In this interview with LexisPSL Public Law, Ros Foster, partner, and Patrick O’Connell, solicitor, at Browne Jacobson, outline the draft Public Service Ombudsman Bill recently laid in Parliament, which aims to introduce a Public Service Ombudsman (PSO) with improved access, structure and powers.
The draft PSO Bill has been laid in Parliament, the Cabinet Office has confirmed. The draft Bill provides for the functions of the Parliamentary and Health Ombudsman and Local Government Ombudsman to be combined into one single body. It affords the PSO new powers and provides for complaints to be made without a representative. The Bill was announced in the Queen’s Speech of May 2015.
What is the policy background to the draft Bill and the argument for the creation of the new PSO?
In 1966, before the creation of the Parliamentary Ombudsman, there was discussion about whether that office’s jurisdiction should include NHS and local government services. When the National Health Service Reorganisation Act 1973 created the office of the Health Service Ombudsman, the then Parliamentary Ombudsman, Sir Alan Marre, was appointed as the Health Service Ombudsman. Since Sir Alan’s appointment, the two offices have operated as one and, by convention, the same person has been appointed to both roles.
The discussion regarding the public services complaints process reoccurred before the Local Government Act 1974 (LGA 1974) created the Local Government Ombudsman. This time, rather than increasing the Parliamentary Ombudsman’s jurisdiction to include local government or appointing the Parliamentary and Health Service Ombudsman as the Local Government Ombudsman, Parliament decided that a separate office tailored to the specific needs of local government was needed. However, to ensure close working between the ombudsmen, the Parliamentary Ombudsman was made an ex-officio member of the Local Government Ombudsman’s governing body aka the ‘Commission for Local Administration in England’ (LGA 1974, s 23(2)).
The introduction of the Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007, SI 2007/1889, gave the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman the ability to carry out joint investigations, which led to the offices working more closely together.
The recent policy background to the draft Bill, however, starts in earnest with the Law Commission’s 2011 report on the Public Services Ombudsmen (Law Com No LC329). The report made a number of recommendations in respect of public sector ombudsmen to improve governance, independence, information sharing/publishing and public access to the ombudsmen (such as removing the ‘MP filter’ on complaints to the Parliamentary Ombudsman and the restriction on ombudsmen investigating matters that had been taken to court). The report also recommended a wide-ranging review of public services ombudsmen.
In the wake of the Law Commission’s report, in November 2013 Robert Gordon CB wrote a report on the governance of the Local Government Ombudsman for the Secretary of State for Communities and Local Government (the Governance Review of the Local Government Ombudsman Service). One of the report’s key recommendations was, in recognition of the pressure on public finances and the changing nature of public services (particularly the integration of the NHS and social care), that consideration should be given to combining the offices of the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman. In addition, the report recommended that the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman should continue their closer joint working on investigations (which had been enabled by the 2007 Regulatory Reform Order) and closer working on shared services (which had been enabled by the more recent amendments to LGA 1974 by the Localism Act 2011).
Further reviews of public services ombudsmen in 2014 (for example: Time for a People's Ombudsman Service in April 2014 and Better to Serve the Public: Proposals to restructure, reform, renew and reinvigorate public services ombudsmen in October) by Mr Gordon and the Public Administration Select Committee (the predecessor of the Public Administration and Constitutional Affairs Select Committee) called for legislation to introduce a new PSO with improved access, structure and powers, including its own initiative powers (the ability of an ombudsman to investigate a matter without a complaint).
Following a consultation, the Cabinet Office decided in December 2015 that it would work to create a PSO that combined the jurisdictions of the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman, but not the Housing Ombudsman. The Cabinet Office said that this would indeed improve access, structure and powers. However, the idea of the PSO being able to carry out ‘own initiative’ investigations was rejected. Instead, the Cabinet Office said the PSO should have the same power that the Local Government Ombudsman currently holds to widen the scope of an investigation without a further complaint (LGA 1974, s 26D).
Drawing heavily on Mr Gordon’s reviews and the work of the Public Administration Select Committee (and its successor), the key policy intentions underpinning the draft Bill are to create:
- a new more efficient organisation with a strengthened modern governance structure
- an improved relationship with, and accountability to, Parliament through the Public Accounts Commission
- a more straightforward complaints process
- improved access to the PSO
- new powers to share and publish information, and
- a new role to champion and monitor the complaints process
What are the proposed functions/powers of the PSO proposed under the Bill?
