Work of the Ombudsman - Public Administration Committee Contents


Examination of Witnesses (Questions 1-60)

ANN ABRAHAM, KATHRYN HUDSON AND BILL RICHARDSON

9 FEBRUARY 2011

Q1   Chair: Welcome to this one­off evidence session about the work of the Parliamentary and Health Service Ombudsman for England and Wales. Could you each identify yourselves for the record?

Ann Abraham: I am Ann Abraham and I am the Parliamentary and Health Service Ombudsman.

Bill Richardson: I am Bill Richardson, Deputy Chief Executive for the Parliamentary and Health Service Ombudsman.

Kathryn Hudson: I am Kathryn Hudson, I am the Deputy Ombudsman.

Q2   Chair: Kathryn, is it correct that you are on secondment?

Kathryn Hudson: No, I am now a permanent employee.

Q3   Chair: First of all, may I just ask about your productivity over the last period, which you describe in your memorandum? How have you achieved these productivity increases? Is it just that you are under more pressure?

Ann Abraham: No, I do not think we are under more pressure, although all of the indicators are that we expect to see more work in the years ahead, not least because of the environment in which we are all working these days. What I have taken great pleasure in is the fact that we have been able to absorb the additional work that came about because of the abolition of the Healthcare Commission, and the removal of the second stage of the NHS complaints system. What that enabled us to do, with additional resources that were agreed by Parliament, was open a second office in Manchester and take on the residual work that was left at the end of the Healthcare Commission's abolition, and absorb that bulge. We are now very pleased to say that we are very much on top of our work. I don't know whether Kathryn would like to add something about how we have done that?

Kathryn Hudson: Yes. I think what you would find is, at the beginning of 2009-10 we took on a huge amount of extra work, at the same time as having an increased number of employees to deal with that work. During the course of the year we were training and supporting a large number of new staff. As those members of staff have learnt their jobs they themselves have become more productive, and that in turn has enabled us to speed up some of the processes. We are also in a position where we are able to review the processes step by step and make gradual improvements; not major changes, but little bits here and there which start to really focus our attention on how we can do our work quickly and thoroughly, and to a high quality. We are beginning to see the benefits of that, first of all in the amount of work that we are able to produce during the year, as Ann says, keeping on top of it, but also looking at the quality of the work. So it is not just a question of passing it through as quickly as we can, but what we are doing is to provide a good, effective service for the complainants who come to us.

Q4   Robert Halfon: Do you ever survey your customers? I accept that with a lot of them you will not be able to agree to what they want, but do you survey them to say whether you have dealt with their inquiry fairly? If so, do you have any survey responses?

Ann Abraham: Yes we do, and the customer survey results are on our website. In fact they are just about to be updated with the latest figures as of December. So there is a rolling survey that goes on by an independent research company, which gives us feedback on satisfaction levels in a range of different ways: asking whether people felt they had a good service in being listened to, had their queries responded to promptly, were treated courteously, and then what they thought of the decision. So the overall satisfaction levels of people whose cases we investigate, 89% say they are satisfied overall with our service. Even with the people whose cases we do not investigate, but who come to us with cases that we assess and decide whether to investigate or not, over 70% of those people are also satisfied with our service. The information is all there on the website.

Q5   Robert Halfon: What about the MPs who refer?

Ann Abraham: We have not done a survey of MP satisfaction recently, but maybe that is something that we should be doing.

Q6   Chair: You have effectively increased your staffing levels by absorbing this extra activity?

Ann Abraham: Yes we have, quite significantly.

Q7   Chair: Now you have got to cope with a funding settlement that reduces your budget over the planned period—by 12.7% over the next four years. What impact will that have on your ability to handle the increased, and indeed increasing, workload?

Ann Abraham: We did a huge amount of work in putting together our funding submission, which went in last summer. We were very pleased to have it supported at the level that we asked for; we had very good dialogue with the Treasury. We looked very carefully at what we do and how we do it. We benchmarked, particularly our corporate services, against other organisations and looked at whether there was scope for us to improve that. We have got a balance of staffing between our two offices in London and Manchester, and our financial strategy going forward will look very carefully at how much of a presence we have in London and how much we have in Manchester, where there is some additional capacity. So the staffing plan and accommodation plan will be key in ensuring that we can continue to offer the same quality of service that we do now. I don't know, Bill, if you want to say a bit more about the thinking that went into the financial strategy?

Bill Richardson: Yes, as Ann said, we started our strategic review back in September 2009, because the current settlement we have was due to end in March 2011, so next month. We wanted to be well prepared for that. So when the Government announced the Spending Review in June of last year we were very well positioned. We certainly looked at a number of areas, including the effect of increases in our workload, which we thought would be significant over the next few years. We also looked at inflationary pressures and increases in our contract costs. What we have ended up with is what we call a flat cash settlement. Basically we get more or less the same amount of money, but clearly have to make savings to take account of inflation and contract costs. We looked very carefully at how we are going to do that. We know we have got to make savings on our pay bill and we will have a pay freeze for a couple of years, as most public sector organisations are going to, so that will contribute a fair bit. We also need to look at the way in which we can make efficiencies in both the operational processes, which we have already talked about, but also in the back office and our contract costs—in fact we have already started to do that—to make sure we can live within the money that we have been voted.

Q8   Chair: How much of the 12.7% saving is accounted for by a pay freeze, and will the pay freeze go on for four years? What is your budget for future pay?

Bill Richardson: The saving we have to make on pay is probably around £2 million. About half of that will come from a two year pay freeze; after that we will be in the usual negotiations with the unions.

