A review of the (lack of) progress in Ombudsman reform.
by Della Reynolds Co-ordinator of the PHSO Pressure Group
For the first time in 48 years there is an opportunity to reform the Ombudsman service. Oliver Letwin and the Cabinet Office are currently compiling draft legislation to lay before the house in the spring of 2016. At this point the debate opens and it has been made clear from the many words written on this subject (not all recorded here) that there is great public concern which is shared by parliamentarians who have been anxious for some time to reform this key pillar of democracy.
When the public and parliament are in agreement then great things are possible. If we work together we can ensure that in 2016 the new Public Service Ombudsman has the statutory powers to drive reform plus the clarity of responsibility to be held to account if it fails to do so.
Life was breathed into the Parliamentary Ombudsman via the controversial Parliamentary Commissioner Bill of 1967. Before parliament or the Lords were given time to debate the merits of the legislation, those in ‘another place’ had gone ahead and set up the office, hoping for a rubber stamp passage through both houses. Not an auspicious start. According to Lord Harlech speaking in the House of Lords, the primary purpose of the legislation was as follows;
“It seeks to redress the balance of power between the Government and the governed in the latter’s favour;
It was hoped that the Ombudsman would provide citizens with redress and a means of holding the government to account. However, steps were taken in that other place to ensure that the power of Government would not be unduly concerned by this new investigative body; as described so eloquently by Lord Harlech below.
“But, my Lords, let us look for a moment at those Departments listed in Schedule 2 which do have a more direct and frequent impact on the lives of the general public. To what extent does the Bill provide a means of redress of grievance by the general public? It seems to me that it would depend very much on how we define and interpret the word “maladministration”. I think that the noble and learned Lord conceded that this was a point of difficulty. Certainly this was a point which gave rise to long debate in another place without, it seemed to me, anyone being very much wiser at the end of it. Speaking for myself, I should be immensely grateful if we could be given, first, a simple example of a grievance likely to be submitted by an individual for investigation by the Parliamentary Commissioner; secondly, an explanation as to in what respect the action complained of might be due to maladministration and, thirdly, even if it was due to maladministration, how it could be determined that this was not due to the exercise of a discretion vested in the department or authority”. I have taken those words, of course, from Clause 5(4) a subsection which, as the noble and learned Lord said, was inserted by the Government at a late stage in the passage of the Bill through another place, and which seems to me to give the Bureaucracy a loophole as large as the Round Tower of Windsor. If it is not the case, I, for one, should be most grateful to have it explained to me.”
The failure to determine a definition of maladministration and the total discretion given to the Commissioner (later Ombudsman) in this act did indeed provided a loophole as large as the Round Tower of Windsor which has served to protect the balance of power in the government’s favour ever since. The Ombudsman was also given no powers of enforcement and no statutory responsibility to monitor improvements following investigation uphold.
Equally, Quintin Hogg leading for the Conservatives on the Ombudsman legislation of 1967 referred to it as a
“swiz”: “We on this side always knew that the whole thing was a swiz, but that was not spelt into the Bill. It did not
write down in so many words in a schedule, “this is a swiz”….The bill was always drafted to be a swiz, and now it is
spelt into the bill.”
Flawed from the outset, nevertheless this legislation has stayed largely untouched for the last 48 years. Not to say that the subject hasn’t come up for discussion. There have been a great many words spoken and recorded regarding the shortcomings of the Ombudsman service, but for all the good intentions, action has been thin on the ground. Lord Lester, in one such debate (January 2000) put forward the notion that, “Of course it is convenient for Ministers to have a rusty machine that takes a long time and does not deal very effectively with citizens’ complaints.” hansard
This fruitless process was well documented in 2003 by PASC, (the Public Administration Select Committee set up to scrutinize the Ombudsman service) in the hope of reigniting the debate.
The Review of the Public Sector Ombudsmen—A History of Delay
4. In 1996 our predecessors, the Select Committee on the Parliamentary Commissioner for Administration recommended “the thorough revision of the  Act to remove the omissions in the Ombudsman’s current jurisdiction, to implement the past recommendations of the Committee on the extension of his jurisdiction, and to ensure that the Ombudsman has comprehensive and effective powers”. Despite numerous reviews and consultations and general agreement on both the need for reform and on the basis for the necessary changes, the Ombudsmen system has not been reformed. We set out below the whole series of events. It is a roll-call of talk rather than action.
