House of COMMONS
MINUTES OF EVIDENCE
PUBLIC ADMINISTRATION COMMITTEE
Thursday 27 November 2003
MS ANN ABRAHAM
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Taken before the Public Administration Committee
on Thursday 27 November 2003
Tony Wright, in the Chair
Sir Sydney Chapman
Mr David Heyes
Mr Kelvin Hopkins
Mr Ian Liddell-Grainger
Mr Gordon Prentice
Examination of Witness
Witness: MS ANN ABRAHAM, Parliamentary Commissioner for Administration and Health Service Ombudsman for England, examined.
Q1 Chairman: Can I welcome our witness this morning, who is Ann Abraham, the Parliamentary Health Service Ombudsman. Could I say on behalf of the Committee how nice it is to see you. It is just a year since you have been in post, and we congratulate you on your first year; we look forward to doing business with you; thank you for coming along this morning. Would you like to open the session by saying something about the pattern of your work over this period?
Ms Abraham: Certainly, Chairman. You have my memorandum in which I have set out a review of my first year in office, and I do not intend to take time this morning by reading that to you word for word, but what it does do is set out the areas of work, the issues which have been occupying us and the emerging trends in new complaints and what that means about likely future areas of work, and there is reference in there to continuing care, to child support issues and to tax credits. What I have also tried to do in the memorandum is set out what we are doing in working towards a continuing improving, accessible, modern and responsive Ombudsman service and seeing that very much as contributing to the improvement of public services more generally, and doing that both in our internal change programme and working with other public sector Ombudsmen in the United Kingdom. So I have tried to give a comprehensive picture of the past year but I am very happy to answer questions. What I do not want to do is read the memorandum in full. So there is nothing more really by way of introduction from me on the review of the year and I am happy to answer questions from the Committee. I probably should just say something specifically about Equitable Life which does feature in the memorandum. I do want to be as helpful as I can this morning in responding in general terms to any questions from the Select Committee but, as the Committee knows and as I said in the memorandum, I am currently the defendant in High Court judicial review proceedings brought against me by two representatives of the Equitable Members' Action Group, and those proceedings question the legality of my decisions in relation to the Equitable Life report. The grounds of challenge run to fifty pages: they question my decisions in relation to scope, jurisdiction, process, evidence and conclusion, so they are extensive and, whereas my legal advisers tell me that the grounds of challenge are without legal merit, I am sure the Committee will understand that as the defendant in those proceedings, I am under some constraints this morning. But I will do my best nevertheless to respond to questions from the Committee and, if there are matters which I am unable to deal with this morning, it may be that I am able to deal with them in writing subsequently.
Q2 Chairman: Thank you. Obviously we shall want, as far as we can, to ask some questions about Equitable Life. Perhaps I could just say on that that we have taken the advice of the House authorities as to whether, if the Committee questions the Ombudsman on the issue of her report on Equitable Life, this could be seen as prejudicing the judicial review of the matter, proceedings for which have been commenced by the Equitable Members' Action Group. There is a longstanding and important principle that, to quote a 1999 Joint Committee on Parliamentary Privilege report, "the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament". Erskine May makes it clear that public comment in Select Committees should not prejudice what it calls "matters that are waiting judgment". There is clearly a danger that this could happen in this case if we persisted with detailed questioning, and the risk of unfairness is the greater because the Ombudsman is the defendant in this case. However, there is also the important constitutional right of Parliament, again to quote the 1999 Joint Committee report, to "discuss any matters it pleases", and in the public interest we are reluctant to accept any restriction of that right, however sound the reasons appear to be. We would deprecate attempts by any party to use the judicial review to delay or avoid Parliamentary scrutiny or, indeed, to gain any legal advantage. We are determined as a Committee to investigate this issue, and will do so. If the Ombudsman, and I am sorry to put this rather formally but I think it is important to put it on the record, persists in refusing to answer our questions on this issue, we will seek her assurance that she will answer them as soon as possible after the conclusion of the judicial review. We will also be making, as is our right, a special report to the House to indicate our unhappiness with this situation in which we find ourselves and to draw the House's attention to an unsatisfactory state of affairs. I hope that both recognises that we are in a particular situation, because of the prospect of pending legal action, but also seeks to defend the right of the House to question an officer of the House about an investigation that she has undertaken, and we will have to find where the balance lies in that. As I have said, we would like, as you have said, to return to these issues as soon as we properly can. Having said that, could we just try to go as far as we can this morning? There was, was there not, huge expectation amongst Equitable members about the prospect of an Ombudsman investigation, above all because it was only through the Ombudsman that any prospect of redress seemed to be possible and people looked back to previous Ombudsman investigations, things like Barlow Clowes, and said, "Here is the hope for getting someone inside the system who maybe will be able to produce redress for us". Was that, do you think, a realistic expectation?
Ms Abraham: I hesitate to say my first instinctive response which is "That depends". Of course, the Barlow Clowes investigation and report had the result that it did and, therefore, it is entirely possible and reasonable for complainants to think that the Ombudsman is a route to redress. I would be very concerned if complainants did not think in general terms that the Ombudsman was a route to redress and obviously my office can point to a range of investigations where that has been the case. The difficulties in relation to this investigation are well documented in memoranda that this Committee has seen from my predecessor and from me about the extent to which the Parliamentary Ombudsman could look at all of the events and all of the parties involved, and that is why Sir Michael Buckley, I think from the outset, advocated a full inquiry which would cover all the issues. I suppose the other thing I would say is that I do not in any way see that my office is the only possible route to redress. Obviously we will all wait to see what Lord Penrose has to say and I have no more information about what he is likely to say than anybody else, but certainly it seems to me that he has made it clear that he is prepared to make adverse findings, albeit not to determine legal liabilities. There will be a response to any adverse findings that he does make from the government in due course, but I do not want to speculate about what might be in that. Your question was about whether it was unrealistic to come to my office to seek redress in this situation and, no, I would not say that it was unrealistic. The reality is that we have investigated; I have not found maladministration; and that is, at the moment, where the position rests.
Q3 Chairman: Could I just take this a little further? I was struck by a section of a letter which you wrote to one member, Francis Maude, a few weeks ago, taking up representations from someone on the Equitable issue, and you explained to him, as indeed you did to the House and in your report, about the restriction, the limitation that you felt you were under, that prevented you, you believed, going any further. Then you say that you were strengthened in that conclusion by a further matter. You say, "In the event that I were to find maladministration by a body within my jurisdiction, I would be required to consider whether that maladministration had caused injustice and whether the injustice had been or would be remedied. I concluded that it would be impossible for me to decide to what extent any maladministration identified had either caused or contributed to the injustice alleged by complainants in a situation where I was not able in law to investigate the actions of all of the relevant parties." The reason I pick that out is that I wonder, reading that, whether you had decided, because you could not do the whole follow‑through, maladministration leading to injustice, so you believed, and because you were only doing part of the picture, that one of the operating principles of ombudsmanship, as it were, could not be fulfilled in this case. Is that really what you are saying?
Ms Abraham: I think in this case, yes. It is not the case that I could not actually use my powers to look at documents, interview witnesses ‑ I have extensive powers ‑ but what I could not do is make findings against bodies not in my jurisdiction, and I think that is the key point in this. If, and again this is speculation and I would say, again, that I have not found maladministration in relation to the bodies within my jurisdiction that I have investigated, but had I done so, but it was contributed to by a range of other parties, I would not be in a position to make findings about apportioning the responsibility and I would not be in a position, I think, to take that any further. Certainly that would be a factor but I come back to the point that in my investigation I had not found maladministration. Can I perhaps illustrate this with a slightly different example which is intended to be helpful? If I were looking, wearing my Health Service Ombudsman hat, at an issue which had health and social care issues in it and I felt, as a result of my investigations, that there were matters which were more properly within the jurisdiction of the Local Government Ombudsman, I have powers to share information about with the Local Government Ombudsman and we have a joint commitment to giving complainants a single point of reference in those sorts of situations, so I would be in a position to do something about that situation. In this case, however, I do not find myself in the same situation. I do not suppose, therefore, I would see this in your terms, Chairman, as an absolute obstacle to ombudsmanship, but I do think that the fact that my jurisdiction extended only to prudential regulation and not to conduct of business regulation, not to Equitable itself, was a major factor in my ability to shed light on the whole picture and, in the way that Lord Penrose has terms of reference to look at all of the events and all of the parties, it seems to me that he is much better placed than I have been.