The main function of the proposed PSO will be to investigate and report on complaints from members of the public who claim they have suffered injustice or hardship as a consequence of the actions of the public bodies designated as being in the PSO’s jurisdiction. The PSO will undertake this function on behalf of Parliament (draft Bill, cl 1(2)).
Other functions and powers of the proposed PSO are as follows.
Expanding the scope of an investigation
While the government has decided against own initiative powers, the PSO will have the power to expand the scope of an investigation to include matters without a further complaint (draft Bill, cl 13). The Local Government Ombudsman currently holds this power, but it is a new power to the bodies in the Parliamentary and Health Service Ombudsman’s jurisdiction. It means that the PSO will be able to expand the scope of investigations of NHS and central government departments into other matters without a complaint or other external trigger.
Championing improvements in the complaints process
The PSO will have a new role overseeing and championing improvements in the complaints processes of the bodies in its jurisdiction. This power reflects powers given to the Scottish Public Services Ombudsman to oversee Scottish complaint handling (Scottish Public Services Ombudsman Act 2002, ss 16A–16G).
Sharing information and publishing reports
As with the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman, the PSO will have far-reaching powers to obtain information from any person, as well as the same powers of the High Court to call witnesses and require documentation (draft Bill, cl 11).
Due to their far-reaching powers to obtain information, the Parliamentary and Health Service Ombudsman and, to a lesser extent, the Local Government Ombudsman have tight controls on the situations in which they may release information obtained for an investigation and share investigation reports. Restrictions on the PSO’s ability to share information have been maintained in the draft Bill (draft Bill, cl 20 and Sch 5).
Unlike the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman (bodies that could only obtain information subject to legal privilege from Crown Bodies), the PSO will be able to obtain information subject to legal privilege from any body in jurisdiction (draft Bill, cl 11(6)). Nevertheless, as a balance to this new power, the PSO will not be able to disclose or refer to having obtained privileged information without the consent of the body in jurisdiction (draft Bill, Sch 5, para 5).
The proposed restrictions on the PSO in the draft Bill have been significantly restructured, however. The PSO will now only be able to include information identifying a person or ‘confidential information’ (draft Bill, cl 11(5) and Sch 5, para 4(4)(b)) that has been obtained for an investigation in reports or decision letters, which are sent to a person or laid before Parliament if a public interest test is met (draft Bill, Sch 5, para 4(1)). This is a major departure from the existing legislation. Currently, the Parliamentary and Health Service Ombudsman has wide discretion about what information to include in the reports and decision letters that are sent to people or laid before Parliament, and the Local Government Ombudsman is only restricted from including information identifying a person in published investigation reports where a public interest test is not met.
The restrictions on the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman sharing information meant that in the past they were not always able to use all the information they held to assist regulators, particularly the Care Quality Commission (CQC), or drive wider improvements to public services. The proposed new power of the PSO, however, will allow it to share information with other public bodies to assist with their functions in relation to bodies in the PSO’s jurisdiction (draft Bill, Sch 5, para 3(2)(a)). Essentially, this will allow the PSO to share information, where appropriate, with regulators, sponsoring departments and other public bodies.
Another proposed power worth mentioning is the one that will allow the PSO to ‘re-open’ a complaint, if doing so is in the interests of the parties to the complaint (draft Bill, cl 4(6)). This will avoid the possibility of the PSO becoming functus officio (where a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it) and not being able to revisit an investigation in which a material mistake was made without a court order.
Alternative legal remedy
There has also been an important change to what is known as alternative legal remedy. Currently the alternative legal remedy provisions in the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman’s legislation prevent the ombudsmen from investigating a complaint where the person could obtain, or could have obtained a legal remedy from a court or tribunal, unless it is, or was, not reasonable for the person to resort to the legal remedy.