The Timetable of Events
- 1996 Select Committee on the Parliamentary Commissioner for Administration recommend review of the Ombudsman.
- October 1998 the public sector ombudsmen submit a paper to Government proposing a comprehensive review of the organisation of the public sector ombudsmen in England.
- April 2000‘Review of the Public Sector Ombudsmen in England‘, or the Collcutt Report, published.
- June 2000 the Government publish a consultation document.
- August 2000 Public Administration Select Committee publishes its report ‘Review of the Public Sector Ombudsmen in England’
- July 2001 Government respond by way of a written Parliamentary Question agreeing with the review’s recommendations and announcing that detailed proposals would be published in due course.
- January 2002 Memorandum from the Government to the Public Administration Select Committee announcing that it will be undertaking a further consultation exercise.
2000 was the ‘nearly year’ with Collcutt producing a very comprehensive report calling for the following reforms.
- In line with the Ombudsman themselves, Collcutt called for a single commission with a common gateway for improved access to Ombudsman services.
- Collcutt also determined that the MP filter was obsolete and should be replaced with direct access.
- That the powers of the Ombudsman be strengthened in order to meet the needs of increasingly complex casework and the growing demand for resolution from the public.
The government responded to this report in broad agreement and concluded that the Ombudsman should be able to work in a more flexible manner than that allowed by the present legislation making the successful resolution of complaints possible using informal methods such as mediation. However the need to change primary legislation led to interminable delay.
The Collcutt Review—a prospect of progress
” In 1999 a review based upon the ombudsmen paper was initiated by the Government The review was led by a senior official in the Cabinet Office, Mr Philip Collcutt. This Committee undertook an inquiry into the issues raised and its subsequent report was its contribution to the Collcutt review process. The Committee concluded that change was necessary because of the increased complexity of the work of the public sector, which affected both the public and the Ombudsman. We supported the creation of a single commission, which should be “the key objective of any reform process”. We criticised the MP filter as an idea which had outlived its time, and recommended that it should be replaced by direct public access. We endorsed the calls for a thorough review of the jurisdiction and powers of the Ombudsman, with an emphasis on increasing rather than reducing those powers. In conclusion we urged that the programme of reform should not be allowed to slip, adding that “We hope that restrictions on parliamentary time will not prevent an early opportunity being found for this important legislation to be enacted. It will bring important benefits to the public and should be seen as an integral element of the Government’s programme of public service and modernisation”.” PASC historic review of Ombudsman reform 2003
Those ‘important benefits to the public’ are still in the pipeline 15 years later, not helped by the tendency of government responses to be ‘in due course’ and despite the Select Committee throwing their full weight behind the call for reform.
This Committee supports the need for reform. Without clear, credible pathways for complainants, public services will never be adequately reformed. We reiterate our concerns and once again recommend that the Government produce a draft bill to implement the review of the Ombudsmen and actively seek an early solution to the problem of legislative delay. PASC 2003
In 2005 the National Audit Office released their review of government complaint handling and concluded that it was virtually impossible to evaluate either the true cost or the effectiveness of complaint handling due to the piecemeal fashion (and poor record keeping) of departmental complaint and appeal processes. NAO report 2005 Around this time a number of white papers were published which tinkered at the edges of reform, unable to alter the original legislation.
In June 2011 The Health Select Committee, who monitor the Ombudsman in relation to NHS complaint handling, released a report entitled ‘Complaints and Litigation’ Complaints and Litigation report which confirmed that the legislative remit of the Ombudsman was ineffective in meeting public demand. This was closely followed in July 2011 by a Law Commission report calling for legislative change, plus a wide ranging review of public service ombudsman independence and accountability in order to improve public access and flexibility. Law Commission Review 2011 Unfortunately, neither of these reports were sufficient to secure parliamentary time for further debate.
Failure to heed previous warnings led to the inevitable scandal. The Mid Staffordshire inquiry and the Francis Report of 2013 Report-Overview-2013 found that the complaints process had failed to alert those in authority to the estimated 1,200 unnecessary deaths due to NHS neglect. Following this report, PASC held an inquiry into public sector complaint handling which culminated in their report More Complaints Please! in March 2014. More Complaints Please! 2014
This report focused primarily on changing the culture of complaints handling, seen by so many in authority as just a nuisance to be closed down rather than as valuable feedback. It also took the opportunity to once again call for the single portal.