Q4 Chairman: Does this mean, just to pursue this a little further, that even if you had found maladministration in the particular period in the particular domain that you had looked at, you would not have felt it possible to go from maladministration, to injustice, to remedy because of these limitations that you have talked about?
Ms Abraham: I would not want to say that I could never do that, and it is highly speculative because I have not found maladministration and therefore I am dealing entirely in an abstract sense with your questions, but I understand why it is posed in that way. I would not want to rule out the possibility, if I had found maladministration, if I could see clear injustice and I could see that there was a bigger picture, of wanting to see what I could do to ensure that the bigger picture was being properly considered, but in this case Lord Penrose is looking at the bigger picture and, therefore, it seems to me proper to recognise that and to recognise the limitations on my position and my jurisdiction.
Q5 Chairman: So, despite the letter to Francis Maude that I read to you which seemed to indicate you were unhappy about getting into the justice remedy area because of the limitations, you are saying that that is not quite so, and, in fact, if you did find a certain kind of maladministration, notwithstanding the limitations, with the benefit of someone else looking at a larger picture, you might be able to look at the injustice and remedy side of this.
Ms Abraham: When I was writing to Francis Maude I was writing about this case. What I am trying to do this morning is not put myself in a position of saying that in different circumstances I would never do this, and I have tried to use the context of, perhaps, a situation where public service providers should be acting in a joined‑up way and trying to do joined‑up ombudsmanship in that context, where I think I am perhaps better placed than I am here because of specific powers and specific relationships, and therefore I do not want to rule out the possibility of trying to achieve a remedy in a whole range of other circumstances. When I was writing the letter you refer to, Chairman, I was talking about these circumstances and about a situation in which Lord Penrose was already a very long way through an inquiry which was looking at the whole picture.
Q6 Chairman: Just so we are clear, your present position, as you have said it in writing to members, is that when Penrose has reported and the Treasury has responded to Penrose, it might be possible ‑ it depends what comes out of that ‑ for you to revisit this area and to go into an earlier period?
Ms Abraham: What I have said, and I am sorry if any members were confused by the situation and I did write to clarify my position on 12 November, is that the decisions I made when I issued my report were based on the evidence before me at the time and, as with any completed investigation, whatever the subject matter, if new evidence came to light that had a direct relevance to my findings, then of course I would consider that. I suppose I made the assumption, clearly wrongly, that that was so glaringly obvious to me that it would be glaringly obvious to others and it clearly was not, and I am sorry if anybody was confused by that. What I have said, however, is that I will give consideration to the position following publication of the report of the Penrose inquiry and the Government's response to that, and I will give a decision at that stage as to whether I will carry out any further investigations.
Q7 Chairman: That is very helpful and, from what you said earlier, there is no reason to think at this stage that, if that was to happen, it would not enable you to get into areas of injustice and redress.
Ms Abraham: I cannot speculate this morning. We do not know what Lord Penrose is going to say ‑‑
Q8 Chairman: But you are not ruling it out?
Ms Abraham: I am not ruling out what, just to be clear? I do not want to mislead you in my answer.
Q9 Chairman: You are not ruling out what I called earlier something like the whole operating principles of ombudsmanship, which is that maladministration, injustice and redress are all part of the package, so you are not saying that only a restricted part of the package might be available in this case?
Ms Abraham: No, I am certainly not saying that I will not look at maladministration, injustice and redress in the round.
Q10 Chairman: Good. Finally, I got the impression from your predecessor ‑ indeed, I think he may have said it on the record to us here ‑ that in some ways he was very dissatisfied with the prospect of having to do this inquiry into Equitable Life anyway, for the reason you are saying, which is that you are only looking at a part of the picture and you have these restrictions on your jurisdiction, and I think he felt this was not the way to do a proper inquiry into a matter of major public interest and that it really did need a comprehensive inquiry that could look at everything and recommend anything as the only way to proceed. Is this not the core of our difficulty here?
Ms Abraham: That depends on what Lord Penrose says in his report, I think.
Q11 Chairman: Is that a "Yes"?
Ms Abraham: It is an "I do not know". Certainly if we were going back and looking at the situation again I am absolutely certain I would be saying exactly the same things that Sir Michael Buckley was saying about the need for a comprehensive independent inquiry in the terms that you have described, and we do not know what Lord Penrose is going to say yet, and we do not know that we have not got that yet.
Chairman: Thank you for that.
Q12 Annette Brooke: Following on from that point for a moment, the time delay ‑ and I should congratulate you for keeping to your timescale on your report ‑ on Penrose is clearly not helping the situation at all at the moment with people not trusting the full independence and how the Treasury is going to respond. Would it be within your remit at any point in time to consider whether there has been a truly independent inquiry, and whether that would be considered as maladministration if there was not a full response from the Treasury and that sort of thing?
Ms Abraham: Goodness me! Obviously what I would have to be looking at would be a body which was within my jurisdiction and certainly the Penrose inquiry as such is not within my jurisdiction but, if there were to be a complaint about maladministration in relation to how the Treasury or a government department responded to that, that would be something I would have to look at.
Q13 Annette Brooke: And would the timeliness of the inquiry, insofar as I do not know whether it needs more resources or not, come within your remit? Suppose we get told next spring that it is not going to be until next autumn, surely there must be something somewhere that does require an inquiry to give some preliminary indications, at least?
Ms Abraham: I have no more information than anybody else about this but I understand that Lord Penrose is due to report shortly, so I hope we are not going to be in that situation.
Q14 Chairman: Do you happen to know how shortly "shortly" is, by the way? We have been talking about "shortly" for a long time? What is "shortly", do you know?
Ms Abraham: I do not have any better definition of "shortly" than I am sure you do.
Chairman: I just thought I would try!
Q15 Annette Brooke: I have brought along this morning a selection of letters which I would like to hand to you personally because I, like every other MP, have been bombarded with an enormous range of questions because of the length of time this has been going on with no answers in what is obviously a very unsatisfactory situation and I wondered if I could just read out two of these questions ‑ not for you to answer them but to look at the principles, and then I will hand you the questions. One question from one of my constituents is, "At 31 December 2000 the assets of Equitable Life fell short of policy values by between 10 and 13 per cent. Can you please ask the Parliamentary Ombudsman to investigate what action the FSA took to warn policyholders when informed of this shortfall?" I understand from your previous answer that financial issues are not your remit, but there is a process in terms of the FSA taking action and I wanted to ask you whether that sort of question ‑ it does not matter about the particular question now ‑ comes within your remit?
Ms Abraham: These are matters that are dealt with in detail in my report. I am very happy if there are letters that you want to hand to me and I will look at them, but I think dealing with questions of detail like that this morning is not something that I am really in a position to do. Also, I am not sure I understand the general question behind that.
Annette Brooke: I want to be constructive this morning so any questions we do not answer I am happy to leave on the table, as long as we can revisit them.
Q16 Chairman: I think Annette was wondering whether this was a conduct of business question or a prudential regulation question, as a category of issue.
Ms Abraham: The report does deal in detail with the chronology: it deals, in order to give the fuller picture, with some of the conduct of business activities, but I think it is a complex answer. If it would be helpful and Ms Brooke wants to leave the letters with me then I am happy to respond in writing, but I think it is a point of detail that I do not want to give the Committee an incomplete or a misleading answer on this morning. I would rather deal with it in writing at a later stage.
