Background to PHSO

It is commonly held that 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 and to offer remedy and compensation in cases of maladministration.

The institution of the ombudsman, first created in Sweden more than 200 years ago, is designed to provide protection for the individual where there is a substantial imbalance of power. Ombudsman Association

But you need to bear in mind that in the UK the establishment of ‘The Parliamentary Commissioner’ in 1967 was preceded by the forced resignation of a minister caught in a scandal. From analysis of the uphold data it would appear that the Commissioner, now called the Ombudsman, has been protecting ministers, MPs and public servants ever since. In 2018/19, following investigation, PHSO upheld just 2.4% of all the complaints submitted. If resolution without investigation is taken into account this figure rises to 20%. Bear in mind that ‘resolution’ is often an apology from the public body complained about and no more. Those figures tell their own story. PHSO 2016/19 data chart

Historical background:

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. To prevent similar scandals the Parliamentary Commissioner Act was finally implemented in 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.

Since 1993 the Parliamentary Ombudsman also monitors health service complaints following the Health Service Commissioners Act 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 go through an MP. Following the demise of the Healthcare Commission in 2009, the Health Service Ombudsman became the only body charged with investigating individual complaints. 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

It is very difficult to win your case at judicial review and PHSO always claim costs confident that cases will be found in their favour. It was therefore something of a shock to PHSO when, in 2018, the High Court upheld a case against them taken by two GP’s who were funded by medical insurance. In the Miller & Anor V Health Service Commissioner for England, all aspects of the investigation process were criticised from the decision to investigate, pre-determination of the outcome, failure to consider all the evidence and an inadequate review process which failed to provide opportunity for all parties to contribute to the findings. kingsleynapley – summary of the findings

“The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases. There is no yardstick of reasonable or responsible practice but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful”. weightmans.com

Many members of the public would say the same about their investigation reports but unfortunately, do not have the funds to fight their case right up to the High Court. Effectively the Ombudsman is unaccountable to the public as direct complaints are handled internal by PHSO themselves, parliamentary scrutiny does not extend to individual cases and access to the law is limited by funds and the narrow parameters of judicial review.