As so often in our Reports, we highlight that success depends on the right leadership.
Government must ensure that leadership of public services values complaints as critical for
improving, and learning about, their service. We welcome the Minister for Government
Policy’s review of complaints handling in Government, and recommend that:
• there should be a minister for government policy on complaints handling;
• the primary objective of the Cabinet Office review of complaints handling in
Government should be to change attitudes and behaviour in public administration at
all levels in respect of complaints handling;
• in respect of complaints from MPs handled by ministers, replies must be accurate, clear
and helpful. Confidential information should not be shared with third parties, and
responsibility for responding cannot be delegated (which contributed to the blindness
about Mid Staffordshire NHS Foundation Trust);
• the Government should create a single point of contact for citizens to make complaints
about government departments and agencies; and
• the Government should provide leadership to those responsible for various parts of
administrative justice, to ensure that there is a clear and consistent approach to sharing,
learning and best practice.
Achieving change of this nature is a difficult but vital challenge, and one that must be
addressed now if we are to avoid the “toxic cocktail” poisoning efforts to deliver excellent
This report puts emphasis on the fact that successful public service complaint handling requires the cooperation of MPs, Ministers and responsive government departments. To call for a Minister with responsibility for complaint handling policy indicates PASC desire for government to take complaints seriously and act upon them. No doubt a Minister for Complaints will be considered ‘in due course’.
This honest account of poor government department complaint handling (identified by Francis as a major contributor to the scandal of Mid Staffs) was followed by a hard hitting report into the specific performance of the Parliamentary and Health Service Ombudsman (PHSO) ‘Time for a People’s Ombudsman’, was published in April 2014 following a further PASC inquiry. Time for a People’s Ombudsman April 2014
Unsurprisingly, given their previous attempts to reform the Ombudsman in 2003, PASC confirmed that the Ombudsman service was ‘outdated’ and ‘stuck in time’. Calling once again for a single, unified Ombudsman service and the removal of the MP filter; PASC went further by calling for a strengthening of accountability for the Ombudsman service and the introduction of own initiative powers of investigation.
- As a priority, the iniquitous restriction on citizens’ direct and open access to PHSO,
known as the “MP filter”, must be abolished, as is already the case in respect of NHS
• PHSO must be able to receive complaints other than in writing: such as in person, by
telephone or online, just as is expected of any normal complaints system.
• PHSO should have “own-initiative” powers to investigate areas of concern without
having first to receive a complaint.
• Parliament should strengthen the accountability of PHSO. PASC, along with other
Departmental Select Committees, should make greater use of the intelligence gathered
by the PHSO to hold Government to account.
• In the longer term, there is scope to change the way that ombudsman services are
• A consultation on the creation of a single public services ombudsman for England.
• At the same time, there must be a distinctive ombudsman service for UK non-devolved
In our Report, More Complaints Please! we raised our concern that a “toxic cocktail” in
respect of complaints handling—a combination of a reluctance on the part of citizens “to
express their concerns or complaints” and a defensiveness on the part of services “to hear
and address concerns”—so often poisons efforts to deliver excellent public services. An
effective ombudsman service can help to address this but change is urgently needed if
PHSO, or any future public services ombudsman, is to ensure that it delivers a more
effective service that is responsive and proactive. Complaints must make a difference and
they must be welcomed and used to help to improve public services for everyone. (PASC 2014)
The PHSO Pressure Group was formed in November 2013 driven by frustrated individuals who had all received poor service from the Ombudsman and found it impossible to hold this body to account. phsothefacts.com The Pressure Group has continued to attract new members demonstrating that internal reform has done little to improve service delivery in the intervening time. You can read the PHSO Pressure Group response to the PASC report here: Response to PASC report.
Having called for increased parliamentary scrutiny of the Ombudsman it was clear that PASC themselves did not wish to take up this role.
We recommend that Parliament should strengthen the accountability of the
Parliamentary and Health Service Ombudsman (PHSO). The Public Accounts
Commission, or a similar body should take primary responsibility for scrutiny of PHSO,
including examining corporate plans, budget and resources. (PASC 2014)
In 2015 PASC was renamed Public Administration and Constitutional Affairs Committee (PACAC) in recognition of its new role. The standing order for PACAC is rather limited in reference to scrutiny of the Ombudsman, yet no other body has been appointed to take up the increased ‘accountability’ role to date.
