COMMITTEE FOR THE OFFICE OF THE FIRST MINISTER AND DEPUTY FIRST MINISTER

PROPOSALS TO UPDATE LEGISLATION TO REFORM
THE OFFICE OF THE NORTHERN IRELAND OMBUDSMAN

A CONSULTATION PAPER ISSUED BY THE NORTHERN IRELAND ASSEMBLY
COMMITTEE FOR THE OFFICE OF THE FIRST MINISTER AND DEPUTY FIRST MINISTER

CONTENTS

1. Introduction
2. Merger into a Single Office
3. Purpose of the Office
4. Remit of the Office
5. Acquisition of Cases
6. Case Handling Procedure
7. Reporting by the Ombudsman
8. Enforcement
9. Appointment of the Ombudsman
10. Staffing and Finance
11. Governance and Accountability
12. Other Issues
13. Next Steps

INTRODUCTION

1.1 The office of the Northern Ireland Ombudsman has been in operation for 40 years and is the second oldest in the UK and Republic of Ireland (ROI). There are two statutory offices of the Ombudsman: the Assembly Ombudsman for Northern Ireland (AONI)¹ and the Northern Ireland Commissioner for Complaints (NICC).² The former deals with complaints about services provided by the departments of the Northern Ireland Executive and the latter with local government, health and social care and other public bodies including the Northern Ireland Housing Executive.

1.2 The Committee is considering updating the legislation to bring it in line with Scotland and Wales.

1.3 A review of the two offices was commissioned by the Office of the First Minister and the deputy First Minister and published in 2004.³ It made a series of recommendations, but the Office of the First Minister and deputy First Minister have not been in a position to progress the legislation necessary to implement the recommendations due to resource constraints and competing Ministerial and Departmental priorities.

1.4 The Northern Ireland Assembly’s Committee for the Office of the First Minister and deputy First Minister (the Committee) has considered the issue of reform of the Ombudsman, taking evidence from the current Ombudsman Dr Tom Frawley and his deputy, Mrs Marie Anderson on 2 June and 27 July 2010.

1.5 Accordingly a consultation exercise will be conducted and it will cover issues and recommendations from the 2004 review as well as other matters which take into account subsequent developments relating to ombudsman policy and practice in the UK, ROI and further afield.

Background

1.6 Before setting out the issues and questions that will be the subject of consultation, some further background information may be helpful on the ombudsman institution, the Ombudsman in Northern Ireland, the 2004 review and its recommendations and subsequent developments.

1.7 The first Ombudsman was established in Sweden in 1809. Its expansion was initially limited to other Scandinavian countries, Finland in the early years of the 20th century, and Denmark in the 1950s. Indeed it was the Danish version of the institution which prompted the interest of the UK legal reform group Justice, with a report recommending the introduction of the institution in 1961.⁴ New Zealand was the first common law country to adopt the institution in 1962 and in the UK it was established with the title of Parliamentary Commissioner for Administration in 1967.

1.8 In Swedish, the term ‘ombudsman’ means ‘agent’ or ‘authorised representative’ and the common core idea of an ombudsman is:

‘An official appointed to investigate complaints against public bodies, government departments or their servants and employees, who acts as an independent referee, without power of sanction or appeal, between individual citizens and their governments and its administration.⁵

1.9 The ombudsman institution as established in the UK and ROI falls into a category known as the ‘classical ombudsman’ with the key characteristics of an independent officer who is equipped with significant powers of investigation to deal with complaints of maladministration which have caused injustice, and to make recommendations for redress where a complaint is upheld.

1.10 In Northern Ireland the office of the Ombudsman was introduced before it was developed beyond Westminster, in the rest of UK and ROI. The first Northern Ireland Ombudsman established in 1969 only dealt with the departments of the devolved government at Stormont initially. A second office, the Northern Ireland Commissioner for Complaints, was established to consider complaints about local councils, health services and other bodies soon afterwards. In ROI when the Ombudsman legislation came into force in 1983 it included all government departments and a wide range of public bodies.⁶

1.11 There may be some confusion about terminology as the initial formal title of the Ombudsman was Commissioner. In ROI the institution was formally titled the Ombudsman from its inception, however, in Northern Ireland the former Parliamentary Commissioner for Administration for Northern Ireland was renamed the Assembly Ombudsman for Northern Ireland and in Scotland and Wales the title Public Services Ombudsman was used in legislation passed in 2002 and 2005 respectively.

1.12 The 2004 Review of the Office was commissioned following the changes implemented after reviews in England and devolution in Scotland and Wales, (that resulted in legislation passed in 2002 and 2005 respectively). A common key feature of the reviews was the creation of a single ombudsman office or ‘one-stop shop’ to deal with devolved services. Some matters have not been devolved and so some complaints, for example those about defence and HMRC, must be referred to the UK Parliamentary Ombudsman at Westminster.

1.13 There have continued to be developments in ombudsman policy, practice and legislation in Great Britain, and in Northern Ireland. Significantly in Northern Ireland, the devolution of policing and justice on 12 April 2010 has led to the Northern Ireland Ombudsman taking over from the UK Parliamentary Ombudsman the jurisdiction to deal with complaints in these areas (including complaints about the Department of Justice and its agencies such as the Northern Ireland Prison Service and the Northern Ireland Courts and Tribunals Service).