Q17 Annette Brooke: I am happy to do that. What I want to do this morning is bring out the principles from the bombardment of questions, and I think there is this clear principle that people do not really understand out there in the wider context why something is within your remit and other aspects are not. When we are looking at processes rather than the detailed financial regulation, I am interested to confirm when that is your remit. A lot of the questions I have here relate, not surprisingly, to the period before 1999, and I did ask you at some length about this when you came before. Clearly this continues to haunt us ‑ that in that time period we clearly had the Treasury or the DTI who were responsible for regulation. We will presumably have some information from Penrose about that period but, again, my constituents are asking me questions why the FSA recommended certain things. Again, I see this as the FSA taking decisions more on the business administration rather than the actual financial aspects and my question really is, will you really be getting to grips with all of these aspects of how Treasury, DTI, FSA or whoever, actually processed? They had information, but they either did or did not convey it to policyholders. It seems to me that it is in that area, which is not financial regulation but the process of how a body is working and how it is communicating, and my question today is can I be sure that you will look at all these issues very carefully at a point you feel you can?
Ms Abraham: I am not sure I can give you the assurance that you are seeking. Clearly there is a fundamental point about my jurisdiction in relation to prudential regulation rather than conduct of business regulation, and I understand entirely why the Equitable policyholders' and recipients of financial services would think that was a distinction that is sometimes difficult to understand, but I am in a position where my jurisdiction is about prudential regulation and a lot of the misunderstandings around my position do stem from that. However, I come back to what I said last time, and I looked up the minutes of my last appearance, Chairman, and what I noted at the end of the discussion we had last time on Equitable Life is that you asked me to confirm that I had not closed my mind to pre 1999 investigations if the case for that seemed to emerge from my current inquiries. Now, the case for that has not emerged from my current inquiries and, as I have said, I have not found maladministration, but what I have said is that I will consider the position again when Lord Penrose has reported and that is the point at which obviously I will look at what Lord Penrose has to say and I will look at whether what he has to say has direct relevance to my findings, and that is the point at which I will make a decision on these matters. So I cannot give you the assurance today that I will look at these things but I can give you an assurance that I will consider whether I should look at these things after Lord Penrose has reported and the government has responded.
Q18 Annette Brooke: I have one further question which, again, I will put in a general sense but it is slightly difficult, I must admit. I understand there are issues about which bodies you can look at and the Government Actuary's Department comes up in this. In the course of looking at the Civil Service Act we have had many discussions on what constitutes a civil servant, and Sir Nigel Wicks gave us a very interesting example about an immigration official on the front line who should be included within the Civil Service. Now, I cannot understand why you have a limitation as we go down the line in this process of regulation as to why it is not within your remit. Perhaps we as a Committee need to come up with a clear definition of who exactly comes within the Civil Service. Have you had problems with defining the scope of your investigation, or has it been absolutely clear‑cut to you?
Ms Abraham: I have to say in relation to the Government Actuary's Department it has been absolutely clear‑cut to me. I would love to come back and debate the definition of a civil servant in this ‑‑
Q19 Chairman: We may not invite you!
Ms Abraham: Because that is of considerable interest to me, but in terms of the specifics of the Government Actuary's Department this is one of the issues which is part of the grounds of challenge to my decision, and it is a fundamental point about jurisdiction which is a legal point and, if permission is granted and it does go to judicial review, it will be decided but we took the view that the Government Actuary's Department was outside jurisdiction for some very clear reasons. Firstly, it is not listed in the bodies within jurisdiction in Schedule 2 to the Act; secondly, when the Parliamentary Commissioner Bill was introduced to Parliament in 1967, notes on clauses expressly said that Government Actuary's Department was not within jurisdiction; there are two cases from my predecessor in the 1970s where he again took the view that the Government Actuary's Department was outside jurisdiction; and all of the documentation and the knowledge on this we have been able to find describes Government Actuary's Department as a separate department rather than subordinate to the Treasury, so we think the position is clear‑cut but obviously it is being contested in the legal proceedings and it is a legal issue which will be decided by the court in due course.
Q20 Annette Brooke: So if there is an appropriate time you will come back and debate that with us?
Ms Abraham: If the court decides on my jurisdiction in relation to the Government Actuary's Department, that is that. It is a legal point.
Q21 Chairman: Just on that last point, is there not a point, though, that rather like you wanting reform of the Ombudsman system so that you can follow complaints wherever they might lead, is not the same logic here that you really ought to have the ability to follow complaints across government wherever they might lead, and not be detained by arguments about whether something is in or outside jurisdiction or not?
Ms Abraham: I agree in that I absolutely fundamentally believe that there should be proper coverage within the jurisdiction of an ombudsman of all of the activities of public service providers in government, and there should be clarity, the jurisdiction should be kept up to date, it should be comprehensive and it should be relevant. There has been a lot of work undertaken in recent months to update Schedule 2, and an Order in Council I believe is before Parliament at the moment. So I am very much of the view that jurisdiction should be comprehensive and appropriate but if the law says that this is not within my jurisdiction, and presumably if there was a particular reason for that which Parliament accepted in 1967, then it is not really not for me to act differently. But I would like to turn this upside down. I would like to say that rather than have a list of departments that are in, there should be a list of the departments that are out and the reasons for it, and that would perhaps prevent some of the difficulties that arise when new bodies are created and the specific action that needs to be taken to bring them within my jurisdiction is overlooked or happens somewhat belatedly.
Chairman: When we get our fundamental reform to the system, we shall get that but we may come on to that a little bit later on.
Q22 Sir Sydney Chapman: The question I would like to ask has been covered but I would like to come back to it very shortly. First, though, I think it would be worth putting on record that Ms Abraham sent us a legal opinion about a possible impending case where she is the defendant and that, therefore, the matter was sub judice. We have also received a legal opinion from the Equitable Members' Action Group to say that they thought we could ask any question and it was not sub judice and basically, through a motion passed in our House in 2001 following a report of the Joint Privileges Committee of both Houses of 1999, we have to make a decision based on that report, and I think that detail ought to be known. But I want to ask one other question: from listening to you, Ms Abraham, answering both Annette Brooke and the Chairman, you have the power to investigate any action by a government department. Do you not think you ought to have the right to investigate any action taken on behalf of a government department irrespective of, as has been mentioned, the Government Actuary's Department, as you have said specifically that the law says you cannot look into that? Do you not think it is inconsistent, almost unfair, on any constituent of ours, if you have this what I would have thought was unacceptably limited privilege to investigate?
Ms Abraham: Can I say two things? I will come back to the point about action taken on behalf of a government department because it is very important but, if we are talking about matters for the record, certainly my legal advisers did write to the Clerk to the Committee but we did not for a moment suggest that we would be advising the Committee what was and was not sub judice, and what was and was not appropriate for them to be asking me. What my legal advisers did was write and set out for the information of the Committee the facts of the legal proceedings, so I very much take the view that it is for the Committee to decide what is appropriate for the Committee to do and I will take a view about what is appropriate for me to do ‑‑
Q23 Chairman: Could I make it clear too, and I thought I had at the beginning, that you had given us legal advice on this. We did not accept that legal advice; we sought our own advice from the House authorities. It was out of that that we came to a position where we wanted to go as far as we could without causing prejudice to the prospect of legal proceedings, so to avoid any misunderstanding that is the context.
Ms Abraham: I do not want to be pernickety about this but I do not believe that we did give you legal advice at all, or would have presumed to do so. We gave you information and what the letter said was "the information contained in this letter", so we told you the facts of the legal action but we certainly did not presume to ‑‑
Q24 Chairman: No, I was not meaning legal advice in a formal sense. You wrote to us with a description of what you took the situation to be. We took that further and made sure that, from the House of Commons side, we could go as far as we could go and that is the context in which, indeed, we are having this exchange this morning.
Ms Abraham: As you say. Coming back to the point about bodies acting on behalf of a government department, in principle I would accept that but in relation to the Government Actuary's Department the Government Actuary's Department, as we understood the position, had no responsibility for the exercise of statutory powers on behalf of the FSA or the Treasury under the Insurance Companies Act, so that is not the situation that the Government Actuary's Department were in here.
Q25 Sir Sydney Chapman: But at the very least, and I do not want to put words into your mouth, whatever powers you think you should have, surely you should have a certain discretion beyond the very strict powers that may be given to you, because the world is different in different issues and it seems to me that you have been put, or you are claiming you have been put ‑ and I accept your word for it, in a straitjacket, in a very limited straitjacket, almost as if you are forbidden from looking over the wall?
