Law Commission proposes ombudsmen shake-up to make it easier to complain

Public service ombudsmen should be given a statutory discretion to dispense with the requirement that investigations be conducted in private, the Law Commission has proposed as part of a set of reforms aimed at making it easier for people to complain if they have suffered poor public services.

The government’s law reform advisory body suggested that existing procedures for making a complaint were “often outdated and inconsistent”.

Its proposed package of measures include:

• Removing the existing statutory bars on public services ombudsmen opening a complaint where the complainant has previously had recourse to another institution for administrative justice. The current legal presumption in the statutory bars would be reversed so that if an ombudsman has jurisdiction, “there is, on the face of it, a good argument for opening an investigation”.
• Introducing a stay and transfer power allowing matters to be transferred from the courts to the public service ombudsmen. The initial decision would be made at the permission stage, with the parties given the opportunity to comment on the procedure. This change would require a suitable amendment to the Civil Procedure Rules or with a Practice Direction. The ombudsmen would then be obliged to open an investigation.
• Handing the Local Government Ombudsman, the Health Service Ombudsman and the Parliamentary Commissioner for Administration specific powers to allow them to dispose of complaints in ways other than by conducting an investigation. The Law Commission said a power to use alternative dispute mechanisms would be “useful and appropriate”. Although the ombudsmen covered by the consultation have recourse to alternative mechanisms, the advisory body argued that all of the regimes would benefit from having specific powers.
• Requiring ombudsmen to publish a statement of reasons when they decline to commence an investigation or decide to abandon an existing investigation.
• Only allowing a public body to reject the findings in a report from a public services ombudsman if it has brought a successful judicial review action.

The proposals also cover what should happen when a public services ombudsman wants to refer a point of law to a court.

The consultation covers five statutory ombudsmen: the Parliamentary Commissioner for Administration, Public Services Ombudsman for Wales, and the Local Government, Health Service and Housing Ombudsmen.

The Law Commission decided against considering fundamental changes to the institutional design or identity of the public services ombudsmen.

Frances Patterson QC, the Law Commissioner leading on the project, said: “The public services ombudsmen have a vital role to play in providing remedies for administrative injustice suffered by individuals. By improving access to these ombudsmen, we can reduce the burden that falls on the citizen, public bodies and the courts, and realise savings for citizens and government.”

Responses to the consultation must be submitted by 3 December 2010. A copy of the consultation paper can be downloaded here.

The Law Commission can only recommend changes to the law of England and Wales. “In relation to Scotland and Northern Ireland, such provisional proposals as we make in our consultation paper form a commentary, to be taken up if so desired by those who have responsibility for those jurisdictions,” it said.