Since Rob Behrens became the Ombudsman in April 2017 he has been at great lengths to stress the importance of ‘impartiality’. In his pre-appointment hearing with PACAC (18.1.17) he confirmed that ‘impartiality’ was central to the role of the Ombudsman.
Once the ombudsman loses impartiality, he or she ceases to be an ombudsman and ceases to be independent. There always has to be that test, but you need to know that the ombudsman service has done as much as it can, and we have to explain that we are not the consumer champion but that we are an independent ombudsman service that has to adjudicate on the basis of the evidence that is available. Q 14
On the subject of evidence available, what evidence is there that the Ombudsman acts in an impartial manner when resolving complaints about government bodies and the NHS? There is absolutely no evidence to support this claim as there is no external scrutiny of the Ombudsman process, no external scrutiny of Ombudsman reports and the only body charged with any kind of external scrutiny – the Public Administration and Constitutional Affairs Committee (PACAC) chaired by Sir Bernard Jenkin have chosen not to scrutinise individual complaints. FOI request
What evidence is there that the Ombudsman is not impartial?
Quite a lot.
- There is the fact that PHSO is Parliament’s Ombudsman, set up by legislation agreed in the House as a body to hold government departments, Ministers, MPs and civil servants to account. An inherent conflict of interests from the beginning. The Parliamentary Commissioner (PCA) later known as the Ombudsman was set up as an officer of Parliament designed to assist MPs in holding the executive to account via public complaint.
The PCA cannot be seen as independent of, and therefore is linked inexorably with, Parliament. In fact it would seem to be difficult to separate the PCA from Parliament without significant statutory changes. Denning Law
- This report from Paul Burgess 1983 found that the Ombudsman did all in his power to accommodate the body under scrutiny, whilst ignoring the complainant and confirmed that a lack of external scrutiny had allowed the Ombudsman to be taken into the ‘bosom of the establishment’. Not an easy place to be if you are claiming to be impartial.
- More recently the Patients Association (PA) wrote a number of damning reports about the work of the Ombudsman. In 2015 (following the publication of a previous report) over 200 people contacted PA to state their dissatisfaction with the Ombudsman service. The PA collated their responses in a report entitled Labyrinth of Bureaucracy where 66% stated that the final Ombudsman report was factually incorrect, inconsistent or substandard and 62% said that the Ombudsman overlooked evidence which contradicted the NHS Trust apparently siding with the Trust. Lack of impartiality was a repeated complaint.
- Review request data indicates dissatisfaction with the Ombudsman investigation process and decision making. In 2017-18 complainants made 1,724 review requests. By contrast, only 17 review requests were made by public bodies. So for every 100 review requests made by complainants, only 1 review request was made by a public body. FOI request
This discrepancy is in keeping with a very low uphold rate. In 2017/18 only 2.6% of accepted formal complaints were upheld in full and only 12.2% were given partial uphold. The vast majority of people who complain to the Ombudsman go away with nothing.
- Consumer feedback data is used by PHSO to demonstrate to PACAC the level of public confidence and satisfaction in the service. If the Ombudsman acted without impartiality then this should be highlighted in low consumer scores. In July 2016 PHSO changed their method for gathering consumer data and now compare external complainant feedback with an internal score generated by the Ombudsman as part of their Service Charter. They seek the complainants’ feedback on all key areas apart from Q10 which relates to the impartiality of the service. This omission has been criticised in the PACAC Annual Scrutiny Report 2016/17.
Impartiality and unconscious bias
47. The one commitment the PHSO’s service charter does not ask for complainants’ views on is number ten: “We will evaluate the information we’ve gathered and make an impartial decision on your complaint”. Many written submissions suggested that the PHSO’s investigators are biased towards professionals or the body being investigated, called ‘bodies in jurisdiction’ by the PHSO. In evidence Amanda Campbell told us, “I have exactly the same said to me from bodies in jurisdiction; they believe that we are biased towards complainants.”
If the number of review requests is taken into account (as given above) it can been seen that for every dissatisfied body in jurisdiction there are 100 dissatisfied complainants so it would appear to be something of a glib response from Amanda Campbell CEO given the importance of impartiality to the very DNA of the Ombudsman service.
As public confidence relied upon the fact that the Ombudsman was seen to be impartial, PACAC requested that PHSO asked this question of complainants and published it as part of their service charter in the future. Although PHSO agreed to find a way forward on this by 2017/18 they were still not publishing on the specific question which dealt with impartiality. Consequently, Dr Rupa Huq a member of PACAC asked the following question in January 2019.
Last year the Committee recommended that as part of the service charter you ask complainants about whether they perceive you as impartial in your decision-making. How and when do you intend to do that? Oral evidence Q111
She was given a waffly response from Amanda Cambell CEO which suggested that securing this information was difficult but all they need to do is put Q10 of the Service Charter to the public as it is stated; We will evaluate the information we’ve gathered and make an impartial decision on your complaint. Why is PHSO so reluctant to put their ‘impartiality’ to the test?
