by the Venice Commission in their Venice Principles on the protection of ombudsman institutions.

As you may know, and some British officials don't, the Venice Commission is part of the Council of Europe, which the UK is a full member of. These principles –endorsed by a unanimous 2020 United Nations General Assembly Resolution, jointly sponsored by our own Government – point to large weaknesses in our own mandate, most recently recognised by the Commission in its scathing criticism of the UK version of safe space in the National Health Service.

We have seen distressing examples of human rights breaches in our casework such as those affected by the Windrush scandal. We saw examples of home office mistakes, meaning that people were unable to claim benefits they were entitled to. And as a result, they lost their jobs, their homes, their sense of dignity, and they experienced severe mental and emotional distress. This is not in a third world country, this is in the United Kingdom. In one case we investigated the complainant died less than a year after he was he was granted citizenship. And we're working with the Administrative Justice Council, Robert Thomas – I’m glad he's here today – who've carried out very important work around this issue.

Now, what are we going to do about the current challenges?

The corporate strategy is a framework but that's just the beginning. There are four key issues. First of all, we cannot be highly effective without considering how we will improve people's access to justice. Our own public recognition is far too low. I admit that - it's less than 20%. This is no lower than other similar UK bodies, where we suffer from an excessive number of ombudsman schemes. But it's poor in comparison to international counterparts, where there's usually only one public service ombudsman, and in Austria, a weekly ombudsman TV show on public service television. You may ask, do I want to be Judge Judy? The answer to that is no.

But we need together to do much more to improve our visibility, our outreach, in a way that provides access to people for justice in marginalised communities. And as part of this, as you'll see from the document in front of you, The Art of the Ombudsman, we've started debates about how to reach out to communities who haven't necessarily been to us, and we need your support and advice about how to do that. We’ll work in partnership with you and international organisations to make sure we do this.

Secondly, we need to get better at how we capture and use data drawn from our casework so that we can forecast systemic trends, share and discuss these with our partners and increase our impact. This will help us intervene when we need to and focus our attention and resources on policy areas that are most pressing.

We need to be more effective at using the data we have from half a million inquiries in the last four years. We have an ambitious new data strategy that will enable us to do that. But I want to make a confession - we will use artificial intelligence. But the danger for ombudsman schemes, as I said in a conference in Barcelona last year, is that we ombudsman are the William Huskisson, the overweight cabinet minister who was run down by a train in 1830 because he didn't get out of the way quickly enough. It's like that with artificial intelligence. There are 1000’s of specialists out there who want to capture us, and we need to be very careful and use our own expertise to make sure that doesn't happen.

Thirdly, it's about professionalising our own staff. We focused heavily in the last four years on professionalising our colleagues rolling out a magnificent training and development programme, to ensure our staff have the skills, knowledge and confidence to perform their roles.

When I first came in 2017, people said to me, we will give you time, but if you don't give us expertise, if you don't give us the skills that we need to do a very difficult job, then you won't have our support. And we have a commitment, enduring and into this new strategy, to make sure we accredit and give professional development across the board to a whole range of people to ensure they can develop their careers and represent us effectively.

We're looking to develop the PHSO Academy of Learning so that we can further develop opportunities for people outside PHSO as well. And our Academy is magnificent at the moment. It has more than 50 people in it, new people who've come in and are learning how to do the job.

And finally, PHSO is committed to supporting and improving frontline complaint handling. We know that many citizens making complaints do not get - despite the excellence of the people in departments – they don’t get a positive experience and don't feel always that their complaints are taken seriously.

I think this is also due to the emerging trend of Government departments tending to see complaints as a nuisance. There is a leadership deficit here, for organisations need to step up to support their complaints handling teams - and they're not always supported, as they tell me - and to adopt a robust narrative about the value of complaints and feedback. And to address this, we've led the way but we work in partnership with a range of stakeholders to develop the complaint standards initiative.