2. MERGER INTO A SINGLE OFFICE

PROPOSAL FOR A SINGLE OFFICE

2.1 The 2004 Review recommended that the two offices of AONI and NICC should be merged to create the single office of the Northern Ireland Public Services Ombudsman. It has been suggested that a merger would resolve the confusion which arises from the differences between the statutory arrangements over access for the public, jurisdictional coverage and ultimate remedy. For example, complaints to the AONI about Northern Ireland Executive departments and agencies must be referred by a MLA and the scope of grounds for complaints to the NICC about healthcare is wider as it includes decisions on clinical judgement. In the unusual event of a public body not implementing the Ombudsman’s recommendation for redress in an upheld complaint, the legislation for the NICC order allows the complainant to seek compensation in the county court. This is a unique provision in ombudsman legislation, which has not been used by a complainant in 26 years. It is further complicated because it does not apply to all bodies within the NICC’s jurisdiction, such as independent contractors who provide medical services including GPs, dentists and opticians. The Deloitte Review noted that the Ombudsman’s preferred option would be for the centrality of the Assembly’s role to be recognised in relation to any sanctions for non-compliance. This could be achieved in legislation merging the two offices by extending the AONI power to make a special report to all bodies in jurisdiction and the complete removal of the County Court mechanism. However Deloitte recommended that the Special Report option be extended to all bodies with the involvement of the court only retained in relation to local government bodies because of their elected status. This issue is explored further at section 8 of this paper. A merger would also facilitate the simplifying of (a) processes and (b) in raising awareness of the role of the Ombudsman to the general public.

2.2 The Ombudsman has indicated that the confusion around the two Offices adversely affects complainants as it can delay their access to the Ombudsman and a possible remedy and, more seriously, they may not proceed with a valid complaint which has caused them an injustice. There is also a difference in the perception of the two offices with some public bodies unaware that an Assembly Committee could require that body to appear before them as a result of a report by the NICC although it was recognised that this was possible in relation to the AONI.

2.3 The advantages which the merged offices in Scotland and Wales have brought means that where a person had reason to complain about different services provided by different bodies in relation to linked events it is not necessary to make separate complaints to two Ombudsman offices. For example, where a person has been ill and encountered problems with their health and social care (NICC) and with a claim for a social security benefit (AONI).

Questions

1. Would the people of Northern Ireland be more effectively served in the future if a single Ombudsman’s office is established, with powers to investigate complaints about government departments and public bodies in Northern Ireland?
2. If a merged office was created, should it be called the Northern Ireland Public Services Ombudsman OR the Public Services Ombudsman for Northern Ireland?

3. PURPOSE OF THE OFFICE

3.1 The template established in the UK’s Parliamentary Commissioner Act 1967, and applied in Northern Ireland, assumed that the purpose and role of the Ombudsman was to deal with complaints and that this would take the form of an investigation culminating in a report with recommendations. A person complaining about a public service must have exhausted the internal complaints procedure of the public body first before making a complaint to the Ombudsman.

3.2 The Committee considers this deficient in two respects. First it undervalued the role which the Ombudsman could play in improving public administration and, secondly, its narrow focus was a limited and inefficient method for resolving complaints.

3.3 Unlike the situation in ROI and in most other countries which have the ombudsman institution, neither the Ombudsman in Northern Ireland nor his counterparts in Great Britain, has a power to conduct an investigation or systemic review on his own initiative. The reason for conferring such a power is that the Ombudsman may have information that suggests there may be problems with a particular body, or type of service and it seems particularly limiting that intervention by the Ombudsman can only be triggered by a complaint. The impact of such an intervention might be recommendations that could have beneficial effects for a large number of people.

3.4 The Ombudsman has the potential not only to secure redress for those who have suffered injustice through maladministration but also to prevent recurrence and generally to assist in improving public administration. The 2004 Review suggested that a power to conduct a systemic review could be conferred upon the Ombudsman but subject to the condition that there must first be consultation with the Comptroller and Auditor General to avoid duplication. There is a shared interest in improving public administration between the two offices but they approach it from different perspectives and can bring about different outcomes, which in the Ombudsman’s case includes remedying injustice through resolution of complaints in individual cases as well as improving administration through systemic reviews.

3.5 Ombudsmen in the UK and ROI produce guidance on good administrative practice which covers matters derived from single investigations to the distillation of precepts and principles from a number of investigations and from research on investigations into particular topics and themes. Clearly therefore such guidance could inform how public authorities undertake their roles and meet their statutory responsibilities (see 7.6).

3.6 Another related Review recommendation was that the Ombudsman should undertake an audit on a sample basis of public sector complaint processes. Subsequently there have been developments in complaints-handling in both Northern Ireland and Great Britain which have progressed further than a simple auditing process. Guidance and or training on complaints-handling have been provided by the Ombudsmen in the UK. In 2009 the Ombudsman in Northern Ireland produced guidance on complaints-handling and is offering training using that guidance as a focus, to public bodies in handling complaints. In Scotland and Wales the Ombudsman has been given the role of ‘design authorities’ and the task of producing standardised complaints procedures for public bodies.

3.7 The complaint resolution process in the legislation not only allows for an investigation by the Ombudsman, but also for a settlement. The legislation in Scotland and, particularly in Wales, expressly confers a wide power to resolve complaints ranging from the formal investigation to an informal intervention which can include Ombudsman staff using the telephone as opposed to a letter or report (see paragraph 6.6 below).

Questions

3. Do you think that the Ombudsman should not only have the power to resolve complaints but should also seek to improve public administration as part of his/her work?
4. Should the Ombudsman have a power to conduct an investigation or systemic review on his/her own initiative given the overlap with other bodies ?
5. Do you want the Ombudsman to have the power to provide guidance on good administrative practice that public bodies would be required / expected to take into account?
6. Do you think that the Ombudsman should play a ‘design authority’ role in public sector complaints processes?

4. REMIT OF THE OFFICE

4.1 The remit or jurisdiction of the Ombudsman concerns the bodies and activities which may be the subject of scrutiny by the Ombudsman and this is within a particular framework.

Type of complaint

4.2 It is an established feature of the ombudsman model that a complaint is focused on the manner in which decisions and actions have been taken. The legislative term which covers this is maladministration. It is flexible and has deliberately not been defined in legislation so as to maximise its application. The sorts of administrative failings which it includes are:

• Avoidable delay in the handling of individuals’ applications, cases, etc;
• Faulty procedures or failing to follow correct procedures;
• Poor handling of complaints, or failure to inform the complainant about any rights of appeal;
• Unfairness, bias or prejudice in dealing with individuals;
• Providing misleading or inadequate advice;
• Refusing to provide information without good reason, or answer reasonable questions;
• Discourtesy, including failure to apologise properly for errors;
• Mistakes in handling claims;
• Not offering an adequate remedy where one is due;
• Reaching decisions either on the basis of irrelevant considerations or which are otherwise perverse.

