Should the Ombudsman have more powers? Consideration of powers: The National Assembly for Wales Finance Committee looks into strengthening The Public Service Ombudsman for Wales

Wales has a Public Services Ombudsman, whose role is to look into complaints about public services and independent care providers in Wales. The Ombudsman can also look into complaints that local authority members have broken their authority's code of conduct.

The Finance Committee of the National Assembly for Wales has recommended a new Bill should be introduced, giving the Ombudsman more power to deal with complaints from the people in Wales. The Assembly's Finance Committee has looked into the issue, and this is an at a glance version of the full report.

The current Ombudsman in Wales is Nick Bennett.

Examples of complaints that the Ombudsman might deal with are:

  • ambulances taking too long to arrive;
  • not diagnosing people’s conditions quickly enough;
  • housing applications mishandled;
  • failing to find the right education for children with special needs; and
  • social housing not being repaired properly.

How does the Ombudsman operate?

The role of the Ombudsman was created by a piece of law, called the Public Services Ombudsman (Wales) Act 2005.

This Act sets out how the Ombudsman's role works.

The Ombudsman has a team who help him consider and investigate complaints. The service of the Ombudsman is free and impartial, as the Ombudsman is independent from government bodies.

Why does the Ombudsman need more powers?

The Ombusdman (Nick Bennett) and his predecessor (Peter Tyndall) have both said the Ombudsman needs more power to properly deal with people’s complaints.

The Ombudsman, Nick Bennett, said that going forward, legislation should be:

fit for purpose and allow people to get the best out of our office, and to make sure that we do have genuinely citizen-centred services in Wales.
Nick Bennett in discussion with the Committee in December 2014

MAKING PROGRESS

The Ombudsman suggested five areas that he believed would strengthen his role:

  1. Own-initiative investigations
  2. Oral complaints
  3. Complaints handling across public services
  4. Increasing jurisdiction
  5. Links with the courts

THE FIVE EXTRA POWERS

1 - Own initiative investigation

At the moment, the Ombudsman can only investigate complaints that the public has sent to his office.

The Ombudsman would like the power to start his own investigations without receiving a complaint. This would allow him to extend investigations where there is evidence to suggest there could be a wider public interest issue.

Most witnesses supported this idea, and said it could help the Ombudsman look into an issue when he thinks there is a problem but hasn’t received a formal complaint, perhaps because a person is reluctant or scared to come forward.

The Committee believes the Ombudsman should have this power. However, there must be evidence to support an investigation and he should talk to other Welsh Commissioners and anyone else he think is appropriate before starting an investigation.

2 - Oral complaints

Currently, if someone wants to make a complaint to the Ombudsman about a public service they have received, they must put it in writing.

The Ombudsman's office has a Complaints Advice Team who help members of the public. If a person calls to make a complaint but is unable to put it in writing, the team will record the details and send it back to the person. It is the complainant’s responsibility to check, sign and return the form.

Only around 50 per cent of these forms are actually signed and returned by members of the public, meaning that 50 per cent of these complaints are never considered.

The Ombudsman wants to be able to receive complaints made orally. Nick Bennett said:

At UK level, 94 per cent of the population attain literacy level 1 or above, but in Wales it is only 87 per cent. Access to this service should not discriminate against people who cannot write.

Most witnesses supported the idea and felt it could help vulnerable people to make complaints.

The Committee believes the Ombudsman should be able to decide how complaints can be made to him (such as in writing, orally, etc) but he must issue guidance that sets out accepted methods.

3 - Complaints handling across public services

Today, public services (such as the NHS) can decide for themselves how they should handle complaints. The Ombudsman has developed a Model Concerns and Complaints Policy for public services, but public services can choose not to use it.

The Ombudsman wants all public services to use a standard policy, so that all complainants are dealt with in the same way. Nick Bennett said:

… all public services devolved to Wales should be operating a streamlined, two-stage complaints procedure.

The Ombudsman has suggested a similar model to Scotland, where the Scottish Ombudsman publishes a complaints handling policy, and all public services have to use it.

Most witnesses were in favour of a consistent approach to handling complaints by public services, and felt it is important to make the complaints process as clear and straightforward as possible.

The Committee believes that the Ombudsman should have a role in complaints handling, and should publish a model complaints handing policy for public services. Training should also be provided for staff in public bodies using this complaints policy.

4 - Increasing jurisdiction

Currently the Ombudsman has authority to consider complaints made against most public services in Wales. The Ombudsman can also consider complaints against private healthcare providers, but only if the treatment has been commissioned and paid for by the NHS.

The Ombudsman wants to extend his authority in this area. Nick Bennett said:

I am seeking powers for the Public Services Ombudsman for Wales to be able to look into care and treatment provided by a private health care provider where that care/treatment has stemmed from the NHS, or has been a part of a person’s health care pathway which has also involved the NHS.

There were mixed views on this idea. Most witnesses agreed that the Ombudsman should be able to follow a person's whole healthcare journey across public services, which may include private healthcare.

The Committee believes that the Ombudsman should be able to investigate the whole complaint when a patient has received combination of treatment from public and private healthcare providers, when that treatment has been initiated by the NHS.

5 - Links with the courts

At the moment, the Ombudsman cannot investigate a complaint if it could be considered by the Courts. Therefore a case should go to court rather than being investigated by the Ombudsman. The Ombudsman wants to see three changes:

  • removal of the "Statutory Bar" (allowing an individual to choose whether they go to court or to the Ombudsman to investigate a complaint);
  • "Stay Provision" (allowing a court to transfer a case to the Ombudsman to investigate);
  • "Point of Law" (allowing the Ombudsman to seek clarity on a legal point that might otherwise prevent an investigation).

The Committee heard mixed views on this idea from witnesses. Nick Bennett said:

IT IS RECOGNISED THAT THIS IS A COMPLEX AREA. IN GENERAL TERMS HOWEVER, THE PROPOSALS IN RELATION TO THE LINKS WITH THE COURTS SEEM TO HAVE BEEN WELCOMED.

The Committee believes as this is a complicated legal issue, more consideration is needed between the Welsh Government and the UK Government.

Other issues

The Finance Committee also looked at other areas of power that potentially the Ombudsman could have. For details, please see the Committee's full report, Consideration of Powers: Public Service Ombudsman for Wales. If you are interested to see what happens next, please visit www.assembly.wales/seneddfinance.

Jocelyn Davies AM, Chair of the Finance Committee, said:

Throughout this inquiry we heard a great deal of evidence, much of which has shown how important the Ombudsman’s role is. Undoubtedly we would all like to see a future in Wales that provides excellent public services but should that service fall short of an individual’s expectations, they need to have the confidence in the Ombudsman to investigate. We hope that should our recommendations be implemented this will enhance the role of the Ombudsman in Wales and increase public confidence.

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