27 March 2019

Marcus Shepheard argues that if the Ombudsman is to be truly effective it needs more power to investigate failings, not just adjudicate complaints.

While the role of the Ombudsman has existed for years, if it is to stay relevant then it must continue to develop. The organisations that fill the role today, bodies such as the Parliamentary and Health Services Ombudsman (PHSO), have not yet fulfilled their full potential – and will not be able to do so unless the Government embraces reform.

To be truly effective, the Ombudsman needs to do more than adjudicate on complaints submitted by others. Instead, it is time for the Ombudsman to be given the power to initiate its own in investigations.

To investigate or merely adjudicate?

PHSO’s current role is to makes final decisions on complaints unresolved by the NHS in England and UK government departments. However, evidence submitted to a Public Administration and Constitutional Affairs Committee (PACAC) enquiry into the role of PHSO argued that it should stick to its core remit of simply adjudicating complaints. Most investigations that PHSO undertakes are health-related and are particularly complex and expensive to run. Respondents argued that these resources would be better invested in frontline casework. 

However, simply adjudicating on individual complaints means a major opportunity for learning is lost. Our recent paper argued that an effective system of accountability is one that promotes learning ensures that successes are repeated and failures are avoided in the future.  While the new PACAC report rightly highlights the progress made at PHSO, it also concludes that “it is right to consider” how else the Ombudsman  “can improve public services and potentially prevent people from suffering harm or injustice in the first place”.  These questions could apply equally well to related bodies such as the Local Government Ombudsman.

It is time to get rid of the MP filter and give PHSO real investigative powers

Increasing the effectiveness of the Ombudsman requires reform. For example, the ‘MP filter’ - an arcane term of great importance here - creates a requirement that any complaints to PHSO about Parliament must be made through an MP. This means that, in the absence of a referral, the Ombudsman cannot investigate on its own initiative. This creates an arbitrary barrier that prevents the Ombudsman from investigating failures, for example the Windrush scandal, unless it is asked to by an MP. Removing the MP filter would shed an arbitrary hurdle that currently limits accountability.

Similarly, as we have recommended previously, it is time for the Government to bring forward the Public Service Ombudsman bill that has been languishing since 2016. This is a key piece of legislation that would give the Ombudsman new ‘own motion’ investigative powers.

These new powers would permit the Ombudsman to use their experience and intuition to investigate clear cases of Government failure in the absence of a specific referral. This would benefit both PHSO and other Ombudsmen – in fact one of the purposes of the bill is to merge PHSO with the Local Government Ombudsman to create a single, stronger body. This is a move that both organisations support.

PHSO and the other Ombudsmen are a key component in our system of accountability. However, if they are only permitted to adjudicate complaints then their effectiveness is limited and the system of accountability is not strong enough. It is time for a rethink and time for reform. The Ombudsman needs to be given the power and freedom to initiate and carry out their own investigations.

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Comments

As a repeated victim of the PHSO since 2011, I genuinely appreciated your comments about the legislation and the remit of the Ombudsman.

In your last paragraph you write that "system of accountability is not strong enough". Did you mean the lack of accountability in a Complaint that is progressed the PHSO for Resolution or has your research led you to question the lack of accountability of the Ombudsman due to the legislation behind the Ombudsman?

My apologies if I have not best understood your last paragraph. Many thanks