4.3 Only if maladministration has been found may the actual substance of a decision be questioned by the Ombudsman. Although it is possible for the Ombudsman to find that a rule or policy is itself maladministrative where there has been evidence of injustice arising out of its application and for example there has been a failure to review the policy. It is not intended that the content of policy or the merits of a discretionary decision taken without maladministration should be within the jurisdiction of the Ombudsman.

4.4 The original Ombudsman’s office was created to fill a gap in the then existing arrangements for offering redress of people’s grievances with government departments and public bodies. Ordinarily, the complainant is first expected to raise the complaint with the body that caused the problem, and if there is alternative avenue of redress, then that should be pursued, unless the Ombudsman is of the view that it would be unreasonable to expect the complainant to resort to that alternative avenue.

4.5 The Committee considers that it is appropriate to continue to centre the work of the Ombudsman on the established concept of maladministration about the type of complaint but it does seek opinions on which bodies and activities should be within the Ombudsman’s remit.

Bodies

4.6 Those bodies currently within the Ombudsman’s remit are listed in Appendix 1. The 2004 Review supported the general principle that all organisations substantially funded from public monies should be within the Ombudsman’s jurisdiction unless specifically excluded. The Review identified the following bodies as those which appear to meet this criterion but were outside the current jurisdiction:

Assembly Commission
Northern Ireland Audit Office
Schools
Universities
Colleges of Further Education
General Teaching Council for Northern Ireland
Northern Ireland Higher Education Council
Northern Ireland Council for Integrated Education
Integrated Education Fund
Northen Ireland Water Council ⁷
Northern Ireland Economic Council ⁸
Drainage Council
Historic Buildings Council
Historic Monuments Council and
Armagh Observatory and Planetarium

4.7 Although the Review supported the general principle of receipt of ‘substantial’ public funds, the Committee considers that this principle may be too narrow as there are bodies and activities which are in receipt of some public funding (although not substantial) and it may be desirable that they be included in the Ombudsman’s jurisdiction. A recent example of an ombudsman acquiring jurisdiction of such bodies concerns privately arranged or funded adult social care which is now within the remit of the Local Government Ombudsman in England following the implementation/enactment of section 35 of the Health Act 2009.

4.8 The Committee wishes to consider if the broader principle of ‘following the public pound’ should be adopted in informing inclusion in the Ombudsman’s jurisdiction, and how this would be implemented in any new legislation. Currently bodies within jurisdiction are listed in a schedule to the legislation which is amended by the Department (OFMDFM). The alternative is to list those bodies exempted as is done with activities and matters not within remit. The Review raised the possibility of listing only exempted bodies but in commenting that bodies including the Equality Commission relied upon the designation in the Ombudsman legislation as a basis for defining bodies within their remit, it represented a transparent process which should be retained.

Activities & Matters

4.9 There are a range of activities and matters which are currently excluded from the AONI’s jurisdiction.

• the commencement or conduct of proceedings before a court of law;
• action taken by a member of staff of a tribunal so far as it is taken at the direction or authority of the person acting in the capacity as a member of the tribunal;
• action taken in respect of appointments, removals, pay, discipline, superannuation or other personnel matters in relation to the service in any office or employment under the Crown or under listed authority service in any office or employment or contract for service in respect of which powers to take action in personnel matters are determined or approved;
• actions relating to (certain) contractual matters or commercial transactions⁹.

4.10 This last exclusion does not exist in the NICC jurisdiction and therefore in merging the two offices consideration should be given to whether or not this difference should be removed. On the one hand, respect for the principle of freedom of contract would leave to the courts disputes about the award or the terms of a contract. On the other hand there is a need to ensure that in the award of a tender there are no administrative errors giving rise to injustice, such as delay in forwarding an application pack or bias in the composition of a tender panel¹⁰.

4.11 The Review proposed that one item should be added to this group of excluded matters - public sector grievance, discipline and employment matters.

4.12 The Ombudsman is unique in having jurisdiction of this matter in these islands. The reason it was included in the 1969 legislation was concern over religious and political discrimination. As such issues can be taken before the Industrial and Fair Employment Tribunals and the Equality Commission it is no longer appropriate for the Ombudsman to continue to have jurisdiction for public servants only when employees from the private and voluntary sectors are excluded from such recourse.

4.13 One possible change in the other direction concerns the exercise of professional judgement in social care. The exercise of clinical judgement in health care was brought within jurisdiction in 1997 and the Ombudsman has a panel of clinical advisers who assist with complaints relating to their particular areas of professional expertise. Section 11(2) of the Public Services Ombudsman (Wales) Act 2005, extends this jurisdiction so that it not only covers health but also social care. As health and social care in Northern Ireland are jointly delivered by Health and Social Care Trusts it seems appropriate that professional judgement in both health and social care should be within jurisdiction.

Questions

7. Should the broad principle of ‘following the public pound’ be the basis on which bodies will be included within the Ombudsman’s jurisdiction?
8. Is it necessary to list the bodies within the Ombudsman’s jurisdiction on the face of the legislation or could the list be made elsewhere? Should the Office of the First Minister and deputy First Minister have responsibility of maintaining an up to date list? If it is necessary to list the bodies within the Ombudsman jurisdiction in the legislation should the bodies listed at paragraph 4.6 be added to the list?
9. Do you think that public sector employment issues should be excluded from the Ombudsman’s jurisdiction?
10. Do you believe that professional judgement in social care should be included in the Ombudsman’s jurisdiction?

5. ACQUISITION OF CASES

5.1 The usual way in which the Ombudsman acquires cases is by the submission of a complaint from an individual who alleges that he or she has suffered injustice as a result of the action or inactions of a public body. The AONI and NICC legislation allow for the acceptance of a complaint from someone other than the ‘person aggrieved’ in defined circumstances¹¹. This section deals with (a) the requirements for submitting complaints, and (b) from whom they may be received and whether bodies within jurisdiction should be able to refer a case to the Ombudsman.

