Say what you mean, mean what you say: New research highlights challenges in the language used by ombuds

Posted: November 19, 2017 | Author: | Filed under: informal resolution, ombuds, research, terminology, users' views | Tags: , | Leave a comment

Screenshot 2017-11-17 12.01.19

A new report has been published on research on language used in complaints handling. The Language of Complaints, produced by IFF Research, was commissioned by the Legal Ombudsman to help understand how language affects consumers’ behaviour and choices and identify better practice in the use of language. The report highlights the use of jargon in complaints responses – including ‘remedy’, ‘premature’ and ‘out of time’ – which can cause confusion or appear meaningless and add to ‘the accumulation of technical language that the customer will have encountered in their complaint “journey”.’

The researchers explored the impact of language used in both written and oral communication by legal services providers and the Legal Ombudsman. They consulted with staff at the Legal Ombudsman and also carried out 15 face-to-face interviews and four focus groups with members of the public, both those whose complaint to the Ombudsman had concluded and those who had used a legal services provider but not complained.

Responses suggested that, generally, communications were clear and straightforward and that the Legal Ombudsman’s language is an improvement on that used by legal services providers. There were a number of areas, however, in both written and oral communications where improvements could be made.

Interpretations of commonly used phrases

Although it is clear that people interpret language in a variety of ways, it is useful to understand better how common phrases used by redress mechanisms can convey the opposite of what is intended. For example:

‘The phrase “we will look at the facts in each case” was felt to convey the Ombudsman’s impartial approach particularly well, while the idea of the Ombudsman “weighing up the comments” from the customer and the service provider meant that several non-customers interpreted the Ombudsman’s role as being like a pair of scales.’

Other comments include that the term ‘impartiality’ implies ‘sitting on the fence’ and being toothless to enforce recommendations, and that ‘premature’ (used in relation to a complaint that has not yet gone through the internal complaints procedure of the provider) is associated ‘with small babies or with a sexual context’.

Lack of clarity on ‘informal’ resolution

It is interesting to note that among the problematic language identified is ‘informal resolution’: the research identified that the steps involved in taking a complaint to an ombud are not as clear as they could be, and that for some interviewees:

‘…the word “informal” is jarring: taking their complaint to the Legal Ombudsman feels like a formal process to them, so implying that their complaint is informal feels to some as thought their complaint is being downplayed and that its importance is devalued by the term.’

The report explains the process of ‘informal resolution’ as follows:

‘Once a complaint has been accepted, it will be passed to an investigator who will listen to both sides, look at the facts, weigh up the evidence and take a view. If a case is resolved at this stage, it is resolved ‘informally’. The Legal Ombudsman aims to resolve complaints this way; currently, approximately 30% of cases are resolved like this.’

More insights on the language used around informal resolution suggest the need for more clarity about the process used in this informal stage, something we highlighted in our report on informal resolution approaches used by ombuds. 

‘…several of the calls were felt to be overwhelming and hard to understand. This was due, in large part, to their lack of structure which felt baffling to the customer: for example, the informal resolution with remedy call started with the staff delivering a decision, when later it became apparent that this was actually a first offer (“It began as a decision, then it became a bartering thing.”)’.

‘…there was a lack of clarity among participants about the different stages of the process, and, in particular, what the difference between a “preliminary” and “provisional” decision means in practise. Few customers were certain whether they had received one or both (with one or two believing that the preliminary decision was when the Legal Ombudsman assesses your case and decides to take it on, and one or two others believing that the preliminary decision they had received from an investigator on their case was in fact a ‘final decision’).’

The researchers quote a complainant whose complaint was not upheld, describing the informal process as ‘quick and dirty’:

‘A first round, they would have looked at a quick and dirty response that says, “Sorry, here’s £200, go away”.’

Remedy terms and job titles

In terms of redress, ombuds often use the term ‘remedy’, but this was seen by some interviewees as ‘medicinal’, as if a dose of remedy would fix the problem. These interviewees argued that, where a financial remedy is being recommended, ‘compensation’, ‘cash settlement’ or simply ‘settlement’ would be more appropriate.

Job titles within ombud organisations were also potentially challenging in that, although they appeared to confer a welcome right to escalate a complaint (from, for example, investigator to senior investigator to Ombudsman), it also felt to some like scaling a great height, and in doing so it implied that the investigator’s opinion is less valuable.

 

The findings give valuable insights into the perspectives of users of redress mechanisms, including but not limited to ombuds. They also give pause for thought for anyone involved in the design of grievance and complaint procedures.

