This is a question that only complainants seem to ask. Those in authority all colluding with the proposition that the Ombudsman is impartial. Rigorous academic research could provide the answer as data would have to be gathered from both sides. I wanted to present such an opportunity to the recent Administrative Justice Council pop up event (12th February 2019) where academics met to agree new research objectives. Unfortunately, after securing a ticket I was informed by Naomi Creutzfeldt, one of the organisers, that it would be inappropriate for a ‘hostile campaigner’ to attend as it might frighten off new researchers. When telling the truth about your own lived experience becomes ‘hostile’ you know things aren’t right in the academic world.
The ‘pop up’ was essentially a ‘pimping service’ where representatives from government bodies such as the Ministry of Justice (MOJ), Parliamentary and Health Service Ombudsman (PHSO) and Her Majesty’s Courts and Tribunals Service (HMCTS) could connect with researchers who were prepared to take payment for services rendered. Admittedly, that does sound rather hostile but they themselves accept there is a risk that their autonomy is jeopardised by the lure of government grants. Quote from their roundup session:
There is a risk that research will focus on what organisations or government want done, what data are available, or what funders are interested in, rather than on a consensus view of what is needed in the way of administrative justice research. Both Ministry of Justice and HMCTS are interested in working collaboratively with researchers and to have input on what data should be collected in evaluation work.
More than just a risk when other voices are actively kept out of the room. You can bet that both the MoJ and HMCTS will be interested in working collaboratively with researchers on data collection as by controlling the data you can control the outcome. On this point, it is interesting to note that academic Dr Chis Gill, lecturer in Public Law at the University of Glasgow recently informed PACAC (see Q9 )that he was particularly impressed with the consumer feedback gathered by PHSO and this data alone gave him confidence to confirm improvements in service delivery.
We were particularly impressed with the consumer data. That compares very favourably with consumer data collected by other public service ombudsmen. As to the scope of it and how it is collected, it is independently collected, and it is done in tandem with an internal QA process; all of that, to our mind, was very good-quality evidence that helped put in context some of the more acute issues that have maybe occurred in the past, with particular complainants being dissatisfied. That was one of the things that we built our level of confidence on in terms of this report.
This is despite the fact that PHSO act as a primary gatekeeper by controlling access to the customer survey in the first place. When did it become acceptable for academics to rely upon one source of evidence for their conclusions? (Kerching)
Way back in 2015, before they considered me to be ‘hostile’ I was asked by UKAJI to write a complainant’s eye view of the Ombudsman experience. Here are the key points I made:
No victim empowerment here; instead you become a victim all over again, a victim of the complaint process. Many regret that they ever took a case to the ombudsman, as it served only to compound their emotional stress; others wish that the body didn’t exist at all rather than raise false expectations.
Some of the key obstacles faced by complainants are:
lack of communication – you have to drive the case forward
secrecy – no knowledge of statements made by public body, though they are given access to your evidence
manipulation of the facts
staff away on leave regularly or case passed between staff so you start again with new case worker
blanket statements from staff which do not address key points raised
acceptance of statements made by public body at face value
refusal to release details of clinical advisor used – report written by clinical advisor – questions asked of clinical advisor or evidence supplied to clinical advisor
no action taken if a service delivery complaint made
any complaint made about the decision will be met with suggestion to go to judicial review
Since then we have been rather sidelined by the academic establishment and those in authority, notably the Ombudsman himself, Mr Rob Behrens, who describes us as a ‘small group of dissatisfied complainants’ who are unable to engage in ‘constructive dialogue’. Our first-hand experience just doesn’t sit well with the ‘open, transparent, impartial, remedy’ rhetoric regularly trotted out by the PHSO comms team. But now we find we are not alone. Concerns about the Ombudsman are as old as the Ombudsman office itself and way back in 1983 an academic/journalist named Paul Burgess actually talked to complainants in order to answer the question ‘Whose side is the Ombudsman on?’ and surprise, surprise the feedback from those complainants is an exact echo of our own concerns some 35 years later.
Published in New Society V55 on 13.1.1983 Mr Burgess opens with the following paragraph:
Whose side is the Parliamentary Ombudsman on? Is he the people’s champion against red tape and officialdom? Or is he an arbitrator seeking the middle way, the acceptable compromise between the aggrieved citizens and state bureaucracy? There is rising disquiet about the Parliamentary Commissioner for Administration, to give the Ombudsman his official title, and about his effectiveness in checking administrative abuse. Close scrutiny of some of his recent investigations suggests the disquiet is well-founded.
Openly criticising the Ombudsman was the first of many mistakes for Paul Burgess who was roundly slated for his article and no doubt told to tow the party line. He compounded his crime by including data to support his concerns and witness statements from complainants, Mrs Ward and Mrs Wilson breaking a number of unwritten rules.
rule no 1. – use only selective data to show how the Ombudsman service is improving
rule no 2. – never listen to complainants as they are unreliable narrators.
He foolishly pointed out that the Ombudsman has total discretion to cherry pick the cases to investigate in the first place and in 1983 just a third of the 1,031 complaints received an investigation. Paul Burgess was appalled to learn that in 1981 it was even worse with fewer than one if four of the 917 complaints being taken up for investigation. He was clearly concerned about the many dissatisfied citizens who were simply turned away from the only arbiter who could assist them so heaven knows how he would feel to learn that in 2017/18 the Ombudsman investigated just 8% of the 32,389 complaints which came his way and upheld just 3% of all those complaints. This is a shocking statistic of failure to deliver justice and remedy to the public but one which gets little attention.
Paul Burgess revealed that customer satisfaction was low.