5.2 Currently complaints must be submitted in writing and also those for the AONI must be referred by a MLA. If it is agreed that the two Ombudsman offices should be merged then the requirements for submission of a complaint should be standardised. The Review recommended that the requirement of referral by a MLA for AONI cases (Northern Ireland Executive departments and their agencies) should be discontinued. This follows the precedent set in Scotland when the Scottish Ombudsman office was created. The research noted that complainants were confused and some did not pursue their complaints on being informed of the legislative requirement of referral by a MLA. The majority of those consulted in the Review were in favour of discontinuing sponsorship by MLAs.

5.3 In Northern Ireland referral by MLAs was transferred to the Northern Ireland Assembly from the UK Parliamentary Commissioner Act 1967. Referral has been criticised by successive UK parliamentary ombudsmen supported by the Public Administration Committee of the House of Commons to which that ombudsman reports, most recently in December 2009¹². The AONI and the UK ombudsman are members of a very small group of ombudsmen for whom sponsorship of complaints by an elected representative is a requirement. Importantly in Northern Ireland, complaints submitted to the Commissioner of Complaints do not require referral.

5.4. As the Review pointed out, removing the requirement of referral by MLAs did not mean removing MLAs from any involvement in complaints about public services. It would be open to the constituents to approach the Ombudsman indirectly through their MLAs if that was their wish. Also, if complainants wish to have their MLA involved, the Ombudsman is happy to facilitate that wish.

5.5 A restriction on submission which applies to all complaints to the Ombudsman is that they must be in writing. This restriction has been eased in Scotland and Wales (s.5 (2) Welsh Act) and in relation to the English Local Government Ombudsmen who have been given discretion permitting them to accept oral complaints.

5.6 The rationale supporting the requirement of submission of written complaints only is that it reduces the risk of receiving incomplete or incorrect information and reduces the scope for disagreement or misunderstanding between a complainant and the Ombudsman’s staff. On the other hand the requirement of submitting written complaints is a barrier to some people who have literacy problems, and because people are increasingly making contact with the Ombudsman using a free phone number rather than in writing.

5.7 Ombudsmen in ROI, Australia and New Zealand may all accept oral complaints. The question is where does the balance of convenience lie between increased accuracy through written complaints and increased access through oral complaints? Recent Omnibus surveys¹³ have shown a lower awareness about the Ombudsman amongst young people as compared with older age groups. Therefore in order to encourage use of the Ombudsman’s services by younger persons it may be necessary to examine different methods of submitting complaints.

5.8 The Ombudsman may accept a complaint from any individual or any body (whether incorporated or not) other than a body specified in the relevant NICC or AONI legislation. In simple terms one public body may not bring a complaint to the Ombudsman about another public body. The reasoning being that the legislation is aimed at providing redress for complaints from the public about public services. A complaint will not be accepted from someone other than the complainant in AONI and NICC legislation except in certain defined circumstances. Where the person has died or is unable to act for himself a complaint can be accepted from a personal representative or a member of his family or other individual ‘suitable’ to represent him. While both the AONI and NICC legislation allows for such representatives of a ‘person aggrieved’ to make a complaint on that person’s behalf, this provision is more restrictive than in the comparable Scottish and Welsh legislation (S.4 Welsh Act) which allows for any person authorised to act (there is no requirement of ‘suitable to act’) and so an equivalent change is sought.

5.9 In relation to complaints about health and social services bodies, NICC legislation allows for such a body to refer a complaint to the Ombudsman although it is not specific about the circumstances in which a body may decide to refer a complaint. In Scotland section 5(5) of the Scottish Public Services Ombudsman Act 2002, allows for a listed authority (a body within the Ombudsman’s remit) to refer a case to the Ombudsman where there had been a public allegation that injustice had been caused by maladministration on the listed authority’s part to one or more individuals and that the listed authority had unsuccessfully sought to resolve the matter.

Questions

11. Should the legislation ensure that complaints to the Ombudsman would not need to be referred by a MLA but would allow for complainants, if they wish to ask their MLA to refer a complaint on their behalf and to be involved?
12. Do you think that the person making the complaint should be able to choose to submit their complaints either orally or in writing and what means of submission should be available?
13. Should a definition be written in the legislation to specify that electronic submissions by email and website form and text messages may be used to submit a complaint?
14. Should the definition of a person’s aggrieved representative be amended to match that in the Scottish and Welsh legislation?
15. Should bodies within jurisdiction be able to refer a complaint to the Ombudsman and if so under what circumstances?

16 . In Scotland the Ombudsman legislation allows for a listed authority to refer a case to the Ombudsman where there had been a public allegation that injustice had been caused by maladministration on the listed authority’s part to one or more individuals and that the listed authority had unsuccessfully sought to resolve the matter. In Scotland if the Ombudsman was not satisfied that both of those conditions were met, the case would not be accepted. Should a similar provision be included in the new Northern Ireland legislation?

6. CASE HANDLING PROCEDURE

6.1 This section deals with the procedure for investigation and for resolving complaints.

6.2 The current legislation on the conduct of an investigation may be summarised

• where the Ombudsman proposes to investigate a complaint, he/she must give the body subject to investigation, or any person alleged to have taken or authorised the action complained of, the opportunity to comment on any allegations in the complaint;
• the investigation must be conducted in private but otherwise the procedures are to be whatever the Ombudsman considers appropriate in the circumstances of the case. In particular, the Ombudsman may obtain information from any person and make such inquiries as he/she thinks fit; and may determine whether any person may be legally or otherwise represented in the investigation;
• if he/she thinks fit, the Ombudsman may pay expenses or allowances by way of compensation for lost time, to the complainant and any other person who attends or supplies information for the purposes of an investigation;
• the conduct of an investigation does not affect any action taken by the authority or body concerned or any power or duty of that authority to take further action in relation to the matter under investigation.