2014 was a difficult year for PHSO who were also under inquiry from the Health Select Committee (HSC) following the release of a damning report from the Patients Association, an independent charity promoting the voice of the patient. Inundated with complaints from the public in November 2014 the Patients Association released case studies detailing distressing accounts of service users experiences. ‘The Peoples Ombudsman – How it failed us’.
The evidence we have gathered gives a public perception of the PHSO as lacklustre, weak,
secretive, unaccountable, untouchable and ineffective. The emotional cost for many families left exhausted and distressed through their experience with the PHSO far outweighs the huge financial cost. [£40 million PHSO funding]. The Patients Association therefore continue to be drawn to the conclusion that the PHSO remains unfit for purpose. The-Peoples-Ombudsman-How-it-Failed-Us
Coming from service users this report focuses directly on the investigative process of the Ombudsman and on public accountability; giving specific recommendations for system change. It did not call for a single Commission, nor changes to the MP filter which have been set as key objectives by parliamentary bodies. Instead it called for clearly defined jurisdiction and a code of practice which could then be used to hold the Ombudsman to account. Cost effectiveness was also called into question.
1. It is time for an independent review of the role and accountability of the Ombudsman.
2. A more publicly accountable PHSO.
3. Legislation applied to the PHSO should be reviewed.
4. The statutory duty for NHS Trusts to adhere to the principles of being open should be
extended to the PHSO handling of complaints.
5. Clearly defined organisational boundaries and jurisdiction must be established.
6. A review of case by case costings by the National Audit Office.
7. PHSO’s paper-based procedures need to be completely overhauled.
8. An independent appeals process for PHSO investigations.
9. A code of practice for investigators.
10. Terms of reference for each investigation must be agreed with the families at the
commencement of an investigation.
11. A review of time lines for the completion of investigations.
12. Face to face meeting with the complainant/s at the commencement of an
13. Agreed regular face to face meetings with complainants at each stage of the
14. Independent advocacy support available for all complainants.
15. Time lines for submissions of appeals must be extended.
16. It should not be under the remit of the PHSO to recommend monetary settlements to
17. To ensure learning the PHSO must influence change and ensure Trusts adhere to
recommendations following appropriate investigations
The Patients Association report, representing service users, addresses the thorny issue identified in the House of Lords back in 1967, that in order to be effective and accountable the Ombudsman must have a clearly defined jurisdiction and the statutory power to drive reform.
In response to this report the Health Select Committee took evidence in 2014 and released their report ‘Complaints and Raising Concerns’ in January 2015. Complaints and Raising Concerns HSC With an emphasis on service users and NHS whistleblowers the report looked at progress in complaint handling since their 2011 report ‘Complaints and Litigation’ and the impact poor complaint handling had on the individual concerned.
HSC concluded that;
There have been a number of significant reviews of the complaint system which have
urged a change in the culture of the NHS in responding to complaints. There is little firm
evidence to date of the moves to change culture having a wholesale positive effect either on
the behaviour of NHS providers which give rise to complaints or on the satisfaction of
service users about how their complaints have been handled. (Paragraph 13 HSC Jan 2015)
They called for a government review and for a number of recommendations to be implemented among which were:
- A single portal for complaint handling.
- This should integrate complaints regarding ‘social care’ under a single Health and Social Care Ombudsman.
- Local resolution at first-tier level.
- A review of advocacy arrangements.
- Vindication for whistleblowers
- External accountability for PHSO.
The serious criticisms of the Ombudsman from the Patients Association are of grave
concern. We recommend that an external audit mechanism be established to
benchmark and assure the quality of Ombudsman investigations. In her response to
this report we ask the Ombudsman to set out how her organisation is seeking to
address problems with its processes, and a timetable for improvements. (Paragraph
91 HSC Jan 2015)
Accountability for the Ombudsman was now firmly on the agenda, due largely to public demand. In March 2015 the Patients Association published a follow up to their November case studies with an analysis of the types of issues faced by complainants using the Ombudsman service. ‘PHSO – Labyrinth of Bureaucracy’ Labyrinth-of-Bureaucracy- PHSO-report Using a patient survey the Patients Association determined that there were common weaknesses in the investigation process which needed to be addressed, and called once again for the recommendations from their previous report to be implemented.