This meant that in situations where a person resorted to a legal remedy, but the court or tribunal could not provide all of the appropriate remedy (for example, the court could only quash a decision but could not also provide a financial remedy for the distress), the person would not be able to approach an ombudsman to receive the outstanding remedy. The PSO will be given the power to investigate a complaint even where the person making the complaint has already taken the complaint to a court or tribunal (draft Bill, cl 7(2)(b)). This means a body in jurisdiction might have to defend a claim in the courts or a tribunal and, in addition, face a PSO investigation of the same matter.
Public sector procurement
The Parliamentary and Health Service Ombudsman is currently restricted from investigating complaints about commercial transactions, including public sector and NHS procurement activities. The Local Government Ombudsman is also restricted (but to a lesser extent) from investigating some commercial matters. While the draft Bill maintains some restrictions on the PSO investigating commercial transactions, the PSO will be able to investigate matters relating to public sector, NHS and local government procurement, including tendering processes and contract management (draft Bill, Sch 4, para 18(3)(a)). This change could provide those who are dissatisfied with public sector, NHS and local government procurement processes with an alternative remedy to the courts. It might, therefore, have a significant impact for legal practitioners in the public procurement field.
What does this mean for the Offices of the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman?
The Commission for Local Administration in England (the Local Government Ombudsman), the Health Service Commissioner for England (the Health Service Ombudsman) and the Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) will all be abolished under this proposed Bill (draft Bill, cl 29(1)). The Minister for the Cabinet Office may make transitional or consequential provision in connection with the abolition of the offices (draft Bill, cl 29(2)), but draft regulations have not been published at this time.
What does this mean for public bodies within the PSO’s remit?
Bodies in jurisdiction might be wary of the PSO’s new powers to investigate matters that have previously been to, or are still ongoing at, a court or tribunal. Similarly, the PSO’s ability to re-open completed investigations might be a cause for concern among bodies in jurisdiction. Public sector, NHS and local government lawyers, meanwhile, are likely to be cautious of the PSO’s expanded (and, one could argue, unique) power to obtain privileged legal advice.
There are, however, some big positives for bodies in jurisdiction. The PSO will be required to publish a statement setting out the general procedures that will be followed when carrying out investigations, for example. This requirement should help bodies in jurisdiction by outlining the investigation process and what to expect from the PSO during investigations.
The PSO’s new role as a champion for the complaints process should also help bodies in jurisdiction improve their complaints processes and better understand what approach the PSO will expect them to take in relation to complaints in different situations.
Bodies in jurisdiction that work closely with other sectors (for example, health and social care) should also benefit from only having to deal with one ombudsman during investigations of integrated services.
It is worth noting that all bodies currently in the jurisdiction of either the Parliamentary and Health Service Ombudsman or the Local Government Ombudsman will be automatically transferred to the PSO’s jurisdiction. The draft Bill does not include a list of the bodies in jurisdiction; instead, an extra-statutory list will be laid before Parliament at least once a year and then published by the Cabinet Office.
What are the pros and cons of creating a single PSO? Are there any concerns surrounding the proposed changes?
Making the complaints process more straightforward for the public, particularly the vulnerable groups using integrated health and social care services, is one of the main advantages of a single PSO. The complaints process will also be more straightforward for bodies in jurisdiction that work closely with other sectors. Indeed, only having one ombudsman should also lead to efficiency savings.
Nevertheless, there is a concern that the draft Bill might not go far enough. The government has chosen not to include the Housing Ombudsman’s jurisdiction, for example, although there is provision in the draft Bill for this to be included in the future (draft Bill, cl 26).
Furthermore, even though the complex relationship between the Health Service Ombudsman’s jurisdiction and the CQC complaint investigation function has been resolved, the government did not take the opportunity to include the CQC’s Mental Health Act 1983 complaint investigation function in the PSO’s jurisdiction. Ultimately, however, the PSO’s jurisdiction is flexible, meaning that other areas can be added in the future as and when needed.
What happens next? Do you have any predictions for the progress of the Bill?
The draft Bill will now be subject to the scrutiny of both Houses of Parliament. We expect members, particularly the members of the Public Administration and Constitutional Affairs Select Committee and the Public Accounts Commission, will want to discuss the draft Bill with the Parliamentary and Health Service Ombudsman, the Local Government Ombudsman, and the Cabinet Office before further progress is made.
This article was originally published in LexisPSL Public Law. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.