Ms Abraham: I love enabling wide‑ranging legislation and wish there was more of it, and I also very much take the view when looking at my statutory powers that, if the legislation does not say I cannot then I will see if I can, but I think in relation to the Government Actuary's Department there is so much very specific evidence to support our interpretation of the jurisdiction here, and I think the notes on clauses that accompanied the Bill, which made it very clear that the Government Actuary's Department was not to be within the jurisdiction of the Parliamentary Commissioner, do seem to me to be very clear. At the end of the day, however, given where we are now, the question of whether a complaint has been duly made is a matter for me according to the statute. Obviously if I am challenged on that as I am being challenged now in this legal action it will be for the court to decide whether I have correctly taken a view on my jurisdiction here.
Chairman: Do colleagues have any further questions on Equitable Life?
Mr Liddell-Grainger: I do apologise for being late ‑ I had to go to another meeting ‑ but have we asked the Ombudsman to come back?
Mr Liddell-Grainger: And has she agreed to?
Q26 Chairman: We have done rather more than asked, I think ‑ we have announced an intention to have her back.
Ms Abraham: I am happy to come back.
Q27 Chairman: Perhaps I could just say listening to your last answer that in some ways it is rather unfortunate, that you have taken so much flak on this issue when all your instincts in the rest of your activity is to push against all the boundaries that you find yourself constrained by, and indeed wanting to remove some of them, so this is a rather particular case but because it is a one that has such wide‑ranging implications and such consequences for individuals, and indeed for the people we represent, you will understand why we want to come back to it.
Ms Abraham: I fully understand. It is an important case and it is a case that obviously is of enormous concern to many people so I fully understand, and I am happy to give the assurance that, if invited, I will come back at the conclusion of the judicial review proceedings as you asked at the beginning.
Q28 Brian White: A lot of people, when you do a report that says "We cannot take this any further generally", have a feeling of helplessness and they do not know where to turn to. What is your advice to Equitable members as to where they should turn, following your report?
Ms Abraham: I would not presume to give Equitable members advice and I think in the circumstances it would not be appropriate for me to do so. There are clearly a number of groups who are active in the field and Equitable members will have to make their own decisions about that, but really it would not be appropriate for me to give Equitable members advice in the circumstances, particularly as I am the defendant in legal proceedings now.
Chairman: That brings us back to where we started and I think that is probably as far as we can go for the moment on that. Could we turn to all the other areas of your work, because there have been some very important issues around during this first year and I know colleagues will want to explore some of them.
Q29 Mr Liddell-Grainger: Can I explore the MP filter? It is something that I was keen to get rid of and I am not sure now it is such a good idea, because one of the things MPs have been able to do is see what is going forward to you. Now, the MP filter, I think most MPs will agree, can be fairly demanding ‑ and I have had a particular case which you have been very helpful with where, in fact, I got it wrong and you got me out of a mess ‑ but having said that the filter does give us a very clear idea of what you as the Ombudsman are up to. You have very kindly come in front of us but we are a privileged few MPs, and there are 600 of us in all. Are you still for the filter disappearing?
Ms Abraham: The simple answer is yes.
Q30 Mr Liddell-Grainger: Can we explore further as to why?
Ms Abraham: Absolutely, but I would like to come back to the whole question of the relationship of my office with Parliament and how we continue to ensure that MPs know what my office is up to and what we are doing without the MP filter. Why I am for its removal is because I believe that in the 21st Century it really is not defensible for citizens not to have direct access to a public sector ombudsman and I believe, apart from the UK, the only other country where this is the case is France, so I think there is a point of principle here. However, having said that, I fundamentally believe that there is a huge amount of very valuable work that goes on by MPs, MPs' offices, MPs' surgeries in actually referring cases to us and there is nothing to stop that continuing, but I do not see why it should be an absolute requirement. I am strengthened in this by some research that we did jointly with the Local Government Ombudsman recently looking at public awareness of ombudsman services, looking at issues of access, looking particularly at disadvantaged communities and the sort of people who use the office and what came out of that is a very clear indication that we need to be much more externally focused as an organisation in ensuring that our services are accessible. Certainly if you look at the groups of people who are less inclined to use our services, the unemployed, the unskilled, people in black and ethnic minority communities, these are the people who said in that research that if it was a question of putting a complaint in writing, actually referring it through an MP, that might deter them from approaching the office. That is obviously something that we need to be addressing. The fundamental point is, I think, about accessibility and there are issues as well in joint working with colleagues in the Local Government Ombudsman scheme where the MP filter gets in the way of aligning a joint investigation and a joint report because of particular requirements that come out of that, so it is a point of principle, I think, in the 21st Century that a system should have direct access to the Ombudsman.
Q31 Mr Liddell-Grainger: The thing that concerns me exactly on that, and you made a very valid point there, is that people do not feel that they are going to come to you if there is an MP in the way. Now, I come from rural Somerset ----
Ms Abraham: I know it well.
Q32 Mr Liddell-Grainger: I guarantee that they are not going to come to you from rural Somerset. They might come to me to ask me to take it up with you because in Exmoor they do not particularly like London, with no disrespect to anybody here, and they do not like government because they see a lot of bureaucracy, that it is all based somewhere up here and it sort of happens. Unless there is a rugby tour going on, they do not come up here. Is that not the problem, that in fact your research may be flawed because the very people you want to get to are the least likely actually to come and take part in that research?
Ms Abraham: Well, we went out, and I am not sure whether we went to rural Somerset, I will check, but I know rural Somerset well because I have family who live there, and there are a number of points in here. I think one of the most important is that the removal of the MP filter does not mean that MPs will never refer a case to my office again. I would expect MPs to be a major source of referrals to my office in the same way as we look to advice agencies, the places where people go if they have a problem. They go to advice agencies, they go to MPs and they do not automatically come to us, so we have got work to do in reaching out to advice agencies, to disadvantaged communities and we need the help of MPs with that. I am not saying that this is taking MPs out of the picture. What I am saying is that it is an inappropriate and unnecessary additional stage. Can I come back to this point about the relationship of my office with Parliament because it does seem to me that I was hearing very recently, in fact when walking up here this morning, that it was only in 1998 that the remit of this Committee was changed to having much wider terms of reference and that before that my predecessors used to come once a week and talk to this Committee. Now, it seems to me that it is important to think about in those changed circumstances how my office has an effective way of communicating clearly with this Committee, but also with Parliament generally about the work that we do other than on set piece occasions like today. I am very interested to discuss with the Committee ways in which we might actually provide more information, put more information in the public domain about our work and actually ensure that Parliament does understand what we are doing, what we are up to and can actually ensure that Parliament is very much aware of what the office, which has obviously been created to deal with the problems that citizens have in their disputes with government on administrative matters, that Parliament is very much aware of what we are doing, that we are accountable and that we are giving out a lot of information, so I am interested in exploring the relationship. One of the things it seems to me is that this Committee has the overview of these broad issues around ombudsmen, about ombudsman reform, about what is a proper ombudsman service in the 21st Century, but there are other committees who are very interested in some of the specific issues around health, around work and pensions that we do not have a relationship with at the moment and we do not provide a lot of information to and maybe we should, so I want to think about the relationship with MPs and with Parliament more generally.
Q33 Mr Liddell-Grainger: Is that not the problem you have got? We live with these problems the whole time as MPs. It does not matter which part of the country or what you represent, it is the same problem. The same problem goes for Scottish MPs and all the rest of it, it is the same principle. When you come back once a week, I think we will get bored of each other fairly rapidly, but the point you make is a valid one. Surely the relationship with Parliament has to be one that steers you and your organisation, your body, in a direction that can actually help and surely we have a very good insight into what goes on. The CABs, district councils, county councils and all the rest of it can point you, but yet we tend to cross a much broader spectrum of organisations given what we do. Perhaps the answer would be that a minister has to come before the House on a yearly basis to give us a synopsis of exactly what the Ombudsman has been up to and you commit yourself to coming here to purge yourself of your crimes for the year maybe or whatever.