Q9   Chair: How much of that 12.7% reduction in spending is accounted for by the pay freeze?

Bill Richardson: About half.

Chair: About half? So it is quite significant.

Bill Richardson: It is.

Q10   Chair: Is the other half coming out of redundancies? Basically, you have premises and staff costs and that is it, isn't it?

Bill Richardson: We do. The other areas we are looking at are things like accommodation costs where, as Ann said, we are making sure we make the best use of our Manchester office. So we would like to be transferring some posts up there, which will then allow us to save on our estate in London. We reckon that we need to save about 15-20% of our accommodation costs in London.

Q11   Robert Halfon: I have great respect for your organisation, so don't take this question the wrong way. Could I ask how much you spend internally on press cutting services, communications, PR, consultancies and so on?

Ann Abraham: Well, I don't have detailed figures, but I am very happy to supply them. If I can give you a general answer, then we will follow up by writing in relation to the detailed figures. What I would say is that the very substantial part of our staffing cost is our casework and operational staff. We do have a communications division, and my personal view is it is very important, given that we see our role as not simply doing the casework but ensuring that the learning from that casework is disseminated to bodies in jurisdiction and the wider audience, and indeed to MPs. So the communications function is important. Yes we do see press cuttings because we like to follow what is going on, but it is not a huge part of our budget.

Q12   Robert Halfon: It is just that Government Departments and quangos have been spending millions on press cutting services, and in the age of Google and so on I don't understand why this money is being spent. I was just curious to know if you spend money on these things.

Ann Abraham: I don't have the detailed figures but when we have been looking, as you do when you are reviewing budgets, we have seen that the big savings were certainly not on press cutting services.

Q13   Chair: Well we are keen on this subject. You are independent of Government, and yet you have to go to the Treasury for your financial settlement, do you feel that compromises your independence?

Ann Abraham: Well I think the wording in the legislation is very carefully crafted. What we have is a situation where Parliament votes the money for my office; what the Treasury does is sanction it. I had some very interesting discussions with the Cabinet Secretary in his previous role, when he was Permanent Secretary to the Treasury, about what the word "sanction" means in that context.. I think that it is very clear, and I think the Treasury well understand their role in ensuring that the submissions we put to them are properly scrutinised to ensure they make sense and that we have thought about things we ought to be thinking about in our approach to our financial submission. We have a good dialogue with them, but I think they are well aware that they are doing that in order for those estimates to be presented to Parliament. We have set out, in our statement of responsibilities—signed by the Cabinet Secretary and Permanent Secretaries at the Treasury, Department of Health and Ministry of Justice—a very clear articulation of what their role is in relation to the office. "Sanction" does not mean "approve". Bill may want to help me out on this. I think there is a very respectful relationship with the Treasury; I think the officials there fully understand the independence of the office.

Q14   Chair: What does "sanction" mean?

Ann Abraham: You had better ask them that question. I think what it means is that they want to be able to tell Parliament that our submission, and the way we are spending money, is proper. It is being spent on the right things, it fits with our strategic objectives, and it fits with good practice in the use of public money.

Bill Richardson: I don't think there is much to add there. As Ann said, we have a very good relationship with Treasury officials. They obviously look over the submissions that we put to them. These are submissions that have been looked at well within our office; both the executive board and our advisory board have scrutinised them. So we want to make sure that we have got robust requests for resources, which meet all the usual requirements of achieving value for money for the office, for the taxpayer and for Parliament.

Q15   Chair: That is very interesting, because the President of the Supreme Court made a speech yesterday complaining about his own independence being compromised because he has to accept reductions in funding from the Treasury. I am just interested whether you feel the same. You obviously don't.

Ann Abraham: Well I don't. If I recall, it was the Ministry of Justice that he was concerned about, rather than the Treasury specifically. I think these are hugely important relationships.

Q16   Chair: So if you were subject to the same kind of regime as the Supreme Court, you might feel compromised?

Ann Abraham: I don't know about the regime for the Supreme Court, but in my previous role as Legal Services Ombudsman, the sponsor Department was the Ministry of Justice. It is a very different relationship that I had in that context. Again, I always thought, with the civil servants I was dealing with, there was an understanding of the hugely important judicial independence—quasi­judicial independence—of ombudsmen. Certainly, in the relationship we have with the Cabinet Office, the Treasury and the Department of Health it is well understood.

Chair: Well thank you for that.

Q17   Greg Mulholland: Moving on from the questions of value for money, it has been pointed out that, of the 24,240 cases referred to the Ombudsman, only 356 complaints are being accepted and investigated. At a cost of £34 million, that is £95,500 per complaint. What is more surprising is that is only 1.5% of the complaints received. Why is it such a tiny figure? Can I point out that in 2006-07, when less than 10,000 complaints were received, the Ombudsman accepted and looked into 1,682, which was 17%. So how have we gone from there down to 1.5% and yet it is costing the taxpayer £34 million?

Ann Abraham: I think it is an important question. If I may say so, we probably have not explained ourselves as well as we might have done in relation to the numbers and what they mean. So perhaps I can have another go at doing that. To take your final point, the way in which we counted has changed since the 2006-07 numbers that you talk about, so if you go back through the past three years you will see a consistency of approach in how we do the counting. We have explained that in our reports over the years. The way we look at this now is that the 24,000 figure is the total number of inquiries that come to us. So that is the total number of approaches. The annual report sets this out in the types of closed inquiries on page 18. You start with 24,000. Of those over 3,000 are what we call "out of remit", so they are not for us; they are for the Local Government Ombudsman or they might be for the Financial Ombudsman. They simply are not something we can deal with. So that takes you down to about 21,000.