The eventual outcome, after investigation of the cases he accepts, is apparently satisfaction for less than one in eight of all complainants. What has gone wrong?
With only a 3% uphold rate satisfaction in the Ombudsman has gone from bad to worse. Perhaps if the Burgess article had opened up an honest debate at the time, things would have improved but unfortunately, his article was stifled by the academic establishment.
There has always been some confusion about the role of the Ombudsman and Rob Behrens uses this to good effect with claims that ‘the public do not understand’ and ‘they expect us to deal with their issues’ and when disappointed with the results the public are to blame for not being able to ‘manage their expectations’. Back in 1983 Paul Burgess understood the role to be;
Constitutionally, his job is to protect the citizen from maladministration and to pursue officialdom for unjust treatment.
If protecting the citizen is the primary role, then the Ombudsman is failing 97% of the citizens. By default, the actual role must be to protect the government from findings of maladministration as the Ombudsman has consistently achieved low uphold rates for the last 50 years. Paul Burgess goes into some detail of Mrs Ward’s case who actually received an upheld verdict on her complaint about the DHSS but was distressed by the failings of the investigation process. This is an interesting example for analysis as the well-rehearsed line on disgruntled complainants is that they are dissatisfied because they didn’t get the decision they were looking for. Well, Mrs Ward did get the decision she was looking for but the process was long-winded, opaque, riddled with error and failed to take note of anything she had to say. That sounds familiar. Here are a few snippets from Paul Burgess analysis which chillingly chime so accurately with our own experiences:
… in an investigation which took a year, he [the Ombudsman] made no contact at all with the complainant. Consequently, relying upon the DHSS version of events, he got his facts wrong. As it happens, Mrs Ward is a diary-keeper and could have given him a detailed record at least as reliable as that of the DHSS local office.
When pressed by George Morton her MP to explain this interpretation of an impartial investigation, Clothier [Ombudsman] replied that the DHSS files had provided ‘ample’ information. He was not, of course, to know that the local office involved had acquired some notoriety among welfare rights workers, and was indeed found by an independent appeal tribunal, within a year of his report, to have fabricated evidence against a claimant.
You don’t have to be an academic to spot that if the Ombudsman relies on evidence from only one-side this would prevent fabricated evidence coming to light. An easy thing to put right but this still happens at PHSO who allow government departments to tell their own story without probing or correlation to the facts. Some would call this bias, in fact, most reasonable people would call it bias for bias it is.
Paul Burgess also notes an aspect of the Ombudsman’s reports he terms ‘accommodating observations’ aimed to give balance where none is deserved. Bending over backwards could be another apt description.
Scattered through the report are accommodating observations about the DHSS. This is a common feature of his reports in general and contributes significantly to the overall ‘tone’. Legal obligations fulfilled by the DHSS are presented as concessions – the back-dating of the invalidity pension for Philip, when in fact good cause had been legally established; and the writing-off of an over-payment which was caused by yet another mistake at the local office and was therefore not recoverable.
Many who receive long-awaited PHSO reports are surprised to find that despite acknowledging damning evidence of failure to follow written procedures resulting in harm to the citizen the Ombudsman is prepared to reserve negative judgement on the basis that the organisation has informed them that it has since improved or on the basis that even if procedures had been followed the same harm would most likely have occurred. The Ombudsman in full limbo dancing mode whilst holding aloft a crystal ball.
Paul Burgess also used the case of Mrs Wilson to demonstrate how the Ombudsman manipulated the facts to show the government body in the best light. Mrs Wilson received uphold in two of her three complaints but was dissatisfied with the service stating that ‘the system to which he belongs does not understand what ordinary people want from the Ombudsman.’ How very true.
The report says, “The local social security office were not to know that the rules governing Family Income Supplement were about to be changed.” But two months previously, the DHSS had announced the forthcoming change. It seems reasonable to expect the Ombudsman to establish that the local office should have known; Mrs Wilson did!
Paul Burgess throws caution to the wind when he goes on to criticise parliament’s select committee which is the only body charged with holding the Ombudsman to account.
The Ombudsman is responsible to MPs and to parliament through a select committee. Unfortunately, apart from the occasional splutterings, the committee appears to be singularly docile. Its reports have a complacent, self-congratulatory air. Most disturbing of all is its failure to prevent the Ombudsman from being taken to the bosom of the Establishment.
If you are snuggled inside the bosom of the Establishment as the Ombudsman most surely is, protected on all sides from proper scrutiny, then it is impossible to call yourself ‘impartial’. The figures alone tell the story as year after year the Ombudsman dismisses without uphold well over 90% of the complaints it receives. But try telling that to the academics or the media and you will be met with a roll of the eyes as they encounter yet another hostile citizen hell-bent on revenge. Let us leave the last word to Paul Burgess who reveals the truth having spoken to complainants themselves and studied first-hand the Ombudsman reports, something which is unheard of today. He also sets a challenge for those now working in the field of administrative justice in his final conclusion.
At grassroots level, I believe the ombudsman scheme has been a failure. It does not offer the ordinary citizen a satisfactory remedy against administrative abuses; indeed, it has become a part of the oppressive network of official institutions which, though purporting to offer public service, have effectively acquired purposes and justifications of their own. This failure was anticipated by some people from the beginning. The late J.D.B. Mitchell, former Professor of Constitutional Law at the University of Edinburgh, argued; “Public authorities have moral responsibilities and these moral responsibilities can never be translated into legal responsibilities without a specific system of public law.”
So who is going to fund the academics to put out papers on the moral v legal responsibilities of the Ombudsman? Any offers, anyone at all ….