Ms Abraham: Well, I certainly would not see it in terms of purging myself of crimes, but I do think that there is much more that my office can do to put into the public domain, the parliamentary domain and the government domain feedback about what we have been doing. One of the things that my Local Government Ombudsman colleagues are exploring is what they call an 'annual letter to councils' in that as well as the individual cases on which they report, the Commission for Local Administration in England actually writes to each local authority to say, "In the year just closed, there have been this many cases. These were the issues, these were the themes and these are the things we think you ought to be addressing". Now, I could develop perhaps an annual letter to permanent secretaries along those lines which actually says, "These are the cases we have looked at which are of particular interest", if we start with the serial poor performers who give us a lot of work, and that out of that comes not just a very dense annual report with lots of detailed casework, but some fundamental issues about how public administration across government, across departments is failing and the lessons that need to be learned. Now, that is information that we could share more widely. I would just like to explore, I think, with the Committee what the Committee would find interesting, helpful and necessary in order to ensure that there is far more information available about the work of my office.
Q34 Chairman: Just tell us who the serial poor performers are.
Ms Abraham: Well, I think the Department of Work and Pensions probably gets the prize at the moment.
Q35 Mr Liddell-Grainger: Tony is absolutely right because that is where the crunch comes, is it not? Your increase in the people you have had referring to you this year has been quite phenomenal. There is no reason to say that is going to get better and in fact you will probably get more as filters are removed, et cetera. Therefore, is it not up to ministers and secretaries of state now actually to be accountable for what you are doing, so you should be pushing it down and it is perhaps for us or other organisations to get people to stand up in Parliament to justify what on earth has been going on. As you say, Work & Pensions are serial offenders. We know that because of the letters we get. Do you think we need to be as tough as that or that you need to be as tough as that?
Ms Abraham: I think we all need to be as tough as that. I think I have very much set out my stall, that my objective in life is to have a lot less work rather than a lot more and that would be because public services are improving and public service providers are better at handling complaints themselves rather than having situations where people have to go through this very extended process in order to get things sorted out. However, I think that we have got more work to do in actually analysing the trends and the themes and doing the feedback, you need to be aware of that, and what I need to do, when there are serial poor performers who are not getting better, is to come here and say, "These people need to be called to account".
Mr Liddell-Grainger: Very interesting.
Q36 Sir Sydney Chapman: Obviously the MP filter is part of the recommendations in the Collcutt Review of Public Sector Ombudsmen ----
Ms Abraham: That is right.
Q37 Sir Sydney Chapman: ---- published three and a half years ago now.
Ms Abraham: At least.
Q38 Sir Sydney Chapman: And of course the single commission was the main proposal, I think I am right in saying, although I was not a member of the Committee at the time, but in 2001 we agreed, I think, with the single commission. I get the impression, I think, from the evidence you gave us last March that you have gone rather cold on that. Now, you are two parts of these three commissions, yourself, so if we give you the third part, would you accept a single commission? Very seriously, am I right in saying, and I believe you are quoted as saying, that you believe in the Collcutt principles, but you do not need to have the Collcutt institutions? I am rather disappointed to hear you say that.
Ms Abraham: I think it is about pragmatism rather than principle. What I said last time and what I said in my memorandum last time was that I thought that things had moved on somewhat since Collcutt and because it is as old as you say it is, there have been developments. There have been developments in Scotland and there have been and there still are developments going on in Wales and there is a review going on in Northern Ireland. I think the complexity that I see institutionally is how the UK Parliamentary Commissioner for Administration actually comes together in an institution with the Health Service Commissioner for England, the Health Service Commissioner for Wales, the Commissioner for Local Administration in Wales, a Scottish Public Service Ombudsman, how you do that joining up, so it is not just a question of joining up the UK Parliamentary Commissioner and Health Service Ombudsman for England with the Local Government Ombudsman for England; it is more complicated than that. I think my view about this is that whereas I would love to start with a nice, big legislative slot and a blank piece of paper to create public sector ombudsman arrangements in the UK which were fit for purpose, comprehensive, joined up, all the things we want them to be, that is a complex wiring diagram now that developments in Wales and Scotland have gone the way they have gone for very good reasons which I support and I do not want us to stop trying to make progress with this while we work on an institutional solution. Therefore, I have not gone cold on the idea of the College of Ombudsmen, which came from Collcutt. I suppose I am trying to get there almost by the back door, if you like, by working with public sector ombudsmen colleagues on joint working, joint investigations and talking to government. I have provided information to the Committee about the discussions we have been having with ministers and officials in the Cabinet Office and the Office of the Deputy Prime Minister about removing what I and my Local Government Ombudsman colleagues see as the absolute legislative constraints to joint working, whether that is by regulatory reform or whatever or not, so I am absolutely committed to the principle of joined-up ombudsmanship and if somebody walked in tomorrow and said, "Right, there is a legislative slot. Please would you work on a draft Bill with us", I would be in there like a shot, but I am trying to make progress towards the concepts in Collcutt of a single point of reference for complainants with or without the legislation because I do not detect that this is legislation that is top of the list.
Q39 Sir Sydney Chapman: Just on this, first of all, Mr Liddell-Grainger said that his constituents hate London. My constituency is in London. I am tempted to say that a lot of my constituents hate London as well, and I hope I will not be misunderstood on that point. You have mentioned Scotland, Northern Ireland and Wales, but they have got devolved powers now, so I want to concentrate somewhat naturally on England, if not London. It seems to me that the very arguments you have used for saying that the MPs' filter system is anachronistic, or that is the word we used anyway or this Committee used, surely the one thing that would help simplify the work of the ombudsmen and encouraging people, where they feel a maladministration has taken place, is that you have one organisation so that you do not have to write to the Health Commissioner or the Parliamentary Commissioner or the Local Government Commissioner, but you actually write to one person at one address.
Ms Abraham: I agree and if I thought there was a real prospect of that happening, then I would be, as I say, in there like a shot, working to do whatever was necessary to make it happen and I have not given up on it. It is important, I think, for me to make clear that I have not given up on that, but what I and my colleagues are trying to do is bring about exactly what you describe which is that you go to an office that says, "Ombudsmen", and even if you have turned up in the wrong place, the ombudsmen will make sure that your complaint is dealt with appropriately by whichever ombudsman it ought to be dealt with by and that we will sort that out. That is not saying that people cannot work these things out for themselves, but if somebody takes a complaint to my office in Millbank Tower and actually what they want is the Local Government Ombudsman, what we will do is we will walk downstairs and we will talk to the person and say, "Actually this is one of yours, Mary. Would you now take it on", and they will then contact the complainant, so we will not send people away and say, "You've rung the wrong number", but we will take it off them and make sure it gets dealt with appropriately and that is where I want to get to. I think in terms of what we want to achieve, we are at one and I would love to have the institution that would do that, though I am not optimistic about getting legislation in the next year or two, but I will still continue to argue for the Collcutt principles and maybe one day we will get the institution.
Chairman: I think Kelvin wants to move on to the NHS.
Q40 Mr Hopkins: Yes, this is an entirely different field and this might be a rhetorical question, but I think it is fair. On funding for long-term care, difficulties with criteria, whatever, would it not be legitimate to say to the Government that given the Report of the Royal Commission, which recommended free long-term care, given the overwhelming majority of popular support for free long-term care, given the fact that it would cost very little in terms of funding, it could be done with progressive taxation, that all of these problems could be solved simply by providing free long-term care, as so many of us believe we should?
Ms Abraham: Well, I suppose the Ombudsman's answer is that it is not my place to say so. I think at the moment we are at a stage where it is really not clear yet whether the existing regime can be made to work and I think that is the question. There are hundreds of reviews going on now in strategic health authorities and primary care trusts of cases which have been referred directly that we have referred, and you will see that the volume of work that has come to my office is as a result of a report we issued in May. The key time, I think, will be when those reviews have been completed. If large numbers of people come back to my office and say that they are still unhappy and we then conduct further investigations, I think I would be better placed to take a view on whether this is a regime that can be properly operated.
Mr Hopkins: So you are highlighting the treacle of means-testing.
Q41 Chairman: Can I just ask one further thing on this, if I may, because I think it is quite interesting, what you just said. This is a category of case which does raise those issues about whether there is the prospect of maladministration built into it.