The next big category is what we call "not properly made". Now many of those will be complaints that have not been referred by an MP. In health complaints the requirement is that they are made in writing. So that takes another 10,000 out, where we have to say to people that we cannot look at their complaint because, at the moment, it is not properly made. So that leaves us with about 11,000.

Then something like 4,700 are what we would call "premature". So when we look at them, we discover that either the complainant has not been to the body in question to make a complaint, or they have but it is still under consideration. So we would point them in the direction of the Child Support Agency or the GP practice and say that we are not going to look at this until the agency or the doctor in question has had an opportunity to look at it themselves.

So that takes you down to 6,000, and that is when we start to do some very serious work on assessing those complaints. They are in remit, they are not premature, and they are properly made. That is when our assessment team will have a very detailed look at the cases, and we have a very substantial number of assessors, around 80 or so. Although the number accepted for investigation is in the hundreds, the number where we do the detailed assessment is in the thousands. In the report for 2009-10 we looked at around 6,300.

So, the important point for me to try and get across is that whereas we investigate hundreds of complaints, we assess thousands. We look at them all and we give them detailed consideration. Very often in those cases, although we don't think it is necessary to do a full statutory investigation and report, by our intervention the complaint will get resolved in some way or other. So sometimes we will pick up the phone and say that something has gone horribly wrong and ask for it to be sorted out. Sometimes we will ask for further action to be taken. We will say that although maladministration has been admitted there has not been anything done about a remedy. So a lot of our interventions will come at that assessment stage.

Can I just say one thing about your numbers in relation to dividing £34 million by 300 and ending up with a very large number? I feel very strongly that it is not appropriate to do that in relation to our work. The nature of our work is such that one investigation can involve thousands of people. Equitable Life is probably the biggest one, when you do one investigation, but actually sitting behind that investigation is a huge number, hundreds of thousands or millions of people. When we did the Cold Comfort cases we looked at some lead cases, perhaps four or five, but sitting behind that would be another hundred.

I can give you an example of work we do that is extensive, involving lots of people, which isn't a statutory investigation. We did a report last year on the loss of a memory stick by a contractor working for the Home Office. We had complaints referred by over 200 MPs from 400 prisoners about the data loss on this memory stick. That was one assessment, but it involved hundreds of people. We decided not to investigate, but we produced a report to explain why, and we did a lot of work on it. So that is a very long answer, and these things are not easy to explain. We have had several goes at it and maybe we need to have another go, because I think there is a common misunderstanding. However, I think it is very dangerous to take those investigation numbers and divide them into £34 million and somehow think that that gives you a meaningful answer.

Chair: Well that certainly was a £95,000 answer.

Greg Mulholland: Thank you for that, a necessarily long answer. On that point—

Q18   Chair: Are you going to leave that issue? I would like to ask about it. It is a very long answer but I don't feel that you have explained, in a nutshell, how you have reduced the percentage of complaints, and the complaints you are handling are much more expensive. It suggests to me that you are squeezing out smaller complaints, because you don't have the capacity to handle so many lesser complaints. Maybe you are majoring on bigger complaints because you consider them more significant and they have more relevance to the wider public interest. Would that be a fair description?

Ann Abraham: No, I don't think it would. I just think that isn't what we are doing. What is difficult to explain is that we are counting things differently from the way that we counted them in 2006-07. We used to call things investigations that I don't think we should have been calling investigations; I think we should have called them interventions or assessments because they were a very different product.

Q19   Chair: They were a preliminary inquiry?

Ann Abraham: Well they were a very detailed preliminary inquiry, and very often with a positive outcome for the complainant.

Q20   Chair: So it was like an investigation before charge?

Ann Abraham: Possibly. If somebody comes to us because they have got a problem with a Government Department that they just cannot get shifted, in the same way as they sometimes come to an MP and an MP can shift something because they are an MP, sometimes we can shift something because we are the Ombudsman's Office. You don't need to do a full statutory investigation, with everything that involves.

Q21   Chair: So you just ascertain there is a problem, ring them up and they say "Okay, we will sort it out"?

Ann Abraham: Well yes actually. Sometimes the power of the Ombudsman's Office can do just that.

Q22   Chair: So you don't count that sort of thing as a complaint?

Ann Abraham: We don't count it as an investigation, because we don't produce a full statutory report.

Q23   Greg Mulholland: On that note, it might be helpful to make sure that those figures are there, the 6,000 or so cases that you mentioned. Perhaps the impression that is given by the very stark 1.5% figure is a little misleading. To try to be helpful, do you publish the number of individuals involved in each investigation and in each case? Again, 356 cases could be 356 people or 356 MPs—it clearly isn't—but do you publish the numbers of people involved in each? That again would give a very different picture. If I could just ask one related question, which I think would be very useful for us. Going back to the 24,000 cases, and I suspect this is probably relating to the 6,000, how many MP referrals do you then not investigate? Do you publish those figures?

Ann Abraham: Well we don't publish them in the way that you describe. The broad numbers are there, but I think, if I'm honest, it would be very difficult for anybody to take, from that information, the number of MP referrals we don't investigate. We have to do some thinking within the office about how to present the information that we have, in order for us to be open and clear about what we do and how we do it and give you the information that you need, without going into information overload, where there is just so much information that you cannot see the wood for the trees. If what you are saying is that it would be helpful to have that additional insight, then we can certainly have a look at that.

Q24   Greg Mulholland: I think it would be very helpful for everybody. I would ask you specifically if you could do a note to the Committee with the number of referrals from MPs, stating how many are investigated and how many are not. I think that would be quite interesting, to see if MPs are correctly referring at the right time and in the right way, or if they are and you are not investigating. There is a little bit more work that I think we need to do, so if I could ask you to provide that note to the Committee at some stage, that would be very helpful.

