Explain the multiplication of Ombudsmen and assess their contribution to dealing with citizens' grievances.

There was great demand for ombudsmen to oversee citizens’ interests and to give a voice to those who would not otherwise be heard. This would allow the main part of organisations to continue unhindered, whilst simultaneously having a body to oversee their work to ensure fairness. This said, whilst recognising the need for a body to perform such a function, it may be questioned whether ombudsmen are needed per se. Why cannot the courts undertake this task by way of judicial review? The courts are already overloaded; they are technical, formal, slow, and expensive. The advantages of ombudsmen and commissioners are clear: they are less daunting by being informal, cheaper and offer a real opportunity for those who, if the only option were to be the courts, would be forced to endure the situation and perpetuate the alleged injustice. Thus, the multiplication of ombudsmen is a clear and positive response to the pressures placed upon both Parliament and the courts.

The fact that the existence of ombudsmen to check on maladministration has taken hold in other areas e.g. the health service, legal services, pension, insurance, Local Government implies a positive impact and a good contribution in dealing with citizens’ grievances. Nevertheless, assessing the impact, positive or otherwise, that Ombudsmen have had seems to hinge on the basic principle that how one views the objectives of the ombudsmen determines how successful one believes them to have been in dealing with people’s grievances, since clearly success is measured according to perceived objectives.

As regards ombudsmen’s contribution to dealing with citizens’ grievances, there are a number of benefits witnessed in this field, which apply regardless of whichever school of thought one subscribes to, with regard to the ‘correct’ function of such bodies. Firstly, there is evidence that the knowledge that some external body may review one’s work has a deterrent effect, insofar as an official may be more careful in an attempt to avoid an allegation of maladministration in the first place. Clearly, this is of benefit to the citizen by reducing the number of incidents prompting complaints.

The PCA has no formal power of enforcement. The HL in X v Bedfordshire County Council reconfirmed that maladministration “by itself gives rise to no claim for damages.” A claim of damages must be passed on private law causes of action e.g. negligence or breach of statutory duty. Public law has not developed in such a way due to concerns that imposing liability for damage on public bodies would not allow officers to discharge their duties “expeditiously and fearlessly.”  This implies that any investigation is futile; nevertheless, the PCA’s reports show that his recommendations have led to a wide range of remedies. In 1995, there were 154 cases where the PCA was able to secure a remedy going beyond a mere apology e.g. departmental changes in working practice or financial compensation. Also, in 1988, it was recommended that a remedy in damages should be available where “a person suffers loss as a result of wrongful administrative action not involving negligence.”  “Wrongful” was defined by Lord Diplock in GCHQ as “an action or omission tainted by illegality, irrationality, or procedural impropriety, which is thereby liable to be declared illegal, quashed, void or voidable.”

Such a change was recommended through legislation but none has been passed yet. Nevertheless, developments have been made in this area i.e. the PCA’s attempt to restore those who have suffered a loss due to maladministration to the position they would have been had the maladministration not occurred is causing considerable erosion. Other factors increasing liability of public bodies in damages according to Amos is Community Damages Law development and section 8 of the HRA 1998.  

Nevertheless, it must be remembered that the PCA has stated that no case in which he considered redress was requires “was the complainant left without it,” and it has been said that he does “not take no for an answer” when redress is recommended. It is also generally accepted there is a strong political obligation on ministers to accept the PCA’s findings and to take action. The PCA has had remarkable success in securing financial redress for complainants, e.g. in Barlow Clowes, and it seems that in some cases the applicant who chooses to pursue a remedy for maladministration via the PCA rather than by judicial review may find that he is financially better off. The Health Service Ombudsman also demonstrates that his recommendations are accepted, despite having no power of enforcement. Since the HSC’s caseload is increasing dramatically year by year, it becomes apparent that an increasing number of citizens are having their medical grievances settled, largely due to the ombudsman’s input. Hence, it would seem that ombudsmen are a “valuable addition to the constitutional and administrative life of the United Kingdom.”

