Draft Public Services Ombudsman (Wales) Bill A proposed bill to extend the powers of the Public Services Ombudsman for Wales
In May 2015, the Finance Committee finalised an inquiry into Consideration of powers: Public Services Ombudsman for Wales.
This inquiry followed calls from the previous Public Services Ombudsman for Wales (“the Ombudsman”), Peter Tyndall and the current Ombudsman, Nick Bennett that the role should to be strengthened.
The Committee’s report made 18 recommendations to improve and strengthen the Ombudsman’s role. In addition, the Committee produced an at a glance summary of its inquiry.
The Committee’s recommendations
The Committee’s recommendations to strengthen the Ombudsman’s role included:
- Powers to initiate own investigations;
- full discretion for the Ombudsman to decide how complaints can be made (such as oral complaints);
- a statutory complaints handing role for public bodies; and
- extending the Ombudsman’s jurisdiction to enable investigation into the whole complaint when a combination of treatment has been received by public and private healthcare providers and when that treatment has been initiated in the NHS.
The Committee’s main recommendation was that a Bill should be introduced into the National Assembly to extend the role of the Ombudsman. A Bill is a draft law. Once a Bill has been considered and passed by the Assembly and given Royal Assent by the Monarch, it becomes an ‘Act of the Assembly’.
The Ombudsman currently operates under the Public Services Ombudsman (Wales) Act 2005. This Act sets out how the Ombudsman's role works. The Committee agreed there should be a new Bill which re-enacted much of the 2005 Act and included the recommendations made in their May 2015 report.
The Committee consulted on the structure and content of the Draft Public Services Ombudsman (Wales) Bill and this summarises the main concerns raised by the consultation.
Power to investigate on own initiative
This power allows the Ombudsman to investigate a matter whether or not the Ombudsman has received a complaint.
Most respondents supported the power, here are a few concerns and comments that were raised:
- there could be confusion and duplication of effort if another regulatory body, Commissioner or the Auditor General for Wales could also investigate the issue;
- the criteria for undertaking an own initiative investigations should cover matters in the public interest and that may lead to wider improvement across a particular service.
“…own initiative investigations should only be undertaken where they will add value and provide specific benefit which should be determined at the outset of the investigation.” Health Inspectorate Wales
The Committee believes that detailing on the face of the Bill the criteria and evidence that would be required before the Ombudsman can carry out an own initiative investigation could constrain the Ombudsman’s ability to act effectively. Therefore, it should be left to the Ombudsman’s discretion with a requirement on the Ombudsman to publish this criteria. The Committee agreed to make some changes to the text of the Bill including;
- to give power to the Ombudsman to work with regulators (such as Health Inspectorate Wales and the Care and Social Services Inspectorate Wales) and all future commissioners and statutory advisers that are created by Acts of the Assembly, to future-proof the legislation and ensure consistency;
Complaints-handling across public services
This enables the Ombudsman to publish model complaints-handling procedures (“model CHPs”) for listed authorities.
Most respondents were content with the complaints-handling provisions within the Bill and felt it would:
“drive forward quality complaint-handling and data collection at the service provider level” University of Sheffield
The Auditor General for Wales felt the provisions as drafted in the Bill were appropriate to grant the Ombudsman sufficient powers to ensure that complaints are dealt with consistently and fairly across the Welsh public sector.
“The Government welcomes the provisions around model complaints-handling procedures (“model CHP”) for listed autohorities.” Welsh Government
The Committee noted the positive responses and were therefore content with the Bill as drafted.
Investigating private health services
This allows the Ombudsman to investigate private health care providers when a combination of treatment has been received by public and private healthcare providers and when that treatment has been initiated in the NHS.
Most respondents supported the provisions as drafted in the draft Bill, which would allow the Ombudsman to be more citizen-led rather than service-led.
“…it will achieve greater equality of opportunity for investigation and possible redress for the range of mechanisms by which healthcare may be funded.” Care Council for Wales
The Committee agreed to broaden the definition of “private health services” in the draft Bill to include medical treatment and nursing care.
The Committee also felt the Ombudsman should be able to recover costs incurred in investigating private health care providers where the provider had obstructed the Ombudsman’s investigation and this cost should not fall to the taxpayer. This has been reflected in the Bill.