Ms Abraham: Yes.
Q42 Chairman: And I just want to press you a little further on what you said just now which is, "It is not my domain", and all that. You being a person who wants to press the boundaries and explore the potential of the role that you have taken on, surely it is your business if you are investigating cases where the lesson of the investigation is that if you devise a system like this, the chances of maladministration are extremely high and, therefore, it would be sensible to devise a better system, that is something that, as an auditor of these things, you should say, is it not?
Ms Abraham: I am very happy to say that. What I do not think I can do is go on to say what that system should be.
Chairman: No. No, I am not asking that, but I think that would be extremely useful if you saw that as your role.
Q43 Mr Hopkins: On NHS complaints procedure, there have been fairly radical reforms recently, one of which I think was very positive, powers. However, in my locality the Community Health Council has been closed down. It used to be a walk-in shop in the town centre, accessible to people on foot, old-age pensioners coming in by bus, and ethnic minorities whose English may not be strong could walk in. Is the new system going to be as helpful as the old system and do you see any criticisms in the changes which are actually going to make the complaints procedure more difficult to handle for people rather than less?
Ms Abraham: I think it is far too early to say whether the new system is going to be better than the old one. I think the whole question of immediate support on the ground has very much suffered from the extended timescale over which this has been introduced and, therefore, the end of CHCs and the start of powers has not actually run in the timescale that would have been ideal. I suppose if you look at this from the point of view of our evidence, what that evidence says is that the independent tier has been very much a curate's egg and there have been some very good examples of the independent tier working well and there have been some horrendous examples of extremely poor independent tiers and panels. Therefore, the idea of bringing that independent tier together in one place seems to me to be a positive one, but again everything is happening in a very short timescale and we are in pretty detailed discussion with the people in the new Commission for Health Audit and Inspection about how that is going to work and about how the relationship with my office is going to work, so I think it is too early to say. The Making Things Right document has all the right words in it and the challenge now is going to be about turning those words into reality both in terms of support on the ground at local resolution stage, the sort of support that you were describing that is now shut, and making the independent tier work well. There is a huge amount to try to do between now and next year and complaints is obviously only a part of that, so I do think that the next 12 to 18 months will be a critical time and we will be watching very closely how that progresses, but I think the jury is out at the moment.
Q44 Mr Hopkins: If I could broaden out the question of accessibility which we talked about earlier, the concern I have, particularly in my constituency, is that a very high proportion of the population will find a problem with filling in forms, will just find it all difficult, we have 21 per cent of the population who are functionally illiterate, we also have elderly people whose sight might not be very good, and they may be people who have major concerns, we have ethnic minorities in my town whose English is not good, so is it not still a system which really gives great advantage to those who are what one might call the relatively educated middle class who are very good at complaining, but not to the poor who often are the ones most in need?
Ms Abraham: Do you mean the system that the NHS is operating?
Q45 Mr Hopkins: No, across the board.
Ms Abraham: Well, that danger is clearly there and I come back to the MORI research that we did. I think what it means is that we need to take very seriously the fine words in the Department of Health's document and indeed the fine words in my memorandum probably which talk about providing the necessary support at all stages for people who are not necessarily minded to make complaints themselves, do not think there is any point in doing so, do not feel confident in writing letters, being open-minded about different ways of receiving complaints, and, from our point of view, being speedier about it, being more inclined to accept telephone calls, to actually talk complaints through with people and read them back to them and get them to confirm that we have got it right, doing things in different ways and in different ways that work for different people. Now, I think there is an acceptance in the NHS complaints procedure that that sort of activity is necessary, but I think it is still at early stages and patchy on the ground.
Q46 Mr Hopkins: On an entirely different question, I was interested to read your report on the Parliamentary Commissioner Act 1967 and recent complaints. It suggests that there have been for many years no problems at all and now there have been two serious complaints in a year and a complaint about excessive delay. Is there a sense in which government is paying rather less attention and riding rather roughshod over the Ombudsman and other aspects of Parliament because the overweening power of the Executive relative to Parliament in Britain is now starting to show in your field as well as in ours?
Ms Abraham: Well, not if I have anything to do with it, I suppose is my answer to that really. I think we highlight the problems there have been in relation to delays with departments in order to ensure that they do not continue and I think because we have now got into a mechanism where, if there are delays, rather than have my investigators locking horns with departments that are a relatively junior level, we escalate it to the appropriate level and make sure that things happen. Interestingly, I was asking my staff to tell me what the current situation was before I came today who again were the departments we were having problems with and I have to say Jobcentre Plus featured highly, the Child Support Agency was in the not-good-but-getting-better mode, and the Immigration and Nationality Department got a special commendation for the speed at which they turned things round, so it is not all an unhappy picture, but we are working very much to improve the situation where there are problems.
Q47 Brian White: Obviously dragging the IND in front of this Committee has worked, has it not! Before I explore that area further, can I just ask one question on long-term care. There were a large number of people who complained after your February report, particularly groups like the Alzheimer's Society and groups to do with dementia generally. How satisfied are you that there is actual action being taken on your report and have you followed it up?
Ms Abraham: Well, certainly satisfied that action is being taken and if I am going to hand out bouquets again this morning, I would hand a bouquet to the Department of Health for the extremely constructive and responsive way that they have worked with us since that report has been issued. The dialogue has been extremely good, and I was actually offered a meeting with the appropriate minister to discuss progress, so in terms of responding to the recommendations in the report, absolutely so. The reviews by NHS bodies are going on. We have referred around 1,700 complaints to strategic health authorities, PCTs, for review and we are monitoring closely how those reviews are progressing. We are taking a view on a case-by-case basis because there was a commitment initially by the Department of Health, in fact it was a deadline set by the Department of Health for reviews by NHS bodies of the 31st December, and I understand that that is now likely to be extended to March, but we are looking at these, as I say, on a case-by-case basis, so if we know that there is a particular primary care trust where they have a large number of reviews and they have only known about them since September, we will take a very different view from a primary care trust which has one or two and they have known about them since April. The response has been real and there is a lot of activity and a good dialogue with the Department of Health about this and I think the real test will come in a few months' time if we start to see people coming back to us because they are still unhappy about the results of those reviews.
Q48 Brian White: Can I now explore the access to official information and we are into another judicial review with The Guardian having taken a judicial review against the Minister. How effective do you think the Code has been? Are the exemptions working or are they hindering?
Ms Abraham: One of the things I want to do in the course of next year when my office will have had ten years of experience of the Code is actually do a ten-year historical perspective on its operation because it seems to me that it is a piece of history that we ought to record, so I hope that we will actually produce a report on the operation of the Code ten years on prior to the Information Commissioner taking on his responsibilities under freedom of information legislation, so I suppose that is by way of saying that I will let you know and it will be a long answer when I get there. What I would say is that in the course of this year there have been some difficult moments, but I do think that the Memorandum of Understanding that we agreed with government which was published in July was a positive and constructive move and it is helping us and it is helping government to understand what the Code is about and it is certainly helping us in our discussions with government departments on individual complaints to remind them of their responsibilities. It is a bit early given that that in effect has only been going for a few months. What I am doing is monitoring the situation closely and I would hope after six months of its operation to actually be able to do a proper review of how effective the Memorandum has been.
Q49 Brian White: And you will send us a copy?
Ms Abraham: Indeed.
Q50 Brian White: In your annual report you described the lack of co-operation from some departments as having one hand tied behind your back.
Ms Abraham: Yes.
Q51 Brian White: Does that lead you to question whether the current position of non-binding recommendations is the right one and should we move to a system of binding recommendations?
Ms Abraham: Well, of course in relation to Code complaints, we are moving to a piece of legislation and that is all very different. The issue of non-binding recommendations, I think, is pretty much embedded in the way public sector ombudsman arrangements have been set up and, interestingly, I was hosting a visit from the European Ombudsman earlier this week who actually gave me a very strong and persuasive exposition of why it was appropriate for the non-binding recommendation approach to be the right one, because of the ombudsmen's position in relation to Parliament. If we were in a situation where the ombudsmen's recommendations were regularly ignored, then I think I would be coming here and saying, "We've got a problem", but they are not and, as I see it, the way public sector ombudsman arrangements work in this country, that non-binding recommendation approach is one that works. There is scope, I think, for my office to be perhaps quicker and stronger in coming to the Committee if there are problems and certainly if there were unremedied injustice, we would do so, but it is certainly not part of my reform agenda at present.