6.3 If during the course of the investigation it appears to the Ombudsman under the NICC legislation that there may be grounds for making any report or recommendation that may adversely affect any body or person, then the Ombudsman may give that body or person the opportunity of being examined by his own legal representative and of having tested by way of cross-examination any evidence which may affect it or him. These opportunities may also be offered to the complainant if that person is not likely to be adversely affected by any report or recommendation. There is no equivalent provision in the legislation for the AONI or any other ombudsman in the UK or Ireland. It is proposed that a new provision should be included for the merged office to the effect that where the Ombudsman is minded to make an adverse comment about a person in a report, then that person should be given the opportunity to make submissions about the proposed comment and, if after those submissions the Ombudsman still proposes to make an adverse comment, then the Ombudsman must ensure that the person’s defence is fairly stated in the report. This is modelled on a State of Queensland provision¹⁴.

6.4 The Ombudsman has the powers of the High Court in requiring evidence¹⁵ and where the Ombudsman or his staff are obstructed without lawful excuse, then this may be certified to the High Court to be dealt with as if it were an offence committed against the court¹⁶ .

6.5 It is proposed to add to these provisions a power similar to that in the Welsh legislation, enabling the Ombudsman who thinks a person may be able to provide information or produce a document also to provide any facility which the Ombudsman may reasonably require. An example of which could be when at that person’s premises to use a photocopier.

6.6 The existing legislation empowers the Ombudsman to effect a settlement of the complaint. The Review recommended that mediation training might be given to the Ombudsman’s staff to facilitate the early resolution of complaints. As mentioned earlier in paragraph 3.7, it is proposed that a wider power, equivalent to section 3 of the Public Services Ombudsman (Wales) Act 2005 be conferred which would authorise the taking of any action to resolve a complaint, and this action could be instead of, or in addition to, conducting an investigation.

6.7 It is proposed that the Ombudsman be authorised to co-operate with other Ombudsmen in the UK and ROI (the Ombudsman’s jurisdiction extends to North South bodies) when it appears to him that a matter or case investigation could be the subject of an investigation by that other Ombudsman.

Questions

17. Should the existing powers in relation to the conduct of an investigation by an Ombudsman be continued? Should additional power enabling the Ombudsman to require the provision of any facility from a person who may be able to provide information or produce a document be included in the legislation?
18. Should a person about whom an adverse comment might be made in an Ombudsman’s report have the opportunity to make representations on the proposed comments and if such an adverse comment remains in the Report, that the person’s representations are fairly included?
19. Do you want the Ombudsman to have the power to take any action needed to resolve a complaint in addition to, or instead of conducting an investigation?
20. Do you think that the Ombudsman should be authorised to co-operate with other Ombudsmen in the UK and Ireland in matters which overlap their jurisdictions?

7. REPORTING BY THE OMBUDSMAN

7.1 Currently if an investigation is completed then a report is made to the complainant, to the body concerned, and any person alleged to have taken or authorised the action complained of, or is otherwise involved in the complaint’s allegations. It is the Ombudsman practice to inform a public body when a complaint is not investigated and the reasons for this, the Committee considers that this may be informative and considers this should be replicated in the new legislation.

7.2 It is proposed to modify these provisions along the lines of those to be found in the Welsh legislation. These provisions make arrangements about who is to receive a report. Sections 17 to 23 of the Public Services Ombudsman (Wales) Act 2005, deal with requirements of Welsh public bodies to publicise reports and action to be taken on receipt of a report. A public body must make arrangements within specified timescales for publicising the report in a local newspaper enabling members of the public to have access to copies and to make copies of the report at a reasonable charge. The report must also be available on the body’s website. It is an offence for any person wilfully to obstruct a member of the public in the exercise of these rights. There is also a duty on Welsh public bodies under that legislation for the body to consider the report and notify the Ombudsman what action it has taken or proposes to take. There is also provision for an alternative procedure under which reports are not published where (a) no injustice or hardship is found, or (b) where the complaint is upheld but the body agrees to implement the Ombudsman’s recommendations within a specified period and (c) the Ombudsman is satisfied that there is no public interest in following the usual publication arrangements. Given the increased transparency and accessibility of the Welsh reporting procedures, the Committee is of the view that the Welsh approach should be considered as part of the consultation process.

7.3 In this section we deal with provisions concerning the reports which the Ombudsman may make. No change is proposed in the standard provisions in Ombudsman legislation which confer absolute privilege on the publication of any matter authorised or required to be published under the legislation providing protection against defamation. In NICC legislation the privilege attaches to the publication by the Commissioner or his officers and in AONI legislation this privilege extends to the publication by a MLA to the person by whom the complaint was made.

7.4 The identity of the complainant is always withheld by the Ombudsman in his annual report and in relation to other persons mentioned in the report is not given unless the Ombudsman feels it is in the public interest to do so having regard to obligations under the Data Protection Act 1998.

7.5 The Ombudsman should make an Annual Report and be entitled to make other reports on matters relating to the discharge of his functions in such a format and at such frequency as the circumstances may require.

7.6 As referred to in paragraph 3.5 the Ombudsman should be entitled to issue reports on good administrative practice (see question 5 above).

Disclosure of Information

7.7 The Ombudsman is prevented from disclosing information obtained by him or his officers for the purposes of his investigation or any report made by him except in certain limited circumstances¹⁷. This is a statutory bar to disclosure and such information is exempt under Freedom of Information legislation. The Ombudsman can share information in only two further very limited circumstances one of which relates to disclosures to the Information Commissioner for the purposes of complaints about breaches of the Data Protection Act 1998, the Freedom of Information Act 2000 and the Environmental Information Regulations 2004¹⁸. There is an equivalent provision in the Freedom of Information Act 2000¹⁹ allowing the Information Commissioner to share information with the Ombudsman. The other circumstance which also permits information sharing is in the NICC legislation as a result of which the Ombudsman can disclose information to the effect that a person is likely to constitute a threat to the health or safety of any other person. The Ombudsman has a broad discretion to disclose to any person to whom he thinks it should be disclosed in the interests of the health or safety of any person and a person to whom a disclosure may be made may be a regulatory body. This information sharing gateway has been only used on two separate occasions by the current Ombudsman by way of disclosure of information to the General Medical Council in respect of the conduct of clinicians. This information sharing provision is similar to section 26 of the Public Services Ombudsman (Wales) Act 2005 but that legislation does allow for disclosure on health or safety grounds to persons whom the Ombudsman thinks it should be disclosed in the ‘public interest’.