Ann Abraham: I would be very happy to do that.

Q25   Greg Mulholland: Just moving away slightly from figures to the rationale of the process of getting to those 356 investigations. The Office of the Ombudsman assesses complaints in terms of likelihood of a worthwhile outcome to an investigation. Do you not agree that that is very woolly, with something that is on a statutory footing and is the last port of call for complainants regarding public bodies? Who is defining a worthwhile outcome, and how would you define a worthwhile outcome?

Ann Abraham: I suppose, in very simple terms, I would describe it as an outcome that the complainant wants, or that is otherwise in the public interest. This is language that we use internally, I hope we don't use it with complainants very often; I would hope our letters are written in a much more personal and tailored way to respond to their specific circumstances. At a very simple level, if somebody comes to us with a complaint about their experience with the NHS, and what they want is the doctor's head on a plate and striking off the register, we cannot deliver that. If it is a question of fitness to practise then the General Medical Council can deliver that outcome. If that is all they are interested in then we would say that there was no worthwhile outcome from an investigation by the Ombudsman in relation to what that individual is looking for. Therefore, that is the way we would approach it: is it something that we could achieve for that person?

Q26   Greg Mulholland: Is that not slightly dangerous? Never mind "worthwhile", which is clearly a woolly and not particularly helpful term. Is "outcome" not the incorrect thing to be pursuing in the first place? Surely what the Ombudsman is there to do, simply, is to define whether there has been maladministration. If there has been maladministration then the outcome, as much as there is one, is to say that yes, there has been, and that someone has been badly let down by a public body. Yes, people want someone to blame, they want a head to roll, someone to get sacked or something to change for the future, but surely what you are there to say is "Yes, you have been failed badly by a public body". So are you not actually looking at the wrong thing in the first place?

Ann Abraham: I don't think so. Again, if you go back to the legislation, it talks about are complaints of injustice as a consequence of maladministration. So the complaint as made needs to be a complaint that there has been an injustice, again using the legal language, as a consequence of maladministration. So what the law requires is not for people to bring complaints of maladministration.

It is interesting to look at Ombudsmen in other parts of the world. They can have complaints brought to them by people who have not been affected by maladministration, but who are just saying that they think something is terrible. That isn't the way our legislation is framed; it talks about injustice as a consequence of maladministration. So if we are going to uphold a complaint, we have got to find that there has been maladministration, and that there has been injustice as a consequence of it. So the prior order questions from our point of view are whether there any indications of maladministration, and there may well be. There may be a Government Department that is saying, "We made a complete hash of this and completely admit it", but we cannot see that that has had any impact on the individual who is making the complaint. Or possibly it has, but the Government Department has said, "We are really sorry, we've done everything we can to put it right, and we have paid the back benefit". In that case we would say that there are indications of maladministration and injustice, but actually there is nothing more we can add. I suppose it is value added that I am looking for, for substantial investment of taxpayers' money. It is not simply us being able to say that something went wrong here; because that is not the way the legislation is framed.

Q27   Greg Mulholland: In essence, if you, the Ombudsman, feel that you are not going to change something, or effect a specific action, even though there has been very serious injustice as a result of very serious maladministration, you won't investigate?

Ann Abraham: We might, if there was a wider public interest. I am trying to think of an example that would help you, and most of the examples I can think of are where the wider public interest is in the possibility of the Ombudsman saying there was not maladministration. One of the cases we looked at some years ago was a complaint, again referred by many MPs and many complainants, about the regulation of the animal experimentation industry, and concerns that the regulation was not being carried out properly. There was a lot of outrage, a lot of concern, and a lot of distress about all this, and some very unhappy people. We did a very thorough investigation and we were satisfied that actually everything was being done reasonably, in accordance with the requirements of the regulatory regime. We produced a public report to say that. Now actually the wider public interest was in the Government Department concerned being able to say "The Ombudsman has looked at this, and this is being done properly." So there are lots of circumstances in which we would say that it is worth us doing this. I suppose "worthwhile" for me is whether it is a good and proper use of public money to get to a decent outcome, either for the individual or in the wider public interest.

Q28   Greg Mulholland: I would argue that it perhaps suggests a flaw in the legislation, particularly for individuals where the public interest test may not apply under the terms you suggest. The outcome that many individuals want is for the Ombudsman to say, "The council or health trust has acted very badly and let you down, and you have been caused an injustice as a result of their maladministration." So if you are saying that you are not going to investigate because that is the only outcome that you could provide, frankly I think people in this country are being slightly misled as to what the Ombudsman is. As MPs we all know full well that simply having a belated apology that something awful has happened from the council or PCT is not good enough. People see the Ombudsman as overseeing that, and overseeing those failures in public administration. If those things are not there, they will not be picked up and raised.

Ann Abraham: I'm sorry, maybe I didn't make myself clear. I didn't say that we would not investigate situations where we have clear indications of injustice as a consequence of maladministration. What I was trying to say was that if there was clear evidence of maladministration, but there was an admission of that, there was already an apology for it and there was nothing we could usefully add, then we might not investigate. However, there are plenty of cases we look at where the maladministration isn't admitted, the injustice certainly isn't admitted, and the best outcome we can get for the individual is a vindication that they were right, that what happened should not have happened, and we finally get the body in question or the hospital in question to admit that and give them a proper apology. So very often that vindication is one of the outcomes that we get.

