The purpose of the Ombudsman should be to redress the balance of power between the state and the rights of the citizen. A mechanism for citizens to hold government and public bodies to account, which can offer remedy and compensation in cases of maladministration. But you need to bear in mind that in the UK the ‘The Parliamentary Commissioner’ was brought in following the forced resignation of a minister caught in a scandal. The Commissioner now the Ombudsman has been protecting ministers, MPs and public servants ever since. In 2016/17 the uphold rate for parliamentary cases was just 2.9% of the total submitted. When NHS cases are included the uphold rate rises to 4.7% of all cases presented. Those figures tell their own story.
Calls for an Ombudsman service date back to 1954 and the Crichel Down affair. A scandal over the misuse of land appropriated during the war which resulted in the resignation of a minister. The position of Commissioner was finally created by the Parliamentary Commissioner Act 1967 which set out the role and limitations of the Ombudsman’s office.
The Parliamentary Commissioner Act 1967 – This act is the cornerstone of the present Ombudsman service. Key points established under the act are:
- The Ombudsman is independent of government and the civil service.
- The Ombudsman has complete discretion as to whether to investigate a case or not.
- All parliamentary complaints should be made first to a Member of Parliament.
- The terms ‘maladministration’ and ‘injustice’ are not defined by the act and are therefore open to interpretation by the Ombudsman.
- The Ombudsman must not investigate if the individual has the right of appeal or the opportunity of remedy through a tribunal or court action. (Ombudsman can use discretion here.)
- The complaint must be made to the individual’s Member of Parliament no later than 12 months after the date of the grievance. (Ombudsman can use discretion here.)
- The Ombudsman must afford the officer of the government body concerned the opportunity to comment, but has total discretion concerning how it gathers evidence.
- The Ombudsman has the power of the high court in relation to requesting documentation and the examination of witnesses including members of parliament and the crown.
- The Ombudsman must consult with other Ombudsman services if they are of the opinion that the matter concerns them.
- The Ombudsman is accountable to Parliament and must submit annual reports.
The Parliamentary Ombudsman also monitors health service complaints in the role of the Health Commissioner following the Health Service Commissioners Act of 1993 wiki/Health_Service_Commissioners_Act_1993 This situation was formalised with the new name of ‘Parliamentary and Health Service Ombudsman’ (PHSO). Health service complainants have direct access to the Ombudsman and are not required to put their case forward through an MP. Following the demise of the Healthcare Commission in 2009, the Health Service Ombudsman was the only body charged with investigating individual complaints. wiki/Healthcare_Commission However, NHS England do investigate some serious cases and write reports but bear in mind that this is one arm of the NHS investigating another. NHS England reports Since April 2017 the new Healthcare Safety Investigation Branch (HSIB) will be able to investigate approximately 30 serious NHS cases a year. hsib.org.uk
Approximately two-thirds of complaints to PHSO are related to the NHS and one-third are parliamentary. In April 2017 Rob Behrens CBE became the new Ombudsman taking over from Dame Julie Mellor who resigned in July 2016 following something of a scandal. health-watchdog-resigns-following-handling-of-sexual-abuse-cover/
Accountability Governments are responsible for policy-making and there is a direct link between policy decisions and the quality of services received. The Ombudsman stands between the complainant and the decision makers who have caused harm in a supposedly ‘independent’ role. The Ombudsman is not accountable to the government but in theory is accountable to parliament through annual reports and the scrutiny of a select committee. Prior to 2015 the Ombudsman was monitored by the Public Administration Select Committee (PASC) made up of cross-party members, who in 2015 changed their name to Public Administration and Constitutional Affairs Committee (PACAC) to reflect their changing role. PACAC
The select committee is primarily there to help the Ombudsman disseminate report findings to relevant government bodies. In this respect, they assist the work of the Ombudsman in holding the government to account. They also have a scrutiny role which is in conflict with their supportive function. The reality is that PHSO is largely unaccountable to parliament given that PACAC cannot scrutinise individual cases, which is the core work of the Ombudsman’s office.
PHSO is independent of members of Parliament and Civil Servants, which means that your MP has very limited opportunity to intervene on your behalf. Decisions made by the Ombudsman are held to account only by Judicial Review This situation was clarified by the courts in 1993. Since that time there has only been one successful case against PHSO which is ‘Parliamentary Commissioner for Administration V exparte Balchin 1996 and this case ran for over 20 years. regina-v-parliamentary-commissioner-for-administration-ex-parte-balchin-admn-25-oct-1996
Effectively the Ombudsman is unaccountable to the public through either direct complaint as these are all handled internally by PHSO themselves or by parliamentary scrutiny or by access to the law.
If you are going to set up a trash can for all the toxic waste of
poor government processes then you need to fit a tight lid!
Read The Democracy Game to find out more about the role played by PHSO in maintaining public confidence.