7.8 The Ombudsman would seek to co-operate with other public sector Ombudsman in the UK and ROI and with the C&AG in relation to specific investigations or indeed systemic investigations. If these powers were granted in the proposed legislation then it would be necessary to include an information sharing power for the Ombudsman similar to that enjoyed with the Information Commissioner.

Questions

21. Do you think the proposals on the arrangements for the making of and publicising of reports are sufficient?
22. Do you have any views on the proposals for the alternative arrangements in which there would be no (published) report as in the Welsh model?
23. Should the Ombudsman be able to make annual reports and other reports on the discharge of functions in such manner and in such frequency as he/she thinks fit?
24. Should the Ombudsman be able to share information with other Ombudsman in the UK and ROI and also that the equivalent Welsh provisions relating to cases involving health or safety be adopted?
25. Should the Ombudsman have a power to share information for health and safety and that it should be broadened as indicated at 7.8 above?

8. ENFORCEMENT

8.1 Where a complaint is upheld, normally the body accepts and implements the Ombudsman’s recommendations. Ombudsmen generally do not have power to enforce these recommendations; their power lies in moral suasion. Currently there is a difference between the AONI and NICC legislation. Under the NICC provisions it is possible for the complainant to seek an award of damages in the county court where the body has not remedied the injustice. It is also open to the court to make a direction requiring the body to take action or to refrain from taking certain action.

8.2 This provision has not been used by a complainant in some 26 years and is unique²⁰. It was initially introduced in 1969 due to concerns over political and religious discrimination in local government employment and housing. The normal position where an Ombudsman is satisfied that injustice has not or will not be remedied to his satisfaction, is to make a special report and usually the publicity associated with such a special report adds to political and public pressure so that the matter is resolved to the Ombudsman’s satisfaction. This is the position under the AONI legislation where a special report can be laid before the Assembly. This is the situation in the unified Ombudsman offices in Scotland and Wales, where the report is published to the Parliament and Assembly respectively and there are also powers for providing the report to others and publicising it. This special report authority has not been exercised by either the Scottish²¹ or Welsh²² Ombudsmen to date.

8.3 As the authority of and respect for the Ombudsman’s findings and recommendations has not been challenged, it is not considered necessary or appropriate to retain the provision in the NICC legislation to allow complainants to seek a remedy in the county court when the body has not implemented the Ombudsman’s recommendations for remedying injustice caused by maladministration. The Ombudsman should be empowered in every case to make and publicise a special report, including publication to the Assembly, when satisfied that injustice found in a reported investigation had not or would not be remedied.

Questions

26. Should the Ombudsman make and publicise a special report to deal with the situation where the Ombudsman is not satisfied with a body’s response to his recommendations on redress following a finding of maladministration that has caused injustice?
27. Should the mechanism for allowing a complainant to seek compensation in the County Court where a body had failed to implement a recommendation of the Ombudsman be (a) removed completely or (b) retained only in relation to local government bodies?

9. APPOINTMENT OF THE OMBUDSMAN

9.1 The Review recommended that the Ombudsman should continue to be appointed by the Queen following a resolution by the Assembly. The tenure would be for a five year term but there could be reappointment.

9.2 One proposal is that the Assembly could nominate a candidate for appointment following an appointment process held under the auspices of the Assembly Commission and that this should be in a resolution supported by two thirds of the MLAs voting.

9.3 The practice on tenure has changed in the UK from one in which it could extend until retirement age, to a fixed term but with eligibility for reappointment, to a single fixed term. The rationale underlying this is that it secures an appropriate balance between the independence and accountability of the Ombudsman. The proposed length of the single fixed term is seven years which is longer than the four year term of the Assembly and allows for one full Assembly term after appointment of a new Ombudsman and an additional three years in respect of a new Assembly.

Questions

28. What do you think about the proposed appointment process? Are there any other conditions you would like to see?
29. Should the Ombudsman be appointed for a single fixed term of seven years or what length of term should it be?

10. STAFFING & FINANCE

10.1. Currently the majority of the Ombudsman’s staff are seconded for periods of up to three years from the Northern Ireland Civil Service and the wider public service. The Review noted that the staff felt that the fact that they were seconded civil servants in no way compromised the independence of the Office and this was accepted by the stakeholders who were consulted. However, the Ombudsman considers that the increase in the number of health related complaints and recent extensions to jurisdiction arsing from devolution of justice have necessitated a fresh look at how the office is staffed particularly at senior management level.

10.2 The Review recommended the development of a human resource strategy and enhanced equality and diversity programmes. The Committee considers that in small to medium sized organisations such as the Ombudsman’s office there is a need to retain the secondment option while combining it with an option for direct employment so as to ensure maximum diversity, equality of opportunity and flexibility in the workforce.

10.3 The Ombudsman would wish to have explicit authority to be able to obtain advice from any person and to pay a reasonable fee for such advice. This would cover investigations where specialist expertise is relevant and other circumstances including the seeking of legal advice.

10.4 The financing of the office of the Ombudsman should continue to be by grant (out of the Consolidated Fund) approved by Assembly vote.

10.5 In AONI and CCNI legislation the salary of the Ombudsman is set annually by Order based on recommendations by the Department of Finance and Personnel. The Review concluded that the Ombudsman’s salary linkage to the Senior Civil Service was inappropriate and recommended linkage to judicial scales. The Review recommended a review of this salary arrangement.

10.6 There should continue to be authority for delegation of functions by the Ombudsman to one of his officers, the retention of a deputy post and a mechanism for the appointment of an acting Ombudsman.

Questions

30. Should the Ombudsman be able to employ staff directly to his/her Office and also to provide for secondment in his Human Resources Strategy?
31. Should the current link with the judicial salary scale be maintained?