Q29   Greg Mulholland: That is sort of what I was getting at. I am sorry to keep probing, Chair, but I think this is quite important. The impression given by the figures, the 356, is that those are cases where people just want that vindication. That vindication is extremely important in public administration terms, because if we find out that a certain council or health trust has lots of cases that have been vindicated by the Ombudsman, and there are 300 cases to say that there has been maladministration there, then that is something that the Government or other watchdogs need to take up. So, can you present those vindications? Perhaps all a person wants or needs is a letter saying, "Yes, you have been the victim of maladministration; there is no need to investigate, but we are saying that, and that is a positive outcome." I think the way that the figures are being presented and the terms that are being used have not been helpful, because often all someone wants to be told is, "Yes, you are right, this is maladministration," and a stamp from the Ombudsman. That is then evidence for us, as policy makers, and for other people. Where there is a serious problem then people can go and intervene. So, do you think that is something you could look at?

Ann Abraham: I think it is, and I think it argues for the importance of a good communications department, because we have got work to do in getting our message across. I would say that we do that all the time, but clearly we are not presenting our material in a way that gets that message across.

Q30   Chair: Where do those messages arise from?

Ann Abraham: They arise from decision letters on assessments.

Q31   Chair: Not from investigations necessarily?

Ann Abraham: Exactly, and what Mr Mulholland describes is the sort of vindication that says "Yes, something was wrong here, it has been admitted". Many of our decision letters on assessments would include exactly those sorts of messages.

Q32   Greg Mulholland: This is my final question; I appreciate I have taken a lot of the Committee's time. Clearly, you are human beings and yours is a body run by human beings, so at times, as with all of us, mistakes will be made. If people want to complain about the Ombudsman, they complain to you. That cannot be right, can it? That is not sensible.

Ann Abraham: Well it is—

Chair: Or to us.

Ann Abraham: Or to you, indeed, absolutely.

Greg Mulholland: Then we would have to refer it back to the Ombudsman.

Ann Abraham: Indeed. Or the courts, actually. It is a very important point, and one that we are very conscious of. We try very hard to look at our own principles of good complaint handling and we have set up systems within our organisation, which we think comply with those principles. We have what we call a review team. That is a team that reports directly to the Deputy Ombudsman, is outside of the line for our operations directors, and has the responsibility of looking at complaints about us. They may be complaints about our service or about our decisions, either decisions on investigations or decisions to decline to investigate.

If you just look at the decisions not to investigate, which probably are where we get most concerns, there are around 4,000 discretionary decisions not to investigate in a year, and around 1,000 reviews. So we are very keen to make sure that, because we are the last port of call for so many people, we have got robust systems in place to ensure that there is an arm's-length review. So we have people not involved in the original decision at all, who look again. About 25% of those people will take us up on that. Again, in broad terms, of those 1,000, there are around 50 decisions where we say that we have not done the best assessment job and we look at the case again. Very occasionally we will take on cases for investigation where originally we had decided to decline. So we have got our own in-house systems. We also have the judicial review process, and I know that is not something that many people will turn to lightly. In 2009, we had 11 cases where there was an application for judicial review of our decision and nine of those were refused, one was withdrawn and one was given permission, which is a very complex declaratory hearing that is going to take place later this year. But, in 2010, six cases: five refused by the courts to go any further and one awaiting a decision. And the judicial review process is very much a long stop, but it is very encouraging for me when a judge looks at what we have done and says, "That looks entirely reasonable. I am not going to grant permission for judicial review of the Ombudsman's decision".

Q33   Greg Mulholland: But they are two extremes: judicial review, obviously, hugely expensive and not open to ordinary people, and the other, as you have said, might be arm's length, but it is in-house. Surely, is there not a need for at least an independent audit of those complaints to have full confidence?

Ann Abraham: I will ask Kathryn to say a bit about our quality processes in a moment, because I think that might be helpful. Judicial review—mostly litigants in person—actually, is not expensive; it is time consuming for individuals but not necessarily expensive for us. I think it is a proper part of the process, and a necessary part. Our review process, we do believe, is as good as it can be under the circumstances, and we do look very, very carefully and robustly at decisions when reviews are asked for. We have a lot of in-house quality assurance processes as well, and perhaps I can ask Kathryn just to say a bit more about that.

Kathryn Hudson: Yes. Thank you. Alongside being concerned about our service standards and our throughput, over the last couple of years we have been developing in house some measures of the quality of the service that we are offering, and the opportunities to develop our staff to ensure what they are doing is to provide a high-quality service. And we have done this, first of all, by developing systems and processes which include the checks and balances that we need to make sure that the work is being done right first time. We have comprehensive casework policy and guidance, which is easily accessible to all of our assessors and investigators, to make sure, first of all, that people know how to do things and, secondly, that we have a common standard across the office.

Alongside that, we have developed our customer surveys to give us a feel for how it is to be on the receiving end of us, and have developed a way of reporting back on the quality and service as a whole, which we have fairly recently started by bringing reports to our executive board, which look at quality across a range of things, including how many judicial reviews, but also a whole range of other measures that talk about quality. We learn from the reviews that are undertaken. Very often, there will be some point in a review that is undertaken, even if, as a whole, we are not upholding it and saying it needs to go back through the process again, we will want to say, "Well, maybe this wasn't done quite right. We need to make sure that everybody knows not to do that again", and we have built in some process of feeding back through the system the learning that comes from reviews that are undertaken.