The title question assumes the purpose of ombudsmen and commissioners to be solely to remedy citizens’ grievances, and such an assumption can be supported where one views the bodies’ raison d’être as protecting the rights of citizens. However, another school of thought views the matter in a somewhat different light, believing that such bodies exist to merely deflect public criticism and protect the ‘parent’ body involved i.e. an adjunct to parliament. On such a basis, the court’s decision in Dyer can be explained. There it was accepted that courts could review the PCA’s decisions. This would give citizens an extra protection per se. In Balchin there seem to be problems with the ombudsman body, since the court comes close to seize the discretion vested in the ombudsman to determine matters of fact. If this continued, many of the advantages the ombudsmen have over the courts would be lost, which could be said to be adverse from the viewpoint of correcting citizens’ grievances. Nevertheless, it can also be argued that if one sees the ombudsman as an adjunct of Parliament then the court is then seen as a protector of citizens.

Another potential barrier to the PCA protecting citizens’ interests may be the ‘MP filter.’ On the one hand, it is argued that it allows the MP too much discretion, and the indirect access between the citizen and the ombudsman may prevent many worthy cases being brought to the latter’s attention. While this is accepted as true to some extent, there is in fact a good case for preserving the filter. It prevents the ombudsman from being overloaded with cases (the floodgate argument) thus ensuring that his thoroughness remains high. The PCA is viewed as an adjunct to Parliament, assisting in the traditional function of protecting the citizen, and that the he was never intended to be an independent citizen protector. It is also submitted that, in a great many cases, MPs may be better placed to deal with the matter. If the MP filter were removed, the MPs may become somewhat redundant to no great benefit to either the public or the ombudsman. Hence, those who point to the MP filter as an example of how the ombudsman fails to adequately address citizens’ grievances may validly be accused of being short sighted. Nevertheless, the Cabinet Office Review 2000 proposed the removal of the MP filter and allowing direct access to the PCA. However, it seems that if the relationship between the MP and the PCA were improved by the MP integrating the PCA’s work in with his own, and viewing his role in a more positive way then the MP filter would be of more value.

The PCA’s role has developed considerably since the office was first introduced, and the scope of bodies within his jurisdiction has expanded. The success of such complaints machinery is exemplified by the clear multiplication of Ombudsmen and Commissioners in various other fields such as the Health Service and Legal Services. Furthermore, the fact that the 1967 Act did not include complaints against Local Authorities (LA) has since been remedied by the Local Government Act 1974. The LA Ombudsman investigates complaints about any LA except town or parish councils and since 1988; the public have direct access to the Local Commissioner. The citizen only resorts to the LA ombudsman if the LA foes not provide redress to a grievance. Thus, it is important to examine the internal grievance procedures used by the LA, which should be accessible, simple to use, speedy, confidential, comprehensive, and objective.

A criticism which one may be better able to substantiate is that concerning publicity and public-awareness. Most people do not know of the functions of an ombudsman or commissioner and many departments (particularly governmental) may be accused of failure to inform, whether or not deliberately to avoid bad publicity. Hence, the public fails to make use of ombudsmen and the like simply because of lack of knowledge. This is an extreme disability in terms of attempts to contribute to citizens’ grievances. It can therefore be seen that the picture is not entirely positive in terms of ombudsmen and commissioners having a beneficial effect on public grievances.

It is indisputable that ombudsmen and commissioners’ contribution in dealing with citizens’ grievances are improving yearly as they receive more complaints. The introduction of ombudsmen in various fields highlights the positive impact in dealing with citizen’s grievances whether or not the citizen turns out to have a wholly justified complaint. In order for the PCA to improve his role has protecting citizens there must be an increase in public awareness of his office. Dealing with some citizens’ grievances will account for nothing unless the public are aware of the work. Thus, there must be better advertisement of his role through for example the Internet or television.

        A criticism of the PCA is that his role is “reactive” as it receives the complaint after the loss has occurred. A more pro-active role would result in less maladministration nevertheless; this would be hard to achieve as his role is dealing with complaints and not to look for maladministration beforehand.

The PCA’s astounding success in securing financial redress for complainants and a rapid increase in jurisdiction and activity of the PCA with 158 bodies added in 1999 will no doubt add to the pressure to reform. Further increase in jurisdiction such a sin other countries would also improve the PCA’s role. Also the PCA should be able to award compulsory compensation, and imposing such burden increases the burden on public funds, resulting in a deterrent effect – decreasing complaints due to greater care being taken in the first place.

To conclude, the multiplication of Ombudsmen itself proves that they do contribute positively in dealing with citizens’ grievances. Nevertheless, major reform is needed to improve the PCA's role.

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