11. GOVERNANCE & ACCOUNTABILITY

11.1 The Review recommended that the Ombudsman should continue to be an officer of the Assembly and to have arrangements similar to those of the Comptroller and Auditor General who appears before the Assembly’s Audit Committee to give an account in relation to his performance, resources and salary.

11.2 Potential committees who could scrutinise the work of the Ombudsman include the Audit Committee or the Committee for the Office of the First Minister and deputy First Minister. Some adaptations would need to be made in both cases. While the OFMDFM Committee oversees a particular department, this department has a wide remit.

11.3 It is likely that other statutory committees would wish the Ombudsman to appear before them, for example the Committee for Health, Social Services and Public Safety, the Committee for Justice, the Committee for Social Development and the Committee for the Environment all oversee departments whose work will form a large part of the Ombudsman’s case load. The Committee for Justice will be interested in the Ombudsman’s perspective on the working of the administrative justice system. It is possible that appearances before Assembly committees could take up a lot of the Ombudsman’s time and it will therefore be a matter for the committees working through their chairs, to ensure effective co-ordination of Ombudsman’s attendance at committees.

Questions

32. Should there be arrangements for the Ombudsman to appear before a Committee of the Assembly to give an account in relation to his performance, resources and salary?

12. OTHER ISSUES

12.1 Currently the Ombudsman is unable to consider cases where the person aggrieved has or had a right of appeal, complaint, reference or review to or before a tribunal or any action in respect of which a person aggrieved has or had a remedy by way of legal proceedings. He may conduct an investigation notwithstanding that such a remedy exists only where he considers it was not reasonable to expect the person to have resort to or have resorted to that alternative remedy. The Law Commission of England and Wales and leading academics in this area have debated the removal of this statutory bar in Public Sector Ombudsman legislation. The Ombudsman considers that given developments in the wider system of administrative justice that in new legislation the Ombudsman should have the power to accept any complaint of maladministration about a body in jurisdiction but to direct a complainant to an alternative form of remedy such as the courts where it appears that body is able to provide a more appropriate and proportionate remedy.

12.2 Obtaining Advice – Although not part of the Review recommendations, the Ombudsman would welcome specific powers to obtain advice from any person who in his opinion is qualified to give it and to assist in the discharge of any of his functions.

12.3 Local Government Standards – the Review recommended that as in Wales breaches of the Local Government Statutory Code of Conduct for elected representatives in local authorities be investigated by the Ombudsman. This change is being enacted in draft local government legislation which is under consideration by the Executive. Although the exact timetable for commencement of the relevant local government legislation is uncertain, the Committee notes this development.

12.4 Given the current economic climate and pressures on public funds it is essential that there is no duplication of roles on the part of ombudsmen and commissioners in Northern Ireland. There is a potential for creating an ombudsman model which is sufficiently flexible to undertake other responsibilities which must however be consistent with the core purpose of the office in order to achieve maximum value for the public purse.

13. NEXT STEPS

13.1 Comments are welcomed on the questions posed in this consultation paper and on other points relevant to the reform and updating of the Ombudsman’s legislation. The consultation questions are grouped together below.

13.2 Any organisation or individual with an interest in this issue is invited to submit written evidence on the proposals by answering the questions raised in the consultation document.

Written evidence should be sent to the Committee by e-mail to committee.ofmdfm@niassembly.gov.uk or by post to the address below:

The Clerk to the Committee
Room 404
Parliament Buildings
Ballymiscaw
Belfast BT4 3XX

Further copies of the consultation paper can be obtained from the website: http://bit.ly/reformniombudsman

13.3 If you do not have access to internet or e-mail facilities or you have any other enquiries please contact the Committee office on (028) 9052 1904.

Closing date for submissions is noon Friday 17 December 2010.

13.4 Written evidence submitted to the Committee should be kept confidential until published by the Committee. However, w itnesses should be aware that if they decide to publish the evidence that they provide to the committee, the publication would not be covered by Assembly privilege in relation to the law of defamation. Witnesses who nevertheless decide to publish their evidence should provide the Committee with advance notice of their intentions.

13.5 Unless indicated otherwise it will be assumed that those submitting written evidence have no objections to it being made public by the Committee. Written evidence submitted will usually be made public by the Committee at the end of the consultation, by publication or other means.

13.6 Those submitting written evidence should indicate if they wish to be considered to give oral evidence to the committee.