We haven't finished yet and one of the things that we are considering at the moment is the possibility of bringing together some focus groups of people who have been through our process, and probably people who have not been satisfied—so, some of the people on whom we may have undertaken reviews—to say to them, "Will you help us learn from how we are doing these things in order that we get it right for the future?" And that is in the plans for the coming year. So, a whole range of things, a great concern to learn, not least because we can then share some of that learning with the NHS and with government bodies, as well as learning from it ourselves, but it is really important that we are taking those measures forward and constantly trying to improve the quality of the service that we offer.

Ann Abraham: I will just say one final thing, if I may, which is we obviously draw a distinction between whether we get our decisions right, and the quality of our service and how it feels to be on the receiving end of it. I am pleased to say that the number of decisions that are overturned following a review is very small. I think we are constantly learning about service and how to tailor our service, to write letters that are clear, that are tailored to individual circumstances. But to come back to your point about whether there should be another mechanism: so much of what we do is a judgment call on the facts, and the judgment call is about reasonableness of decisions. It is very little where there is a right or wrong. So, if you wanted to have a further stage, it is always possible—I think there is an issue about proportionality in there—but we do the best we can to have, if not an independent review mechanism, certainly arm's length and completely unconnected to the original decision-maker.

Chair: I am going to come back to that reasonableness test later on.

Q34   Robert Halfon: Going back to your role, I possibly take a different view from my esteemed Chairman about the MP filter. I would be very happy to get rid of that because it seems to me inconsistent that people can write to you about health issues but not about others, and I think that people should have direct access, but do you not think that your role should actually change? At the moment, you are the last port of call. In my view, you should be the first port of call, and the reason I say this is because—and this comes up time and time again—when people come to me as an MP, they make their complaint about something that has happened, they write to the state agency, the state agency either does not reply, nine times out of 10, or sends a rubbish reply. They then send further emails and so on, and the complaint does not get dealt with, and by the time all that process has been gone through according to the rules that you set out, and they go to their MP, they have wasted another six months. Most of the time, I would argue—it would be fascinating to do a study of this—people do not get satisfactory responses. That is in my own experience as a new MP. So, surely, your role should be a first port of call and, actually, people should come to you first. You should guide them through the complaints procedure and make sure that these bodies do what they are supposed to do, reply properly and give the constituent a decent response, and then, if you feel that it has not been dealt with, you take on the case even further.

Ann Abraham: I think it is a very interesting point you make, and I was just thinking ahead to a report we are working on for October this year, which is a report on the complaint-handling performance of government bodies. We did a report called Listening and Learning, which Mr Jenkin very kindly came to the launch of in October, and we are going to do two volumes of Listening and Learning in October: one on the NHS and one on government. And we are now internally just discussing the key themes from that report that will be in that report, and the key messages. One of the things, I think, that has concerned us for some time is just how lengthy some of the complaint processes are within government: how many stages there are—whether it is the Department for Work and Pensions or HMRC or whatever—before you actually get to the point where somebody has a proper independent look at this and sorts it out. One of the things I certainly say in my discussions with permanent secretaries and chief executives of agencies is, "Why did this have to get to the Ombudsman before anybody's jaw dropped?" And it is quite worrying that complaints can go right through all of the stages of a departmental complaints procedure, and it gets to the Ombudsman and, instantly, you can see that something has gone horribly wrong here. So, what is wrong with the systems that go before?

  So, I think there is something about internal complaint-handling and how effective it is. I suppose what goes against that is a very, very strong view, certainly that we have—and it goes as well with, as I understand it, the localism agenda—about local resolution and democratic accountability at the local level. And actually, whether it is the Local Government Ombudsman or ourselves, any Ombudsman would say that giving bodies complained about the opportunity to put things right, there and then, quickly, and learn from it, so the feedback loop is very tight and immediate and there is real-time learning, is absolutely key to improving public services, because if you have to get to the Ombudsman to get the learning, rather than learn yourself, then you are missing a big trick. So, those are the two things I think you need.

Q35   Robert Halfon: But don't you agree that, if Mrs Bloggs knew that you were there from the beginning to help her through her complaint and to make sure that her issues were being dealt with, the whole thing would change overnight?

Chair: But isn't the corollary of that: shouldn't Mrs Bloggs be able to write to HMRC or the tax credits people or the department of social security and get her complaint properly dealt with?

Ann Abraham: One would like to think so.

Chair: Isn't that what we're all in favour of?

Ann Abraham: You would like to think so.

Robert Halfon: Yes, but it doesn't happen—it does not happen.

Q36   Chair: Yes, but then isn't there a case for the Ombudsman, or maybe us, looking at complaint-handling across government, in Government Departments, and where a complaint is badly handled you take the Department to task for how badly they handled that complaint and ask them what they are doing to put their procedures right so it does not happen again?

Ann Abraham: And we do. One of the things that, again, is very interesting—and I would contrast developments in Wales and Scotland here—is that there seems to be no kind of cross-Whitehall view, cross-government view of what a good complaint-handling system should look like. We have got our principles of good complaint-handling, and that is our contribution to the debate, but it is fascinating that, every week, another bit of government comes and asks us to have a look at some changes they are making to their complaints system and whether we think this fits with the principles of good complaint-handling. All this work is going on in compartments, in different bits of government, with no sort of overarching sense of who and where is the design authority for complaint-handling systems in government.

Q37   Chair: Sounds like a job for the Cabinet Office.

Ann Abraham: Maybe, but in Scotland it is a job for the Ombudsman; in Wales, it is a job for the Ombudsman, and I think it is quite interesting that, actually, that is not remotely on the table in the Cabinet Office here.

Chair: Interesting.