The Patients Association has collated the responses which evidence that the PHSO:
Does not investigate complaints fairly – Evidence is ignored.
Takes sides with the organisation they are supposed to be investigating – Even when there is clear evidence to do the contrary.
Does not make the process straightforward – They ask many questions that the complainant has already answered or cannot answer. They change case worker/investigator without informing
the complainant. They take weeks to respond and then ask a question which could be answered
by looking in the submitted paperwork.
Produces reports that aren’t thorough or the product of comprehensive investigation – Final reports are full of inaccuracies despite the inaccuracies being highlighted by the complainant
when the report is in draft format.
Fails to make a difference through the complaints process – Trusts aren’t asked for assurance that recommendations are acted upon and so change is not implemented and improvements are not made.
Does not put patients central to process – Patients are made to feel like they are a nuisance for
complaining, that they are wasting the PHSO’s time and that there are others worse off.
In December 2014, keen to focus on improvements to NHS complaint handling and prompted by a paper from Carl Macrae and Charles Vincent ‘Learning from failure: the need for independent safety investigation in healthcare’ Macrae and Vincent report PASC instigated a further inquiry to establish an expert panel to investigate clinical incident with the same robust measures as those used by the aviation industry. This reported in March 2015 ‘Investigating clinical incidents in the NHS’ Investigating Clinical Incidents in the NHS
This report provides a good overview of the chaotic NHS complaints process with over 70 different bodies involved yet no single body with overall responsibility to drive improvements.
It concluded that;
There is no systematic and independent process for investigating incidents and learning from the most serious clinical failures. No single person or organisation is responsible and accountable for the quality of clinical investigations or for ensuring that lessons learned drive improvement in safety across the NHS.
Highly critical of the role of PHSO, the report called for an internal change programme to be drawn up by the Ombudsman and placed in the public domain as a matter of urgency. The inquiry confirmed low public confidence and that expectation outstrips current capacity, particularly in relation to complex clinical investigation. A further recommendation was that NAO assist in an inquiry regarding value for money of the Ombudsman services, which cost £37 million in 2014/15 (£8,644 per investigation carried out).
Complainants deserve an Ombudsman they can have confidence in. There are
serious questions about the capacity and capability of the Ombudsman’s office, in
particular in relation to complaints involving clinical matters. We are aware of
considerable anguish and disquiet where Parliamentary and Health Service
Ombudsman investigations fail to uncover the truth, and of pain inflicted by the
Ombudsman’s defensiveness and reluctance to admit mistakes. This underlines the
need for improved competence and culture change throughout the system, including
in the PHSO. PHSO leadership is aware of the need for this change, but it is proving
more challenging than expected. We welcome the PHSO’s aim to improve the
quality and accessibility of its services. However, the Ombudsman’s office is under
considerable strain. Fundamental reform of the Ombudsman system is needed.
There has been concern in parliament for many years that the Ombudsman is failing to deliver justice and drive reform in public services. This concern is now shared more vociferously by members of the public with the presence of an active pressure group, damning reports from the Patients Association and over 96,000 signatures collected by a Which? campaign to improve public service complaint handling. Which? campaign news
Conclusion: The original flaw in Ombudsman legislation was a lack of definition regarding the nature of ‘maladministration’. If there is no criteria for determining maladministration then how can a lay person investigator be sure of identifying the same, with any consistency, in order to uphold a complaint? Similarly, lack of power to enforce recommendations, no statutory duty to monitor in order to drive reform and the total discretion to act however the Ombudsman sees fit, has left this body ineffective and unaccountable. The many reports into this subject confirm that both the public and parliament have lost confidence that the Ombudsman is able to deliver an effective service to the public and hold government bodies to account. Initially, reform focused on structure and administration, but there is increasing pressure from service users to see improvements to processes and public accountability. Finally, after 48 years and much debate there is an opportunity to take action.
