Select Committee on Public Administration Minutes of Evidence

Examination of witnesses (Questions 20 - 28)



  20. So the answer was "No, thank you, I would rather not"?
  (Mr Buckley) Yes. A Sir Humphrey one, was it not, yes.

  21. I take it you would rather not turn yourself into a judge. I take it there are three reasons—have I got it right—why: you can investigate more quickly, you can investigate more cost effectively and you have greater and non judiciary-bound powers of discovery?
  (Mr Buckley) Yes. Technically it is the same power as the high court but we can get into departmental files and conduct investigations I think in a much easier way. Of course it is a non adversarial procedure. We investigate, my staff investigate, the issues that we regard as relevant in what we hope is the most cost effective way. Of course the courts must adopt an adversarial approach to the evidence that each of the two parties bring, that is the evidence before the courts.

  22. Courts seek certainty and clarity even at the expense of a lot of money and a lot of time. If you are to be distinctive from them, and I have named three areas where you might be distinctive, should not you be erring on the side of speeding up throughput even more, being a slightly rough and ready system rather than a quasi-judicial system in which everything comes to a final decision?
  (Mr Buckley) We have moved quite a long way in that direction. This is one of the areas where I think one has to look again at the legal constraints. We have talked quite a lot about those. There are some areas in which the legal constraints are clear and unavoidable. For example, if we propose to conduct an investigation we must by law send a statement of the content of the proposed investigation to the principal officer of the department and so on. That is unavoidable. There is a more subtle and pervasive assumption in the statute which is that we are there to do investigations. What the statute says—quoting from memory—is that for the purposes of conducting investigations in accordance with the provisions of this Act there shall be a Commissioner. There is the presumption we will investigate and produce a report, and once we have produced it, as functus officio we cannot go back from it. It does push one very much in the direction, as you say, of thoroughness and certainty and so on. Moving away from that, there are limits within the statute on what we can do. Of course, there are some types of cases where there are very large amounts of money or large principles at stake in which we do have to do a thorough job, both to persuade the department that what we say is right and to persuade the complainant that we have given the case a thorough hearing. I agree we are moving, and we are trying to move and we have moved and we may move further in the direction of not rough justice but producing a result with which all three parties are reasonably satisfied: the complainant, the department and us, without exhaustive examination. There are limits as to how far we can go.

  23. With that phrase of "not rough justice" somehow not in quite as grey a niche as rough justice, I would like to turn to SERPS. I would like to come on to your proposals for redress in a moment but first of all, just to clarify, what you discovered there was a serious maladministration. It infected large chunks of the department and the agency associated with it. You technically I think legally only have responsibility for looking at individual cases but when you come across something like this, is not part of your responsibility—or should not part of your responsibility be—to make proposals that can provide systemic redress, that is to say "This department has something systematically wrong with it. Here are some suggestions to put it right"? Or, to put that question more generally, should you not be in the business of creating a redress mechanism which will make your role ultimately redundant?

   (Mr Buckley) You are absolutely right, yes, Mr Tyrie, what the law says is that we start from individual complaints. In the particular case of SERPS we had well over 300 complaints. We technically investigated four as a sample. Very often where there are a significant number of cases, whether in SERPS or elsewhere, we will find that there are systemic problems. We will find out or be told that there are others in the same position and certainly we expect departments to put that right.


  24. Can I just interrupt for a second. This is interesting. It goes back, also, to what I was asking you about your four test questions. When you get 300 complaints on an area that suggests there is something really wrong with a department, do you go back to the 296 people and say to them "Actually your cases are quite as good as the other 300 but I am only going to investigate four because . . ." and you tell them. Is that how you proceed?

   (Mr Buckley) Well, in a sense, yes. What we did was to write to the referring Member saying "We are parking your case. We are going to investigate the thing as a general issue and produce a report under Section 10(4) of the 1967 Act so we will raise it as a general issue". In a sense, taking it wider, it was perfectly clear from a very early stage—it was not seriously contested—it was absolutely clear there had been serious maladministration on a very big scale. Therefore there was not much point in just looking at four or even 370 of the cases and saying "Do these and these alone". One had to be looking at a systemic—or if I can say, perhaps not entirely felicitously—a global approach. That was the only way in which one could be sure that all those who had been misled, or reasonably could say they had been misled by advice from the Department would secure adequate redress. The question of should we be recommending improvements in the system, well we do if occasion offers, but we are not management consultants. Of course, there was a particular problem with the investigation of the SERPS matter in that try as we might and try as the National Audit Office tried, we could not find out just why it had happened. We looked at the files and it was clear the mistake had been made but not why, so we could not. There was a very obvious basis but of course the NAO report did make quite a few recommendations. We were working in tandem with the NAO. Finally, I do very much agree with the proposition that one of the main things we should be doing is helping departments devise appropriate redress systems. Indeed, we mentioned the Immigration and Nationality Directorate of the Home Office in the memorandum, and of course the Committee took evidence on that some time back. That is precisely an area where we worked closely with the Directorate to produce a system of redress and many complaints have come forward. In fairness to the Directorate, it has been very willing to admit fault and it has got what we regard as a reasonable redress system which allows them to sort the case out quickly. I do not know if it will make us redundant. I am not sure if that is the Ombudsman's dream or the Ombudsman's nightmare to arrive on Monday morning and be told that everything is fine out there.

Mr Tyrie

  25. You say it is part of your role to make suggestions.

   (Mr Buckley) Absolutely, indeed.

  26. To prevent inquiries ending up with you.

   (Mr Buckley) Absolutely, yes.

  27. Now can I just ask one last set of questions about the whole SERPS issue. You made a number of recommendations on what the redress system should be, how much, what the level of compensation should be.

   (Mr Buckley) No, with respect—

  28. Tell me what you recommended.

  (Mr Buckley) What I recommended was essentially that there should be a global system. The Department does have a system of providing redress for people who have suffered by maladministration but the complainant has to make out his or her case with evidence and bits of individual information and so on. That was plainly not going to be practical in this case because the burden of proof was reversed. In the normal course of events departmental leaflets get it right, departmental staff in the local offices and the like are trained to give the right advice. We knew with SERPS that the departmental leaflet got it wrong. We knew that staff in the benefits offices had not been trained to give the right advice, they were giving the wrong advice and giving it up to a very late stage. Therefore anyone who had picked up a DSS leaflet or been to a benefits office had to be presumed to have been given bad advice. What we were saying is it is no good trying to pick and choose individual complainants, you have to do something which starts off from the proposition that the department is guilty of maladministration and you have to put it right. I made no recommendations about the level of compensation and it was one reason why I was rather cautious in my response to the Chairman's remarks. One does have to look at the detail of what is going to happen. Really what I was saying was about the principles of the scheme rather than the level of redress.

  Chairman: Thank you for that.

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