Q38   Robert Halfon: Can we move on to a different area? This is something very, very close to home. I was fascinated by what you have written about witness anonymity, and details being passed on, because, last Friday, I had an Adjournment debate about two constituents—pensioners—who had reported a benefit fraudster, because the wife, in her time, had happened to work at the benefits agency concerned. The benefits agency, in their wisdom, passed to the individual accused the names of my constituents, and they suffered a four-year campaign of harassment. They got beaten up—you name it. They even got arrested because of the accused accusing them of all sorts of things. I was incredibly unhappy about how the state agencies had responded to my letters, which was classic Sir Humphrey, and I have been advised, following the Adjournment debate, of a procedure, and I will actually contact you as well after this. But it seems to me that there is a loophole in the law here and a lack of clarity regarding people who do this sort of thing. The government and its agencies are quite frivolous with people's private data, passing them on to individuals willy-nilly, and I would be very grateful for your view on this, particularly given what you have written in your foreword here, where you say, in the opening, "Imagine if you or a member of your family were arrested, handcuffed and"—

Ann Abraham: Yes, this is Small Mistakes, Big Consequences, isn't it?

Q39   Chair: It is the foreword to your report on recent casework digest.

Ann Abraham: Yes, absolutely. No, I think the Small Mistakes, Big Consequences digest was one where we were really trying to get across to people, or get across to government, that what might seem to them to be a small administrative error can have horrendous consequences for individuals and, in that case, it was actually about not opening a letter in time and passing it to the court, and somebody ended up spending a night in the cells as a result.

Q40   Robert Halfon: Which happened to my constituents as well.

Ann Abraham: That happened as well? I am interested in the witness anonymity on benefit fraud because we had a case recently. It is not a published case, but it was certainly the subject of considerable outrage across the office, and we did get what we thought was a good outcome in the end. It was somebody being a good citizen, responding to a request to help with a benefit fraud investigation. They got an absolute promise that their witness statement and the information they had given would be anonymous, and then discovered, in the bundle of papers that went out for the court case, there it all was. Now, it should not have happened, and in the case that we investigated, the Government Department absolutely put its hand up and said it shouldn't have happened. The consequences for that family were dreadful—again, a campaign of harassment—very difficult, very distressing. It absolutely should not have happened and the Government Department concerned certainly did not waste anybody's time suggesting that they had done anything other than made a very, very bad mistake, and engaged with us very well about doing everything possible to put things right for the complainant.

Q41   Robert Halfon: My pensioners have had their life ruined because of this and lost their life savings because they have had to go to court. It is a tragic story. What penalties are there? Can you order the Government Department to pay compensation?

Ann Abraham: We could make recommendations. If there are specific losses, then we could recommend reimbursement of the losses. We could recommend compensation for distress and inconvenience. If it is a case that you want to refer to us, then please do and we can look at it.

Q42   Robert Halfon: Do you think the Government does still have problems in handling personal data safely?

Ann Abraham: Yes. Yes, and I should not trivialise that because it is very serious. You will have seen our recent report, A Breach of Confidence and, in some ways, that was less about computer systems and much more about people not taking responsibility for putting things right when they go wrong, and about Government Departments that do not seem to be able to work together and constantly pass the buck. And again, I think, looking at complaint-handling performance and the way in which Departments and agencies engage with us, I would generally say that, certainly, the bodies that we have lots of dealings with do engage with us. They will talk with us about systemic remedies and think hard about learning from complaints. When it involves three Departments working together, that is when it gets tricky and difficult.

Q43   Robert Halfon: Do you think the law needs to be tightened up on this, and the role of the Information Commissioner strengthened?

Ann Abraham: I am not a great one for tightening the law and thinking it will change people's behaviour. My sense is that what we need is good administration. You come back to the inquiry into good governance: whether there is good administration, whether there is good record-keeping, whether information is not held for any longer than it needs to be, whether there are secure systems for handling it and people have respect for personal data, and I think, probably, the law is there.

Q44   Robert Halfon: Perhaps there should be tougher penalties, then, and better compensation mechanisms.

Ann Abraham: Maybe so. I suppose I would like to think we could all work hard at getting it right first time. And I am very conscious that, if you look at A Breach of Confidence, there is an annex in that report that talks about the entire information-assurance strategy going back to 2004, and going over the period of the big HMRC data loss, and there are strategies, there are senior responsible officers and there are charters. None of that was of any use whatsoever to the poor woman in that case, who was simply trying to get to the bottom of how this mistake happened and how it spread across all these bits of government. So, I think, maybe a bit less in terms of words and a bit more in terms of changes in behaviours is what we are looking for.

Q45   Chair: Thank you for that. Very briefly in the time we have left, if either of my colleagues wants to chip in, do you notice any trends in the types of complaints you are getting? If you can be very brief.

Ann Abraham: I can be very brief.

Chair: Maybe Bill's got a view on this.

Ann Abraham: He is probably about the last person to have a view on this. I think that there are big departments who will always create a lot of work for us by the nature of what they do.

Q46   Chair: Why is that?

Ann Abraham: Because of the sheer volumes of work that are going through the Department for Work and Pensions.

Q47   Chair: What is the common theme between the Departments who generate lots of complaints?

Ann Abraham: I suppose one of the big common themes is not doing their complaint-handling in a way that means they sort things out before they come to us.

Q48   Chair: And you say you have good lines of communication with these Departments, but the complaints are still going up. They are not listening.

Ann Abraham: They are listening. Take something like the UK Border Agency: there was a time when they hardly had a complaint-handling system and we wouldn't even bother to say, "Go back and make your complaint to the UK Border Agency", because we knew it was a waste of time. It is not like that anymore, after dialogue with them over many years, but they've still got a way to go. And then we see new bodies popping up: Cafcass is in our sights at the moment as there is quite a lot of work coming in from that new source. Every Ombudsman says that their objective in life is to put themselves out of business, because there is such good complaint-handling going on in the bodies in jurisdiction; we ain't there yet.