Q52 Brian White: Obviously the Information Commissioner is going to be taking over in 2005, so how are the transitional arrangements going?
Ms Abraham: Well, pretty well really. I met Richard Thomas, the Information Commissioner, with some of our respective staff in October and we are due to meet again in March, but what we have done is set up a small joint working group of his staff and my staff to look at how the transition should work. What we are aiming to do is to ensure as seamless as possible a transition so that there is no hiatus and there is no point where citizens have nowhere to take a complaint about being denied access to information. That is our objective. The joint working group is looking at issues around training, support, sharing our procedural guidance which is on our website anyway, possibly seconding staff, looking at handover arrangements, but the fundamental aim is to ensure there is not a gap where citizens have nowhere to go with a complaint about access to official information.
Q53 Brian White: And you are satisfied with the pace of change by government departments in implementing FOI?
Ms Abraham: It is not for me to say. I think that really is a question for the Information Commissioner in terms of implementing FOI and I do not have information or evidence to give you on that. I do like to think that the work we have done this year on raising the profile of the Code and agreeing the Memorandum of Understanding will be helpful to the Information Commissioner in his work going forward.
Q54 Chairman: You are being rather mild-mannered about this spat that you have had with the Government about these matters. You have used rather robust language in print about this. You were getting very cross, were you not?
Ms Abraham: I was not cross. I was simply saying that co-operation from government departments was essential if I was going to do the job that I have been asked to do and without the co-operation, it would not be possible for me to do it, and that co-operation I think now is broadly forthcoming.
Q55 Chairman: Well, I think that sounds like crossness to me. Well, I would be cross if I was driven to a position where I said I could not do this part of my job because I cannot have the operating machinery to do it, but you have got this understanding now. Does this mean, do you think, that you are going to be allowed access to areas that you were denied access to before because that was one of the issues, was it not, that they would not even let you see the information by which you had to decide whether it was something that you felt should be disclosed or not?
Ms Abraham: Well, we were having difficulty getting hold of it. We were never specifically denied access in any of the cases that I have reported on now and the investigations we have completed, so we were having difficulty, but we did get there in the end and the only situation in which things were different from that was the one which is the subject of judicial review by The Guardian where a ministerial notice was issued and that changed the situation completely.
Q56 Chairman: For the first time.
Ms Abraham: For the first time.
Q57 Chairman: Did that seem to you an important constitutional moment?
Ms Abraham: I suppose the first time that a power is used is an important constitutional moment, but I suppose what I wanted to do was to make the people who needed to think about this think about it. The power was there. It was given by Parliament, it was considered to be appropriate and I thought it was far more appropriate for that power to be used than for somebody to try to persuade me informally that disclosure was something which was not in the public interest.
Q58 Chairman: Well, we shall watch this area with you. You have got this responsibility until 2005, so there are more events still to come.
Ms Abraham: Indeed.
Chairman: You must keep us informed and we will, as I say, watch closely what goes on, but thank you for being as robust as you have been so far.
Q59 Mr Prentice: I was just thinking, listening to this exchange, that it would appear very Delphic to people watching it on television.
Ms Abraham: Delphic?
Q60 Mr Prentice: Very Delphic. I have just been reading that part of your report where you talk about the difficulty of getting information out of the Cabinet Office and so on and you actually tell us that the problems were so severe that you seriously considered whether you could properly continue with the work, so you were being stonewalled by people, who - at Number 10?
Ms Abraham: Well ----
Q61 Mr Prentice: Go on!
Ms Abraham: Yes.
Q62 Mr Prentice: I was just going to say that nothing is going to happen to you, but it possibly will now! So the highest level in Number 10. You mentioned the Cabinet Office and the Lord Chancellor's Department, but who were the people? Let's name names. Who were the people who were saying to you that it would be inappropriate and inadvisable for you to pursue this matter?
Ms Abraham: This is a published report and the individuals concerned are named by title in the report, which is the convention that we use. I think it is perfectly possible to deduce from that who they are, so this is a published report now.
Mr Prentice: Sorry, but I just see a reference to the Cabinet Office, and I am not trying to be difficult here, and the Lord Chancellor's Department, but I do not see a reference to Number 10.
Ms Abraham: We may be talking at cross purposes. I was talking about the ministerial gifts case which was published in the June selected cases.
Q63 Mr Prentice: So it is all there?
Ms Abraham: It is.
Q64 Mr Prentice: Great stuff. Can I move on to something which is altogether more prosaic and that is record-keeping by departments. You tell us in your annual report that complaints against the Department of Work and Pensions account for a third of all complaints, which is the first fact I want to keep in mind. Then you go on to talk about the continuing problem of poor record-keeping by some departments. What exactly is the problem? It should be a relatively simple matter, keeping files and retrieving files, so what is the problem?
Ms Abraham: I suspect the word computer comes in there somewhere and that is not meant to be a flippant remark. These seem to me to be such fundamental principles of good administration that I think we are all shocked when we see such basic things are not there. The number of occasions on which my staff are dealing with a complainant, who says "Well, I had a telephone conversation and somebody said this and it happened on such and such a date" and there is absolutely no record of that exchange having taken place, and we are faced with a situation where the Department is saying, "Well, we have no record but we would not have said that and anyway there is nobody called So and So in the entire Department", trying to deal with whether or not somebody has been given wrong information, appropriate information, comprehensive information on the basis of no record of that call having taken place. So they are fundamental things and I do think that those are issues which may seem prosaic in one sense but they do go to the heart of the Department being able to support its own position.
Q65 Mr Prentice: Why is it that we have to revisit this issue every year? Are Government Departments - and we can talk about the NHS later - incapable of learning?
Ms Abraham: I think that is a very good question and it is something that obviously I am very concerned about because if there are lessons to be learned from the cases that my office has seen year on year, why are we not learning in the ways that we should be. I have thought about this in terms of our position and what it all means really about the definition of maladministration because we have these debates from time to time about what is the definition and what does it include and what is the Crossman Catalogue and is there something else, but what the European Ombudsman does - and I have always been hugely impressed by this - is have a code of good administrative behaviour which sets out these fundamentals, of which record keeping you would think would be a part, but they are issues around fairness, they are issues around courtesy, lack of discrimination, timely responses and so on and his way of saying something is maladministration is the reverse of good administration and there is a reference point of codified good public administration. It is one of the things that I would very much like to pursue for my office to perhaps get an agreement - maybe it is something we could talk about together - about what constitutes good public administration and certainly goes to the heart of this Committee's work which perhaps the Committee/Parliament/Government might like to adopt. It does give us a reference point and it does make us think about learning the lessons.
Q66 Brian White: Put it in the Civil Service Bill?
Ms Abraham: The way it was done in Europe, as I understand it, was the European Ombudsman developed it and Parliament adopted it.
Q67 Chairman: We are talking about a code of good administration?
Ms Abraham: It is a tiny thing, it is not a huge weighty document.
Q68 Chairman: We are interested in perhaps co-operating with you on that.
Ms Abraham: Good.
Q69 Mr Prentice: Is it just computers that cause the problem or are there problems with paper records?
Ms Abraham: There are problems with both.
Q70 Mr Prentice: Would it shock and surprise you if I told you that the Department of Work and Pensions has no record of any minister or permanent secretary visiting one of the 55 or so file stores around the country where records are kept on citizens, attendance allowance, all the records kept by the state and we have not had a minister or permanent secretary visiting one of the sites? Would that surprise you?
Ms Abraham: No, little surprises me I have to say.
Q71 Mr Prentice: I was going to say would this surprise you - but clearly it would not - that the Department of Work and Pensions has no method of counting files lost in file stores? They do not know if files are lost, does that surprise you?
Ms Abraham: It does not surprise me but it is shocking.
