Role of The Ombudsman

There is a general consensus that complaints are resolved in a fair, just, and speedy manner. Since reports are made to the bodies complained about, one would assume that the feedback provided may be used in avoiding future complaints. 

The Powers of the Ombudsman

Like courts, the powers of the ombudsmen are extensive. Accordingly, they have the capacity to investigate complaints. They can conduct interviews, collect information, and make recommendations.  Like judges, ombudsmen have powers of discretion. It has been claimed that these powers may exceed those of judges. The extent of their discretionary powers was exposed by R v Parliamentary Commissioner for Administration ex parte Dyer (1994) that shows that though the ombudsmen is subject to judicial reviews, such reviews would be unsuccessful. Despite these claims, the case of R v Parliamentary Court for Administration ex p Balchin [1996] EWHC Admin 152, proves that courts can challenge the decisions of the ombudsmen.

Advantages over courts.

The informality of ombudsmen procedures may have advantages over courts in resolving issues.  Their inquisitorial methods as opposed to the adversarial techniques used by courts means that maladministration wrongs can effectively be exposed. As illustrated in the Burlow Clowes affair, the Salmonella virus scandal and the Channel Rail Link, government bodies are usually willing abide with the decisions. Though government departments may delay in providing remedies, justice is in the end, seen to be done.

In principle, citizens that suffer from wrong decisions but cannot seek legal action are allowed a free alternative to justice. The system has advantages when contrasted with the slow and expensive service offered by courts. Unlike courts, ombudsmen can facilitate reconciliation. They provide a less intimidating process because cases are decided on facts, meaning that an appearance is not always necessary.  

The ability to promote good practices and influence administrative systems is perhaps the greatest advantage of the ombudsmen systems. Unlike courts, ombudsmen can make recommendations highlighting areas of injustices that provide overall improvement of administrative systems. Like courts, ombudsmen also lay grounds for other dispute resolution methods such as arbitration and negotiation. Consequently this provides a balance of power between individuals and government bodies’. 

Despite these distinctions between the courts and the ombudsmen there have been claims that their discretionary powers tend to bring them closer rather than set them apart. Use of discretion by both systems may leave an individual with no recourse to justice. A suggestion for a more integrated system between the two systems has been forwarded.

Limitations of the PCA Jurisdiction

A major limitation of the PCA is the confinement to maladministration complaints. Furthermore, the ombudsman is only empowered to consider the injustice suffered as a result of a decision. Further, their investigations are restricted to how a decision was reached rather than the decision itself. Where complaints may be resolved through courts and tribunals, the ombudsman cannot investigate. In special situations, the ombudsman may use his discretion to investigate a case.

Despite these restrictions it has been argued that the Whyatt report, by not defining maladministration, deliberately created some flexibility for the PCA.   Its definition has therefore been developed with time. In the case of R V Commissioners for Local Administration ex parte Bradford Metropolitan Borough Council (1979), maladministration was defined as ‘faulty administration’ and ‘bad administration’ while in R V Commissioners for Local Administration ex parte Eastleigh Borough Council (1980) it was defined in relation to the decision making process.

Related to this, are the limitations in its jurisdiction. Despite its jurisdiction being extended, certain departments such as the police, nationalised industries, cabinet office, and prime ministers office are excluded from its jurisdiction. The PCA cannot also investigate matters that the government considers sensitive such as matters of security. 

Unlike courts, ombudsmen cannot implement their decisions. They cannot grant compensation or remedies. They can only make appropriate recommendations. Institutions are not bound by these decisions. The decisions may thus be ignored. Rather than limit its effectiveness, it would seem that this limitation is also one of its advantages. As seen earlier, recommendations are usually adhered to. Furthermore, awarding of damages would equate it to a small claims court. An overlap may be created with the courts complicating the ombudsman system. It would remove the very essence of its flexibility and informality. It may be argued, therefore, that the inherent informality of the PCA provides it with the advantage of resolving administrative complaints in a way that would be impossible to achieve through litigation.

Debates have been raised on the desirability of having the ombudsman’s recommendations enforced in courts. Again such a move has been seen as undesirable for fear that the PCA would loose its informality and become subjected to the formalities and limitations of the courts.

The public has no direct access to the PCA.  Though this a deliberate move to allow MPs serve their constituents under the doctrine of ‘ministerial responsibilities’, it nevertheless presents a barrier between the complainants and the PCA. This ‘filter’ has been criticised as a bureaucratic obstacle that undermines the effectiveness of the PCA. Despite the results of a survey that favoured support for direct access, it was decided that MPs should continue to play their role as the role of a ‘middleman’. This of course, does not lead to justice because an MP may use his discretion not to present a case. The question of accessibility therefore remains a major issue for discussion.

 Attempts have been made to improve the services of the PCA. Consequently the Parliamentary, Local Government, and Health Service Commissioners have been amalgamated into one single Public Service Commissioner. The consultation paper on the Reform of Public Sector Ombudsmen Services in England 2005, proposed the amalgamation would lead to more efficiency and effectiveness if there was better collaboration in investigations and consultations between the three ombudsmen. 

Being under the scrutiny of the Public Administration Select Committee is seen as a positive role. It has been agreed that the establishment of the select committee has been very valuable, and has enhanced the effectiveness of the ombudsman. Powers of the Ombudsmen have recently been enhanced by the Scottish Legal Services Ombudsman and Commissioner for Local Administration in Scotland Act 1997 giving him powers to question how a complain is handled

Improving the services of the Ombudsman

Improving accessibility of the ombudsman especially to minority groups would be a major step in achieving justice. A further step would be to reach local levels.  The downside that the ombudsman may be inundated with complaints can be dealt with by setting up screening guidelines within the system to separate the ‘wheat from the chaff’. As a result, complaints would be dealt with in a speedy manner. Furthermore, it would be beneficial to make the system ‘user friendly’ so that people do not require representation. Where maladministration is found, the ombudsmen system needs to facilitate remedial action. 

There seems no logical reason for citizens to be denied direct access to the PCA. It does not stop MPs from receiving complaints from constituents. Increasing accessibility would lead to larger number of cases being handled, forcing institutions to improve their services. To be effective, the ombudsmen would administrative support, as well as voluntary expert advice.

Reports made by the ombudsmen would create more awareness if shared with the public. The reports would produce better results if an opportunity was created to engage the government body complained of in a dialogue.

It has been suggested that the ombudsmen should play a more proactive role in society.  They should be able to conduct investigations by their own initiative without having received a complaint. This is regarded as a more positive role of the ombudsmen.

Conclusion

The Ombudsman system has increasingly become an important institution of handling complaints both in the public and private sectors. Despite its many limitations, the ombudsman system provides an effective remedy for complaints that complements the judicial system. The informal and flexible manner in which the ombudsmen operate may be cited as the major reason for their success.  Ombudsmen continue to have a positive public effect, with their reports receiving considerable publicity. They also continue to be reformed into a more integrated system. The public role played by the ombudsman in highlighting injustices in administrative systems is seen as a more positive role for the future ombudsman.

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