Q49   Chair: Are you expecting a lot more complaints from the NHS as a result of the reforms?

Ann Abraham: It is difficult to say, really. Interestingly, because the complaints system has been reformed—I feel very strongly that those reforms were good reforms and they are already starting to bear fruit—I think we are able to engage with the NHS now under this complaints system in ways that we never were previously, and that is demonstrating that the dialogue we are having with them is already perhaps starting to steady off NHS complaints. It is difficult to know. We have a big report coming out next week on NHS care of the elderly. The very fact that we have done that may, itself, generate more people coming to us, simply because of the awareness that it creates. So, the NHS has got a way to go, but I do not see a huge, dramatic increase in NHS complaints coming up.

Q50   Chair: But isn't the creation of HealthWatch exactly what you want, because that is them taking more responsibility for their complaints? And yet you suggested that this is going to create some kind of conflict with the Ombudsman.

Ann Abraham: No, not at all. It is an advocacy organisation.

Q51   Chair: In response to the White Paper, you said you had a concern about "a potential conflict of interest in the role of local HealthWatch as advocate for an individual complainant—and the part envisaged for HealthWatch in the local commissioning decision-making process". I am sorry I did not characterise that correctly before, but do you remember what you said?

Ann Abraham: I said lots of things, but one of the things that we have said is that we think the vision for HealthWatch is a very important one, and certainly the role of advocacy in NHS complaints is hugely important, and I hope that that vision is realised for HealthWatch.

Q52   Chair: Do you feel that that concern of yours has been taken on board?

Ann Abraham: Yes.

Q53   Chair: Do you welcome the changes proposed to your powers to share increased information regarding completed cases?

Ann Abraham: I very much welcome the amendments to the health legislation that are in the Health and Social Care Bill. I would like some matching ones to the Parliamentary Commissioner Act.

Q54   Chair: Interesting. But have you pressed Ministers on that?

Ann Abraham: I have spoken to the Cabinet Office about it.

  Chair: Could you do us a note on that?

Ann Abraham: I certainly could do that.

Q55   Chair: I would be very grateful for that. Finally, you have announced your intention to stand down at the end of this year, after a very long and distinguished record in your office. I sense no flagging of enthusiasm.

Ann Abraham: Absolutely not.

Chair: And that is clearly reflected in the reactions of your colleagues each side of you. You mentioned earlier the difficulty of making a judgment call, and we also discussed how, on occasion, the courts question whether you have made the correct judgment call. Now, you are not a lawyer, I am not a lawyer, and we could give each other a welcome hug of relief on that point.

Ann Abraham: We could.

Chair: But do you take enough legal advice? Because when you have a judgment call to make, isn't there, at the root of it, either a legal question or at least a question that is capable of analysis analogous to a legal question?

Ann Abraham: Maybe. I had a legal advisor many years ago who used to say that legal advice should inform decisions; it should not become decisions. We take lots of legal advice—we have a very good in-house team, we have an external panel and our caseworkers have access to legal surgeries—because we want to make sure we have understood the law correctly, but I think that lots of us, as decision-makers, are perfectly capable of doing the analysis and the weighing-up of relevant considerations.

Q56   Chair: But, in the end, the word "injustice" is a legal question, or is it?

Ann Abraham: I don't think it is.

Q57   Chair: That is a very interesting point, because if you think about Equitable Life case, we were all seized by the injustice—and, indeed, still are seized by the injustice—of what has happened, and yet there seemed to be very little legal remedy.

Ann Abraham: Yes.

Chair: And I suppose that is key to your role.

Ann Abraham: I think that is where the Ombudsman comes in.

Q58   Chair: As you may know, the House of Commons is going to take more responsibility for the appointment of your successor than has previously been the case, and we are attracted to and are discussing a process that is nearer the Welsh system than our previous system. We will be required to make a judgment about what skills are required for your successor. Would you have any comments to make about skills that have been important to you and maybe skills that you feel you have lacked?

Ann Abraham: Right. Well, I could draft you a person specification, if you would like me to.

Chair: I think that would be very useful, actually. Just as a bit of background information for us, I think that would be very welcome.

Ann Abraham: I will do that.

Q59   Robert Halfon: How were you appointed to your role? Was it just a Government appointment?

Ann Abraham: No, I responded to a public advertisement. I was interviewed by a panel, which was chaired by the then Cabinet Secretary. Mr Jenkin's predecessor, Tony Wright, was a member of the panel, and there was also somebody from the Office of the Commissioner for Public Appointments nominated there, so that was the panel. But, as I think you know, it is then a recommendation to the Queen by the Prime Minister.

Q60   Robert Halfon: Will the Public Administration Committee have a role in this now?

Chair: We are going to have a very big role in that, I can assure you. Now that Select Committees are elected, we felt entitled to take control of that, but it is a parliamentary appointment, not, as far as I am concerned, just of this Committee.

Ann Abraham: Indeed, and I find the interest that Parliament has taken in the appointment of my successor and the fact that it is under such active discussion very reassuring. I think we come back to the absolutely critical connection between my office and Parliament, and the Ombudsman's Office draws its strength from Parliament and support from Parliament, so I think it is a really good development.

Chair: Well, thank you very much for your evidence today, and thank you for what you do, and thank you to your colleagues and to all your staff. I think Members of Parliament are becoming increasingly reliant on what you do, and we look forward to developing that role in the future, so thank you very much indeed.

Ann Abraham: Thank you.



 
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