 

Being ‘ombidextrous’: revisiting questions from our mapping study of the use of informal resolution approaches by ombuds

Posted: May 21, 2017 | Author: | Filed under: EU ADR Directive, harmonisation, informal resolution, mediation, Nuffield Foundation, ombuds, research, terminology | Tags: , , , , | Leave a comment
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MC Escher, Drawing Hands (Image source: Wikipedia)

 

In advance of the next biannual conference of the Ombudsman Association (on 25-26 May 2017, at Loughborough University), we thought it would be worth republishing[1] our conclusions from our mapping study of informal resolution approaches used by ombuds. We conducted this mapping research in 2014, and no doubt practices and approaches have moved on since then for many of the organisations in our study. The issues, however, remain as pertinent as ever, and as unresolved.

By Varda Bondy, Margaret Doyle and Carolyn Hirst

Conclusions and discussion points

Ombuds are themselves a type of informal resolution mechanism when seen in the context of ADR, being alternatives to judicial determination in court or tribunals, as pointed out by several of those responding to the survey. This study explored the informal processes that make up part of the overall ombud complaint-handling work. These are primarily the processes that do not involve investigation, adjudication and determination, the ombud’s traditional role. For some respondents this presented some confusion, used as they are to describing their overall process and approach as ‘informal’.

This was a scoping project designed to produce a descriptive mapping study, identifying the schemes that use informal resolution and those that do not, the reasons for doing so and the nature of those processes. Where possible, figures are provided in respect of various aspects of practice, but these need to be read as illustrative of models and trends rather than as a definitive representation of each individual scheme; even during the relatively short duration of the project in the first half of 2014 there were changes in the membership of the Ombudsman Association, new annual reports were published, and some schemes were in the process of changing their informal resolution processes.

The focus of this report is naturally on the 36 of 48 participating schemes that use some form of informal process, but in order to understand the nature of this aspect, it is necessary also to investigate the schemes that do not. In respect of some such schemes, for example those of a regulatory nature, it may appear obvious at first blush that informal resolution is inappropriate. Yet bodies of similar functions presented a variety of different approaches.

Main themes

The main themes to emerge from this survey are:

Terminology

It is apparent that some of the common terms used by ombuds mean different things, and conversely, similar terms are used to describe quite different processes. For example, does ‘mediation’ mean a full process conducted by a qualified mediator, or a settlement brokered by way of shuttle negotiations by a case officer on the basis of their assessment of what is a fair or expedient outcome? We came across both of these understandings of mediation.

We also found that mediation was not necessarily synonymous with early or even informal resolution. In at least one scheme, mediation takes place only after an investigation has been carried out and the complaint upheld. Similarly, one scheme refers to ‘conciliation’ as the informal part of the process, whereas another describes it as a formal process.

Does terminology matter? We think it does. The proliferation of terminology, at times contradictory, can be confusing for complainants as well as to complaint handlers as the terms used can also impact on how they exercise their function.

It is possible that consistent use of dispute resolution terms can lead to better matching of complaint to process, resulting in better outcomes – a point made by the National Alternative Dispute Resolution Advisory Council of Australia (NADRAC). NADRAC also suggests that common terminology contributes to consistent and comparable standards and provides a basis for programme development, data collection and evaluation.[2] Carrying out any comparative analysis of ombuds and complaint handlers is difficult when, as we have found, they each report using different terminology and different understandings of the same terms.

Criteria

What principles guide investigators in deciding whether to use informal resolution? What criteria, if any, are applied? We established that only a minority of schemes have some form of written criteria setting out when informal resolution can be used, and of these, only three are published and available in the public domain. Guidelines adopted informally by schemes include numerous references to case handlers’ judgements based on experience or knowledge, but little of what might be considered criteria.

On the whole, it appears that this is often a matter for individual caseworkers to decide. Is it a matter of, as one former ombud has said, ‘Like the elephant or the rhinoceros, you know one when you see one.’?[3]

Process

In addition to the difficulties of navigating the terminology applied, arriving at a common understanding of the machinations of specific process terms (mediation, conciliation, etc.) proved problematic. In other words, it was hard to tell what happens in practice. We believe that the majority of schemes employ shuttle negotiations by telephone and in writing, but only a handful of participants described the process in detail.

Publication of outcomes

Transparency and accountability are principles that all ombuds subscribe to. Indeed, the vast majority of schemes publish annual reports containing a variety of aspects of their work. Invariably, these include figures about the volume of complaints received and how they are addressed and concluded. However, there are nearly as many ways of presenting those (and other) facts as there are schemes, with the result that meaningful comparisons are almost impossible.

Discussion points and further research

This report is intended to raise questions for discussion and to identify areas for further research. Below are key discussion points arising from the study, as well as suggestions for issues arising from the study that require further research.