The standards combine existing guidance with an invitation to look at the values behind it. Look at the case we published two weeks ago of the Foreign Office, where there was a rape allegation in Turkey and guidance about what victims should do was not available at the weekend. And the alleged victim was told to go away and enjoy the rest of her holiday. That is shameful. That is shocking. That should not happen in any department anywhere in the United Kingdom. So there is a key role for Government and the Government is falling short. The truth is that not everything is in the Ombudsman's gift. The Government say they want to increase access to justice and for public services to improve and to be responsive to the citizen. But for this to happen, the Government needs to reform the legislation that underpins our service. So we can support these aims even more effectively. The Government says it supports ombudsman reform in theory, but we've seen no progress whatsoever since the failed 2016 Public Services Ombudsman Bill. Indeed, worse, the exclusion of the Ombudsman from the safe space in the NHS is a disgraceful backward step. The first limitation on Ombudsman powers for 55 years and roundly condemned by the Venice Commission. In common sense approaches, ombudsman reform should be part of the levelling up agenda and we need action and leadership from this Government.  And we need reform finally in the following areas.

First of all, I hope we can all agree that there needs to be a removal of the MP filter to our service. As Fiona will know, the MP filter was introduced as a temporary measure in 1967 to five years to see what happened. A timid piece of legislation, it means that any complaint made to us about a Government department or its agency must be referred to first by an MP. This is outdated. It's bureaucratic. It's burdensome and it causes confusion to an already hard to investigate and navigate complaint system. We cannot expect those who have experienced trauma to find their way and to tell their story again and again. We have to remove this barrier to justice so that citizens can have, as the Venice Principles say, direct access to the Ombudsman. But we must do so in a way that meets the legitimate concerns of the Chair of the PACAC Select Committee.

Secondly, own initiative powers. Many of my ombudsman colleagues, both internationally and in the devolved nations have long had own initiative powers. They can investigate a known issue without receiving a complaint and make recommendations so that timely improvements can be made. Other ombudsman services have launched landmark reports with this power. Look inside the Art of the Ombudsman. I give you at least 10 examples of the creative and constructive use of own initiative powers outside the UK. We need that because the people who don't complain are the ones who most need our services and are the most vulnerable.

And finally, the Public Services Ombudsman Bill. In 2016, there was draft legislation in parliament that addressed a number of the issues I've mentioned. It also aimed to bring together our service with that of the Local Government and Social Care Ombudsman, to create a brand new single Public Service Ombudsman for England. And as my good friend and esteemed colleague, Ombudsman Mick King agrees, we desperately need wholesale simple ombudsman reform so that we can together modernise our service and be more joined up and effective in serving people and supporting public services to improve. The Government talks a lot, but it's time it took some action.

I want to end by reiterating that we have, as the Ombudsman, a small but unique constitutional role to play in balancing the power between citizen and state. And this requires a comparative approach to learning and exchange. If you look at The Art of the Ombudsman, you can see that we have, together with 53 other international ombudsman services, explored leadership issues under COVID - with colleagues from Africa, South America, Europe and North America - in a way which helps us understand that while our position is difficult, it's not as difficult as those in some countries in Africa and in Eastern Europe.

The Manchester Memorandum is an attempt to make sense of this and to take reform for our services and those of other countries at hand. And at the heart of this is PHSO-led, independent peer review - an idea I stole from Mick King in 2018. But we've been working on it for five years. And I go to Athens this week, as IOI Europe adopts our plan to validate peer reviewers, guarantee independence and relaunch peer review methodology tied to the all-important standards of the Venice Principles.

So there we are, we must be comparative in our approach. And I cannot finish this without saying something about what's happening in the Ukraine. At the IOI, we are grappling with the question of how the ombudsman community should react to the events in Ukraine. But there's disagreement across the world about how to deal with the Russians. And my task is to try and make sure that the Human Rights Ombudsman of Ukraine is supported in what she's doing. And I'm trying to do that.

But our activity, while it must be international, has to begin at home. I was in New York when the Buffalo shootings occurred. And it was odd to me as an as a British citizen that there was no mention of gun control in the aftermath. But yesterday I was in Manchester, and it was the anniversary of the Ariana Grande concert bombing, where 23 people were killed and 1,000 people were injured, and there were memorials all over the city centre. Being an Ombudsman requires international learning and feedback, but this has to be rooted in what we do and don't do in our own jurisdiction.

Thank you very much.