It’s not easy for Rob Behrens, the Ombudsman to ask for additional powers. When you are paid the salary of a High Court Judge people tend to assume that you have all the powers you need. To draw attention to the fact that you don’t, could damage the veil of ‘public confidence’. But Rob Behrens is a man on a mission – to make PHSO into an ‘exemplary’ Ombudsman and time is running out.

Mr Behrens has been using every opportunity to ask Parliament to grant more legislative powers in order to ‘…increase our capacity to improve public services and make it easier for people to access justice when things go wrong.’  Good to know that his heart is in the right place with protecting the public uppermost in his argument for legislative reform. He is asking for ‘own initiative’  powers  so that the Ombudsman can open an investigation even when no official complaint has been made. And he is asking for PHSO to become a ‘Complaints Standard Authority’ with the power to set standards on good complaint handling across public bodies, as is the case in Scotland. 

Given that the Ombudsman has been carefully chosen by Parliament to be a trusted person of high integrity, why would Parliament not grant such powers at the earliest opportunity, in fact why were they not granted in the first place if they can, as Mr Behrens states, provide justice and improve public services?

There was always a fundamental flaw in parliamentarians being the ones who designed the ‘Parliamentary Commissioner’ who would ultimately hold them to account. Through a series of amendments, lasting some years of debate, they decided not to give this body either teeth or claws by which some damage may be done. The following paraphrased quotes from Hansard give a flavour of the 1967 debates which can be read in full here:

“The Bill was always drafted to be a swiz, and now it is spelt into the Bill…………Anyone who contemplates an office of this kind is faced with the dilemma of making it either a Frankenstein or a nonentity—a Frankenstein if it has effective powers and a nonentity if it has not. The Government, quite rightly, has opted for its being a nonentity, and in that sense it is a fraud……… I congratulate the Government on its being a nonentity. A Frankenstein would, I think, have undermined the power of Ministers…… it is a noble facade without anything behind it”

Hansard January 1967 vol 739 cc1375-400 and Hansard January 1967 vol 739 cc1419-53

“I see the Amendment as an admission on the right hon. Gentleman’s part that the powers in the Bill as it stands would scarcely suffice to pull the skin off a rice pudding.”

There was concern that the Commissioner (renamed Ombudsman) would become overworked and consequently stretched beyond his resources if too many options were made available to him.

“I was somewhat amazed to find the Leader of the House suggesting that Schedule 3 was designed to assist the ombudsman in limiting the work he would do. [Laughter.] I gather from the laughter that the House shares the absurdity of that which I had seen. At this time of night, I do not propose to take up a great deal of time. The Amendment gives a glimmer that it may be possible to correct the over-limited ambit of the Commissioner’s powers on which both sides of the Committee were thoroughly dissatisfied.”

Given that the stated purpose of the Ombudsman was to provide justice for aggrieved members of the public (plus the added bonus of providing a route for backbenchers to hold the executive to account) there was, quite rightly, concern that the powers granted would not be sufficient to meet expectations.

“But if we are to have an ombudsman, then it is absurd so to limit his powers by exclusion that one turns him not only into the swiz he started off as but into a double swiz upon swiz. Our objective throughout has been that, if we are to have an ombudsman, it is wrong for the purposes of the public that they should be led to believe that they are going to get opportunities or rights through his powers which were not the case.”

And this most telling phrophecy should the Ombudsman fail to deliver a fair outcome.

“The people affected live with their bitterness for the rest of their lives.”

But times change and in our modern, transparent government there can be no reason not to extend the powers of the Ombudsman beyond servant to the House (hence the MP filter). Yet, Sir Bernard Jenkin, Chair of PACAC suggests that the request for more powers could be deemed ‘Empire building’ on the part of Mr. Behrens. An attempt to obtain power as an act of self-aggrandisement. There could be some mileage in this argument given that last year only 20% of the complaints received by the Ombudsman made it through to assessment and just 8% received a full investigation (2017/18 Annual Report data). If Mr Behrens genuinely wished to increase capacity to improve public services and provide access to justice for more people he could simply investigate more complaints. But the role of the Ombudsman (according to Mr Behrens) is wider than merely delivering justice to members of the public. Mr Behrens meets often with his international counterparts who take own initiative powers as standard. Perhaps it is something of an embarrassment for Monsieur Rosbif to hold his own in these international talking shops?

Equally, he is in competition with the Scottish Ombudsman (SPSO) who became a Complaints Standard Authority in 2010 giving them the power to ensure that public bodies follow an agreed complaint procedure which allows just 20 working days to provide the final decision. The 6 key points are listed below.

The wee Sassenach can only look on with envy at such powers. Could you imagine Parliament allowing the Ombudsman to publicise the complaint handling stats of the DWP or the Home Office, not to mention the NHS. Or heaven forbid hold them to account should they fail to give a final decision in a mere 20 days! Efficient redaction is a time consuming activity.

Shame Mr Behrens didn’t include the powers of compliance in his wish list. Martin Lewis of Money Saving Supermarket put that high on his priorities for Ombudsman reform stating that legal powers of compliance were essential to an effective Ombudsman. (Report to APPG on Consumer Protection Pub. January 2019)

‘As a minimum – to be called an ombudsman – ombudsmen should have statutory powers to require firms within their sectors to be members, to cooperate with investigations, to comply with decisions, and they should also have the power to enforce their decisions in court if necessary.”

Martin Lewis went so far as to say that without powers of compliance the term Ombudsman was ‘flaccid’. Ouch! Not easy being the mighty Ombudsman when you know that the powers you need lie elsewhere. No wonder Mr Behrens plans to be off as soon as his three-year ‘back to basics’ plan is complete. Fighting a losing battle can be incredibly draining.

Listen to Martin Lewis talking on radio 5 live about the urgent need for Ombudsman reform. What use is a flaccid Ombudsman?

Martin Lewis talking on radio 5 live 30.1.19
Simon Ellinas Cartoons