Q72 Mr Prentice: I think it is disgraceful.
Ms Abraham: I do think - and we started with this word prosaic - this is fundamental to good administration. It does concern me. We are looking now at cases coming in - issues around tax credits, issues around child support reforms - why is it that the big public service providers have not got to grips with the fundamentals of record keeping and IT systems. These things can be done. I suppose if my office was pulling out lessons to be learned over the years, I think there is probably a catalogue of these sorts of issues that we could perhaps shed some more light on.
Q73 Mr Prentice: Do you see it as part of your job then to go back to the Department of Work and Pensions and say to them, "Why is it that there is no consistent counting of files lost in your file stores"? Who is reported to be responsible for this? Have you thought about the consequences of Joe Bloggs out there waiting for attendance allowance to be told that the file has disappeared into the ether and the situation cannot be resolved? Do you see it as part of your job to have that discussion?
Ms Abraham: I think that what we do is we use the evidence from the complaints that we see to feed back to Government departments. In the same way as the annual report makes reference to poor record keeping we would say that this is something which features regularly, it does not seem to be getting any better. The tax credit case that I was looking at this week was a situation where this very distressed man had had five award notices in as many weeks about his award. He was absolutely terrified that he was being overpaid. He could not get any sense out of anybody. He tried to make phone calls but could not get through. He finally did and it was one of the classic, "I had this telephone conversation, 'Oh, no, you did not, we have no record of it'." These sorts of situations are making it a huge impact on people's daily lives and causing a lot of distress. It is about getting the fundamentals right. Yes, there is a big role for my office in the fundamentals of good public administration.
Q74 Mr Prentice: Do the departments have records officers?
Ms Abraham: I do not know the answer to that.
Q75 Mr Prentice: It would be good to find out if there are designated people in key departments responsible for tracking files to make sure that they do not disappear into the ether. What about the NHS because I am told also that the Department of Health does not have information on files holding clinical data - so we are talking about important files here - on patients that have gone missing either temporarily or lost. The Department of Health says it is a matter for each NHS trust and strategic health authority, that they are legally responsible, and they go on to tell me - and this is from a parliamentary answer - that independent authorities such as the Audit Commission, the Health Service Commissioner and the Information Commissioner, oversee the Government's arrangements and impose sanctions where there is significant failure to comply. My question is this: has that ever happened? Have sanctions ever been applied to an NHS trust or a strategic health authority because crucially important files, clinical data, have gone missing and no-one knows where they are? Has that happened?
Ms Abraham: I am not aware of any specific case where a sanction was imposed because of the absence of a file. What I can do is go back and check whether there have been any specific instances of that and write to you. What I would say is that the quality of record keeping is an issue on health cases as well. Sometimes that is about records not being comprehensive, sometimes it is about them being illegible. My general view about records which are not there is that the complainant gets the benefit of the doubt. I am never impressed with an answer which says, "Well, it would have said this if we had recorded it".
Q76 Mr Prentice: They do not get the benefit of the doubt if there is a neurological scan which has gone missing?
Ms Abraham: Of course not.
Q77 Mr Prentice: The poor unfortunate has got brain cancer which is not diagnosed as a result. As a constituency MP I get this sort of thing, not frequently but regularly, MRI scans which disappear, clinical data which disappears. I just want to know if this is pooled together somewhere? The Department of Health does not collect the information but what about these other bodies, the Audit Commission, Health Service Commission, Information Commission, do they pool together this information about clinical data which has disappeared because I think it is a matter of huge public interest?
Ms Abraham: Certainly it is not something that we would do systematically, I cannot speak for the Audit Commission or any of the other bodies.
Q78 Chairman: Going back to the previous question I asked you, which maybe you could reflect upon and express an opinion about, to follow Gordon's line of questioning, if this turns out to be a huge issue with these consequences then I think it would be quite proper for you to say, "I think there is a problem here which between us we need to try to sort out"? I think that would be added value to your role?
Ms Abraham: Yes, indeed. It goes to the heart of good public administration.
Q79 Chairman: As we end, can I ask just a couple of final things. One comes out of that last exchange. The Government loves league tables. The only place it does not like them is in relation to Government Departments.
Ms Abraham: Yes.
Q80 Chairman: I would like to put a suggestion to you which is you start doing it. You started talking a while ago about bouquets I think. I am serious now, I think that the constant problem is what happens to your reports, does the system take any notice of them, endlessly reporting on problems of record keeping in particular cases, what happens to those reports. If you were in your reports annually to systematically on the basis of the work that you have done produce brickbats and bouquets on categories like record keeping, complaint handling, speed of response, things which are to do with good administration or poor administration as you see it, I suspect this would have far more impact than the way you report now. Is this something you might think about?
Ms Abraham: I think it is something we are thinking about already. I agree that we need to be sharper and more targeted in the way we report. There is a huge amount of extremely valuable information in these reports but it is dense, it is not always accessible, and the reality is that busy people do not turn to page 43 and go through the detail of it. We need to be sharper, I think, in our feedback in our reporting. I am very happy to take away the ideas that you have just outlined.
Q81 Chairman: You could give these little smiley faces or grumpy faces.
Ms Abraham: No, no.
Q82 Chairman: I am being quite serious.
Ms Abraham: Absolutely.
Q83 Chairman: You have just told us the DWP dreadful, you would give it a glum face; you have told us the CSA, not good but getting better, you would give them a sort of half way face and so on.
Ms Abraham: Yes.
Q84 Chairman: I think it would have a massive impact on the system and getting your messages out if you could report in that kind of way.
Ms Abraham: Yes, indeed.
Q85 Mr Hopkins: What is coming out of this most recent discussion is that clearly there is a case for you or the Office of Ombudsman having a really good go at Government from time to time. There is no reason why you should not because you are actually accountable to Parliament, not to Government.
Ms Abraham: Indeed.
Q86 Mr Hopkins: Therefore, we are very happy for you to take a strong line with Government if it improves the quality of Government. I think that is what we are really saying.
Ms Abraham: I think there is an outbreak of consensus.
Mr Hopkins: Right.
Q87 Chairman: I have one final question which really takes us back to where we started. A few years ago the Government issued a document to all Government departments called The Judge on your Shoulder. This was a reflection of the fact that judicial review had developed enormously. My impression is that this is happening to you. Judicial review was seen as a long stop for the Ombudsman system at one time that really would not be used. Now we are having a number of instances where judicial review is being used. I want to know do you feel there is a judge sitting on your shoulder now and do you feel that is at odds with the spirit of informality and discretion which was at the heart of the ombudsman idea? Does it affect, therefore, the way in which you and the office work?
Ms Abraham: There may well be a judge sitting on my shoulder very shortly. I do not have a problem with that and certainly my current experience has not made me feel that it is a problem. It seems to me that there is a right to challenge my decisions and it is almost part of my quality assurance framework, if you like. In principle I do not have a problem with it. In practice I have not had a problem with it. It comes down to the same issues that I address every day of the week when looking at maladministration. I think that if judges are deciding whether I have acted wrongly on a legal issue, if I have got my jurisdiction wrong, if judges are saying that the conclusion I have reached is totally outside the bounds of any reasonable conclusion, that my logic is incomprehensible, I have no problem with that. If we find ourselves as ombudsmen in this situation where judges are regularly substituting their judgment for that of the ombudsman then I think we have a problem but I do not personally have any experience of that and, therefore, I see it as part of the territory I suppose. It is not an easy situation to be in when you are the final arbiter about a set of circumstances. It is useful sometimes and I have had situations in my previous existence where permission for judicial review has been rejected and the judge has said some very positive things about the quality of the investigation, the calibre of the reasoning and the complete reasonableness of the judgment. That is helpful to me actually because it endorses what we do. Unless I find myself once a week with a report quashed because a judge has said he or she thought they would substitute their judgment for mine, that would be a different set of circumstances but that is not where I think we are.
Q88 Chairman: Thank you for that, that is a very interesting and useful answer. Thank you for the session which has been extremely useful also. I think I can say we shall meet again.
Ms Abraham: I am sure we shall. Thank you, Chairman.
Chairman: Thank you very much.