Describing, not defining

Should we move away from the problems of terminology and instead of defining the processes used by ombudsmen and other complaint handlers, should we attempt to describe them? This is the approach of the NADRAC[4] and of the EU ADR Directive. Both identify three types of ADR process: for NADRAC, these are advisory, facilitative, and determinative; for the ADR Directive, they are advisory, proposing, and imposing. Into these three fall the specific ADR process terms such as mediation, conciliation, early neutral evaluation, adjudication, arbitration, etc.

It may well be, as NADRAC believes, that it is impossible, and indeed inappropriate, to prescribe how such descriptions should be used by ADR providers. However, it seems sensible to require at the very least (and NADRAC supports this) that ‘descriptions of the actual process used by any provider should be available in forms that are easily understood by the users of the service’.[5]

In 2010, the Office of Fair Trading, in a summary guide to dispute resolution systems for consumer redress in the United Kingdom, stated that:

‘A useful distinction can be drawn between procedures in which a neutral third party proposes or makes a decision (ombudsmen, adjudicators, arbitrators) and those where the neutral party seeks to bring the parties together and assist them in finding an agreement by common consent (conciliation, mediation). Which of the above procedures is most appropriate will depend on the nature of the dispute to be resolved.’[6]

Such a distinction suggests a binary framework – the procedure is either one in which a decision is proposed or imposed by the scheme or one in which the parties reach an agreement by consent. It is a familiar framework. Applying it to ombud procedures, however, presents some difficulties as it does not reflect the actual practice of most ombuds, most of whom appear to be practising what the Administrative Justice and Tribunals Council, in its 2012 report ‘Putting It Right’, defined as

‘an independent person assessing the claims made by each side and giving an opinion on a) the likely outcome in court or tribunal [or, it could be added, likely ombudsman decision], b) a fair outcome, and/or c) a technical legal point. It is non-binding, and the parties decide how to use the opinion.’

Consensual agreements are different in an ombud context than they are in other areas, such as civil mediation generally. In this context, consensual agreements are not only of interest to the parties involved in the complaint, but potentially have wider significance. They are not made in a vacuum but in the ‘shadow’ of the ombud’s authority.

Ombuds have a place in the wider ADR sphere, but perhaps as an ADR process in itself (‘ombudsing’?) alongside mediation, conciliation, arbitration, etc. Unless we understand a process of ‘ombudsing’ as a distinct and defined process to sit alongside mediation and arbitration, for example, we have a confusing lack of clarity about what it is that ombuds are actually offering process-wise. What is missing, and appears to be needed, is a classification of the processes used by ombuds and their complaint-handling cousins.

Suggested framework of processes used by ombuds

In 2011 the Law Commission[7] identified three ways in which ombuds dispose of complaints: ADR, investigation and report, and dismissal. The latter ties in with one of the ‘resolution’ methods identified by some respondents to our mapping survey: rejection of the complaint. However, for the Law Commission ‘ADR’ included, in the majority of cases, the ombud informing the public body of the complaint made and encouraging the public body to resolve the matter. This might be described as a ‘referral back’.

In our mapping survey, we have identified a further ‘resolution’ process used by ombuds and complaint-handlers: advice to the complainant, possibly including signposting to another organisation.

It is possible to set out, in the ombud context, a spectrum of ‘resolution responses’ being used:

  • rejection
  • referral back
  • advice and signposting
  • bringing the parties together to facilitate an agreement by consent
  • hearing from the parties and proposing a solution
  • investigating and making (imposing?) a determination

Given the important role that ombuds have in improving service provision and complaint handling by the bodies they investigate, one could add, on the top and bottom of the above list, prevention and lesson learning.

But once a complaint has been accepted and is being looked at by the scheme, what are the key processes used to ‘resolve’ them? They appear to fall under the three broad headings in the final bullet points of the list above:

  • bringing the parties together (process) to facilitate an agreement by consent (outcome)
  • hearing from the parties and negotiating (process) and proposing a solution (outcome)
  • investigating (process) and making, or imposing, a decision (outcome)

This echoes both the NADRAC descriptions and those in the EU ADR Directive.

Training and skill set required

A question for ombuds and complaint-handling schemes is whether caseworkers have the appropriate skills needed if they want to increase the number of complaints resolved through informal processes and improve the quality of the process. The use of quicker and less formal methods of complaint determination, in addition to the more traditional method of adjudication, is broadening the skills set that complaint handlers need to possess. And different skill sets need to be valued by the organisation as a whole:

‘Getting our managers to think more about coaching and shifting that behaviour away from the legalistic kind of checking… and that has an impact on our board as well because it means that our board would need to recognise behaviours that normally they don’t see… the organisation would… in the past… probably value people with that… legalistic bent whereas in the future the real value comes from people who are good at talking and fixing things and that’s quite a change.”’[8]

What skill set is needed for a resolution focus, and is it different from that needed for investigation and determination? If so, what specific training might be needed to ensure a consistent approach to informal resolution?