List of Consultation Questions

1. Would the people of Northern Ireland be more effectively served in the future if a single Ombudsman’s office is established, with powers to investigate complaints about government departments and public bodies in Northern Ireland?
2. If a merged office was created, should it be called the Northern Ireland Public Services Ombudsman OR the Public Services Ombudsman for Northern Ireland?
3. Do you think that the Ombudsman should not only have the power to resolve complaints but should also seek to improve public administration as part of his/her work?
4. Should the Ombudsman have a power to conduct an investigation or systemic review on his/her own initiative given the overlap with other bodies ?
5. Do you want the Ombudsman to have the power to provide guidance on good administrative practice that public bodies would be required/expected to take into account?
6. Do you think that the Ombudsman should play a ‘design authority’ role in public sector complaints processes?
7. Should the broad principle of ‘following the public pound’ be the basis on which bodies will be included within the Ombudsman’s jurisdiction?
8. Is it necessary to list the bodies within the Ombudsman’s jurisdiction on the face of the legislation or could the list be made elsewhere? Should the Office of the First Minister and deputy First Minister have responsibility of maintaining an up to date list? If it is necessary to list the bodies within the Ombudsman’s jurisdiction in the legislation should the bodies listed at paragraph 4.6 be added to the list?
9. Do you think that public sector employment issues should be excluded from the Ombudsman’s jurisdiction?
10. Do you believe that professional judgement in social care should be included in the Ombudsman’s jurisdiction?
11. Should the legislation ensure that complaints to the Ombudsman would not need to be referred by a MLA but would allow for complainants, if they wish, to ask their MLA to refer a complaint on their behalf and to be involved?
12. Do you think that the person making the complaint should be able to choose to submit their complaints either orally or in writing and what means of submission should be available?
13. Should a definition be written in the legislation to specify that electronic submissions by email and website form and text messages may be used to submit a complaint?
14. Should the definition of a person’s aggrieved representative be amended to match that in the Scottish and Welsh legislation?
15. Should bodies within jurisdiction be able to refer a complaint to the Ombudsman and if so under what circumstances?
16. In Scotland the Ombudsman legislation allows for a listed authority to refer a case to the Ombudsman where there had been a public allegation that injustice had been caused by maladministration on the listed authority’s part to one or more individuals and that the listed authority had unsuccessfully sought to resolve the matter. In Scotland if the Ombudsman was not satisfied that both of those conditions were met, the case would not be accepted. Should a similar provision be included in the new Northern Ireland legislation?
17. Should the existing powers in relation to the conduct of an investigation by an Ombudsman be continued? Should additional power enabling the Ombudsman to require the provision of any facility from a person who may be able to provide information or produce a document be included in the legislation?
18. Should a person about whom an adverse comment might be made in an Ombudsman’s report have the opportunity to make representations on the proposed comments and if such an adverse comment remains in the Report, that the person’s representations are fairly included?
19. Do you want the Ombudsman to have the power to take any action needed to resolve a complaint in addition to, or instead of conducting an investigation?
20. Do you think that the Ombudsman should be authorised to co-operate with other Ombudsmen in the UK and Ireland in matters which overlap their jurisdictions?
21. Do you think the proposals on the arrangements for the making of and publicising of reports are sufficient?
22. Do you have any views on the proposals for the alternative arrangements in which there would be no (published) report as in the Welsh model?
23. Should the Ombudsman be able to make annual reports and other reports on the discharge of functions in such manner and in such frequency as he/she thinks fit?
24. Should the Ombudsman be able to share information with other Ombudsman in the UK and ROI and also that the equivalent Welsh provisions relating to cases involving health or safety be adopted?
25. Should the Ombudsman have a power to share information for health and safety and that it should be broadened as indicated at 7.8 above?
26. Should the Ombudsman make and publicise a special report to deal with the situation where the Ombudsman is not satisfied with a body’s response to his recommendations on redress following a finding of maladministration that has caused injustice?
27. Should the mechanism for allowing a complainant to seek compensation in the County Court where a body had failed to implement a recommendation of the Ombudsman be (a) removed completely or (b) retained only in relation to local government bodies?
28. What do you think about the proposed appointment process? Are there any other conditions you would like to see?
29. Should the Ombudsman be appointed for a single fixed term of seven years or what length of term should it be?
30. Should the Ombudsman be able to employ staff directly to his Office and also to provide for secondment in his/her Human Resources Strategy?
31. Should the current link with the judicial salary scale be maintained?
32. Should there be arrangements for the Ombudsman to appear before a Committee of the Assembly to give an account in relation to his performance, resources and salary?

Footnotes

¹ Established by the Parliamentary Commissioner Act (Northern Ireland) 1969 see Ombudsman (Northern Ireland) Order 1996.

² Established by the Commissioner for Complaints Act (Northern Ireland) 1969 see Commissioner for Complaints (Northern Ireland) Order 1996.

³ Deloitte MCS Ltd., Review of the Offices of the Assembly Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints, (Office of the First and Deputy First Minister, 2004).

⁴ Justice, The Citizen and the Administration: The Redress of Grievances (chair Sir John Whyatt), (Stevens, 1961).

⁵ R. Gregory & P Giddings ‘The Ombudsman Institution: ,Growth and Development’ in R. Gregory & P. Giddings, Righting Wrongs: The Ombudsman in Six Continents, (2000), p.2

⁶ The Ombudsman Act 1980

⁷ This body has been abolished/now forms part of another organisation.

⁸ Ibid

⁹ Paragraph 5(2) of Schedule 4 of the Ombudsman (NI) Order 1996 exempts from this statutory bar ‘transactions for or relating to the acquisition of land compulsorily or in circumstances in which it could be acquired compulsorily; or the disposal as surplus land acquired compulsorily or in circumstances in which it could have been acquired compulsorily ‘.

¹⁰ Case No 2006/00308

¹¹ See article 11 of the Assembly Ombudsman (NI) Order 1996 and article 10 of the Commissioner for Complaints (NI) Order 1996.

¹² Public Administration Select Committee, 2009, Parliament and the Ombudsman, HC 107 of 2009-10, (The Stationery Office).

¹³ NISRA Omnibus Survey September 2009 and January 2010

¹⁴ Section 55 of the Ombudsman Act 2001.

¹⁵ See article 14 Ombudsman (NI) Order 1996

¹⁶ See article 15 Ombudsman (NI) Order 1996

¹⁷ Article 19 of the Ombudsman (Northern Ireland) Order 1996 and article 21 of the Commissioner for Complaints (Northern IrelandI) Order 1996. These purposes are for any proceedings for an offence under the Official Secrets Acts 1911- 1989; any proceedings in relation to the offence of perjury; an enquiry with a view to the taking of proceedings of these and any proceedings by the Ombudsman for obstruction or contempt.

¹⁸ See section 44 of FOI Act; Article 19A of the Assembly Ombudsman (NI) Order 1996 and article 21A of the Commissioner for Complaints (NI) Order 1996 as inserted by section 76(2) of the Freedom of Information Act 2000 and schedule 7 paragraphs 9 and 10.

¹⁹ Section 76(1) of the Freedom of Information Act 2000

²⁰ Mary Seneviratne considers this point in her publication Ombudsmen – Public Services and Administrative Justice (2002) Butterworths, p.247 and comments that the majority of the 30 actions brought by complainants have related to employment issues at paragraph. 4.11.

²¹ Section 16 Scottish Public Services Ombudsman Act 2012

²² Section 22 and 23 of Public Sector Ombudsman (Wales) Act 2005

APPENDIX 1

BODIES CURRENTLY WITHIN JURISDICTION