- Customer satisfaction data should act as a barometer of performance giving valuable feedback to both PHSO and PACAC. It is however, difficult to have any confidence in this data when the percentage scores fail to reflect the external criticism of this organisation. It has now been widely accepted that between 2012 and 2016, under the stewardship of Dame Julie Mellor, the Ombudsman service had ‘lost its way’.
“When I joined, it was an organisation in transition, which was not performing well. It wasn’t clear what its core role was anymore. My aim was to create an organisation that reflects the Ombudsman DNA – meaning being independent of bodies in jurisdictions, but also of complainants.”Interview with Rob Behrens June 2018
Yet the satisfaction scores under Dame Julie Mellor’s were higher than they are now under Mr Behrens leadership. Why didn’t these ‘independently gathered’ scores reflect the levels of dissatisfaction cited by the Patients Association, reported to PACAC by the public in numerous written accounts and now acknowledge by PHSO themselves?
In 2017 Martin Lewis and Money Saving Expert (MSE) carried out an independent survey of Ombudsman services. Approximately 100 people responded regarding PHSO and 82% said their experience was poor (p 54) with 75% saying they felt that PHSO was biased in favour of the other party (p 59) MSE-2017 These ‘independently gathered’ low-score figures are also replicated on other free-access consumer forums such as Google reviews and Trustpilot. Why is there such a disparity in scores?
If the PHSO customer satisfaction scores are an indicator of public confidence they are an unreliable one but as no other indicator exists, these are the scores which are repeatedly used to demonstrate approval. It can be seen that there has been no real movement over time but a rather static stodge of data.
- Most recently Sir Liam Donaldson used these scores to determine that there was a level of customer satisfaction in the Ombudsman service. It would appear that he was not availed of this view from any other sources. Unusually, he had been able to take a peek behind the curtain of the secretive PHSO investigation process. Following an upheld judicial review against PHSO, Sir Liam was recruited as an independent expert to review the way PHSO used clinical advice in determining the outcome of investigations. His Clinical Advice Review was completed in December 2018 but not released until March 2019, after the annual PACAC scrutiny session which was held in January. Referring to the court judgement, Sir Liam cites the fact that the ‘internal’ world of PHSO where caseworkers remained convinced of the validity of their actions, clashed with the ‘external’ world where those actions were held to be perverse and illogical to the point of illegality. This goes to the very heart of ‘self-regulation’ and warns that PHSO should not be able to continually monitor its own performance without some form of external scrutiny. With direct access to caseworkers, clinical advisors and complainants Sir Liam had a rare opportunity to examine the whole investigation process. Although measured, his report reveals a system which is rife with opportunities for bias from the pre-determination of lay caseworkers who sift clinical evidence to present their preferred account, to the failure to provide all the evidence to the clinical advisors or allow them to give valuable input which goes beyond the narrow question base procedure and emphasised the failure to involve the complainant, often a key witness, until the process was complete.
- With access to written transcripts, case studies, investigation reports and the attendance at a ’round table’ focus group meeting with twelve complainants, Sir Liam reported that the complainants told a consistent story and one which needs to be heard.
It would be wrong to simply note the critical comments and conclude that they were an unrepresentative minority. The sources of information on complainants’ experience provide rich and important insights into the functioning of the PHSO service. It was particularly striking that the group of complainants, with whom I, and the Clinical Advice Review Team, met, was not made up of vexatious or unreasonable people. They expressed frustration and, anger, but the problems that they described with the handling of their complaints should be a vital source of learning. Many of their criticisms of the PHSO’s processes, and those in the documented accounts and submissions, were consistent with what I had already observed, having read a sample of records provided to me. (p13)
Why would Sir Liam even consider that the views from complainants would be from an ‘unrepresentative minority’ who were ‘vexatious’ or ‘unreasonable people’? Where did that idea come from? Quite possibly from the Ombudsman himself who continually describes critics of his service in this disparaging manner. Here is Rob Behrens discussing the ‘user voice’ in a recent article written for ‘Research Handbook for the Ombudsman (p463)
Reading Sir Liam’s Clinical Advice Review it is obvious that there is no ‘clear and accessible policy framework’ and certainly not one which protects the public. There is also a great deal of evidence, as cited above, that the Ombudsman is not impartial, hence the dissatisfied users joining together. The fact that James Titcombe had to fight PHSO with ‘tenacity and resilience’ speaks volumes about the service he received. But let us ponder upon the full meaning of this statement for a moment and consider just who is claiming ownership of the ‘higher moral standing’ here.
“These users need to be reminded that while the complaint is their own,
the investigation and adjudications are the ombudsman’s …” Rob Behrens