Listed authorities
Schedule 3 in the draft Bill lists the persons who can be investigated by the Ombudsman. Currently, this list includes most devolved public services in Wales (such as the NHS, local authorities and National Parks). However, as changes are made to the devolution settlement in Wales, this will lead to new areas coming into the Ombudsman’s jurisdiction.
Most respondents were content with the restrictions on the power to amend Schedule 3.
“…the restrictions as drafted appear clear and proportionate compared to the 2005 Act.” Welsh Local Government Association
“Schedule 3 “Listed Authorities” should anyway be kept under review to reflect evolving circumstance.” Marshfield Community Council
The Committee agreed that the following bodies should be included on the face of the Bill:
- Coity Wallia Board for Conservators;
- Harbour authorities;
- Port authorities;
- Qualifications Wales;
- Towyn Trewan Board for Conservators;
- Wales Audit Office;
- Welsh Health Specialised Services Committee.
- Welsh Revenue Authority.
Disqualification period
The draft Bill provides that a person who has ceased to hold office as the Ombudsman or as an acting Ombudsman is disqualified from a list of roles for a period of two years. The 2005 Act is for a period of three years.
Respondents were divided on the question of whether the disqualification period of two years in the draft Bill was appropriate.
“…the two year period of disqualification for both the Ombudsman and Acting Ombudsman is excessive, disproportionate and unnecessary.” Northern Ireland Ombudsman
Before making a decision on this issue, the Committee considered the disqualification periods for Ombudsman in other jurisdictions and various public offices in Wales. The Committee believes that the period should be consistent with the Scottish and Northern Ireland Ombudsmen, in that disqualification lasts until the end of the financial year after the financial year the Ombudsman ceased to be in office. This has been reflected in the Bill.
Social care and palliative care
The 2005 Act provides a standalone regime for investigations relating to social care and palliative care. This jurisdiction was extended by amendments inserted by the Social Services and Well-being (Wales) Act 2014.
The Committee asked consultees for their views on whether the regime for social care and palliative care should remain a standalone regime, or whether it should it come within the ‘mainstream’ investigation regime. The overwhelming response was that it should be included in the mainstream investigation.
“…Part 4 should be brought within Part 3 to ensure consistency and clarity.” Ceredigion County Council
Despite the consultation responses being strongly in favour of bringing social and palliative care into the mainstream investigation process, after further discussion, the Committee decided to keep social and palliative care as a standalone regime. This is because of the specific nature of social and palliative care, and the fact that merging the two regimes would create one very complex and intricate regime. Therefore, the Committee have kept two separate but clear investigation regimes.
Welsh Language
The Welsh Language Commissioner noted that the Bill did not place any Welsh language requirements on the Ombudsman.
“At present, it is not clear what the Ombudsman's duties are in terms of providing services through the medium of Welsh. The Commissioner would welcome it if the Committee were to place specific duties on the Ombudsman in the draft Bill in relation to the use of Welsh.” Welsh Language Commissioner
The Committee agreed the Ombudsman should have a Welsh Language Scheme which should be published.
Evaluation of legislation after commencement
Consultees were asked to comment on when the impact of the legislation should be evaluated. There were mixed views on this issue with most respondents suggesting between three to five years. It was acknowledged that in order to effectively evaluate the effects of own-initiative investigations and model complaints policy this timeframe was reasonable.
“…the legislation should not be reviewed sooner than three years, nor later than seven years after its coming into effect.” University of Liverpool
The Committee considered five years to be an appropriate timescale and have included this in the draft Bill.
Conclusion
“We began our important work into considering the role and powers of the Ombudsman in January 2015.
During this time, we’ve heard about the vital role the Ombudsman plays in ensuring any member of the public who believes they have suffered injustice through maladministration or service failure by a public body, are able to make a complaint with the reassurance that their complaint will be dealt with fairly and independently by the Ombudsman.
We were persuaded by the evidence received that there should be a revision to the powers of the Ombudsman. We wanted the Ombudsman’s role to be governed by Welsh legislation and our aim was to create one piece of bilingual legislation that was future-proofed and truly citizen-centred.
We developed and consulted on the Draft Public Services Ombudsman (Wales) Bill and were delighted with the overwhelming responses and support received from respondents. We sincerely hope this draft Bill is taken forward and introduced by an Assembly Committee in the Fifth Assembly.
I would like to thank everyone who has contributed to our work on the powers of the Ombudsman; your input has been incredibly valuable.”
Jocelyn Davies AM, Chair of the Finance Committee