The Cabinet Office Review of the Ombudsman Landscape
In the Queen’s speech of September 2015 it was confirmed that time would be set aside to discuss the draft Public Services Ombudsman Bill
This is the one draft bill to feature in the Queen’s Speech. It proposed to reform and modernise the Public Service Ombudsman sector to provide “a more effective and accessible final tier of complaints redress within the public sector”. It would absorb the functions of the Parliamentary Ombudsman, the Health Ombudsman, and the Local Government Ombudsman and potentially the Housing Ombudsman. bbc.co.uk/news
In October 2014, Robert Gordon CB presented to Oliver Letwin Minister for Government Policy, a proposal to restructure the Ombudsman landscape following a review of the current position. ‘Better to Serve the Public: Proposals to restructure, reform, renew and reinvigorate public service ombudsmen’ Robert_Gordon_Review A glance through Appendix B will demonstrate that most of those consulted were service providers. Despite the fact that the primary objective was to improve accessibility and effectiveness for citizens, the original TOR states;
The review will seek sectoral stakeholder views on what works well and where there are obstacles to effective service delivery.
The Gordon review starts with the acceptance that;
- a citizen centred Ombudsman is a vital part of the redress landscape, but that the present legislation diminishes the role that the Ombudsman can play.
- the current Ombudsman landscape is complex and poorly understood.
- strong need to consider the most cost effective means of delivery whilst maintaining public confidence.
Using reports from the PASC inquiries and others; notably that of the Law Commission (July 2011) the Gordon review put forward the following recommendations:
- That the Ombudsman be the final tier of complaint redress for citizens as it is now.
- New powers to champion and monitor complaint handling standards.
- New responsibility to be an agent for public service delivery improvements.
- Agreement to removal of the MP filter.
- Agreement to giving the Ombudsman own initiative powers of investigation.
- That legislation provides for a new single Public Service Ombudsman (PSO) encompassing UK Parliamentary Ombudsman, Health Service Ombudsman, Local Government Ombudsman and Housing Ombudsman.
- PSO jurisdiction is defined in statute to follow the ‘public pound’.
- Accountability to parliament should be divided between Public Accounts Committee (PAC) for costs, performance against targets and budget setting and Public Administration and Constitutional Affairs Committee (PACAC) for delivery and dissemination of reports to drive public sector reform.
This is not an exhaustive list, but this sample does indicate the heavy influence of service delivery stakeholder groups. To date too little attention has been paid to the issues raised by the Patients Association reports which highlight the distress of service users whose poor experiences were confirmed by the many individuals who submitted evidence to the PASC inquiries in 2014. This review suffers from lack of consultation with service users at the earliest stages. For instance, one recommendation is that the Ombudsman themselves act as advocates to assist the citizen to navigate through the system. As part of the system, there is clearly a conflict of interests here and this role must be given to an independent body. Scant reference is made to the level of expertise required by the Ombudsman staff to bring it in line with the new Independent Patient Safety Investigations Service (IPSIS) All mentions of accountability are related to the Ombudsman’s accountability to parliament with no reference to strengthening accountability to the public. There has been no recognition of the importance of defining the terminology of ‘maladministration’, determining a code of practice and replacing total discretion with clear performance criteria which would all work towards holding the Ombudsman to account. Equally, no reference is made to introducing an external audit of Ombudsman reports and decisions as recommended by the Health Select Committee. There is a tendency for the Cabinet Office to leave key principles of reform to the Ombudsman themselves; a condition which has brought us to the present state of affairs. By supporting the continuation of wide-ranging discretion, this report goes some way to maintaining the status quo.
“…that the ombudsman alone must have the power to decide whether or not a complaint is within jurisdiction and then have the power to determine it; that the ombudsman’s determination should be final and should not be able to be overturned other than by the courts and that the ombudsman should be accountable to a body independent of those subject to investigation. I consider that these criteria should apply to any public services ombudsman arrangements for the future and that the core functions of the ombudsman should not alter.” Robert Gordon p15
The court, via judicial review, does not hold the Ombudsman to account as it has proven to be (virtually) impossible to prove that the Ombudsman has acted unreasonably given such powers of discretion. The draft legislation will be based upon this report and to date it does not go far enough to meet public expectations or restore public confidence. Much active debate will be needed if we are to make the most of this opportunity.
The PHSO Pressure Group response to the Robert Gordon Review can be seen here: PHSO Pressure Group response to Gordon review
The PHSO Pressure Group are calling upon all interested parties to combine together and convert the very many fine words into effective deeds for 2016 and beyond.