Is it desirable, and possible, to develop agreed best practice (in process, training, data recording)?

An earlier study of ombuds’ use of ADR[9] concluded with a number of suggested principles – including clarity about the processes, transparency about the criteria for using different processes, and informed consent by the parties – and suggested actions, including staff training and assessment and evaluation of outcomes achieved through informal resolution processes. Is it time to revive interest in the development of best practice guidance?

Is informal resolution a necessary form of filtering in an age of austerity?

To some extent, is informal resolution is a form of ‘filtering’ – identified in a recent report as ‘a major part of the work of complaint handlers’?[10] Filtering can involve any or all of the functions of resolving, signposting (directing a complaint to an alternative appropriate route of redress) and rejecting.

Is informal resolution a sign of failure?

Two schemes that have a low rate of informal resolution, and one scheme that is said not to be using informal resolution at all, told us that a low rate reflects good complaint handling practice on part of body complained against. Conversely, a high rate of informal resolution by ombuds suggests a failure in the system, in that complaints capable of being resolved informally should be resolved at an earlier stage. Is this an indication of a mood change among ombuds in their attitude to informal resolution?

Does greater use of informal resolution pose a threat to ‘justice’?

Can it be said that the methods of informal resolution of complaints provide the information that ombuds need in order to fulfil their role in promoting service standards, first-tier decision-making and good administration? And for ombuds dealing with private-sector providers and services, does informal resolution put them at risk of being assembly lines of mass case processing, a sort of ‘Complaints ‘R Us’?

Future research

This mapping study has shined a light on the informal processes used by ombuds and other complaint handlers in the UK and Ireland. It is a limited light, and there is more to learn and study.

First, we have noted that many organisations with a significant role in complaints handling – whether as part of administrative justice or consumer redress – were not included in this mapping survey. Broadening out the mapping work to include these other relevant organisations would be helpful.

Although we have focused on the ombuds community, we are sensitive to the overlaps between ombuds and other routes to redress for complainants. There is much opportunity to share learning between courts, tribunals and ombuds, for example. It would be useful to explore the extent to which ombudsmen might adopt the ‘mapping’ factors for identifying the appropriate dispute resolution route for tribunal claims.[11]

Specific aspects covered in this research require closer examination, including:

Process: There is a need for in-depth research on how the process actually works and to identify the appropriate realistic methodology for studying the journey of a complaint from initial acceptance, through resolution and outcome.

Outcomes: How is ‘success’ defined in informal resolution context? We have examined the use of informal resolution, but its success is an area for further exploration. There is also a need to examine the views held by users of ombud services (both complainants and those in the departments and organisations that are the subject of complaints).

Criteria: For many schemes, informal resolution appears to be the default approach to complaint handling, with a move to investigation if the complaint did not resolve at this stage of the process or if there was some reason to investigate. On reflection, a more informative and potentially productive question to have asked in our survey would been ‘What are your criteria for deciding whether or not a complaint needs to be investigated?’

Timescales/speed: This survey did not ask specifically about timescales of informal resolution processes, but what we were told was intriguing and worth further study. Only a handful schemes told us they have a timescale (time limit) for attempts to informally resolve a complaint (ranging from one hour to one day mediations, to ten working days).

Classification of disputes

One further question arising is whether some processes are more suitable for some types of complaint, and whether there is scope to developing classifications that can be used across the range of schemes. There is also a need to explore whether the same category of complaint is dealt with differently by ombuds in different jurisdictions. Such classification could help in developing guidance on what disputes and complaints, and in what circumstances, are best suited to particular resolution approaches.

In the ombud context this differs from guidance on the suitability of mediation and other forms of ADR because ombuds have a wider, authoritative role. They are not simply dispute resolvers but have the additional (and some would say more important) responsibility to influence good practice by bodies in jurisdiction. They do this through their determinations as well as through their ‘good offices’ – persuasion, guidance, and feedback.

The classification of disputes may be needed in order to identify a comprehensive approach for influencing how cases should be allocated to a route to redress – what forum for which fuss. This might involve categories of complaints – e.g. fundamental rights cases, in which adjudication is necessary, and, at the other extreme, ‘cases where the claimed entitlements could not themselves satisfy the claimants and where the interests of all parties might be better served by a negotiated resolution’.[12] Endorsing the view that a proportionate and appropriate system must involve a range of dispute resolution techniques, the AJTC identified a number of principles and mapping factors to help identify the suitability of a specific dispute resolution process, such as early neutral evaluation, mediation, and traditional hearing.[13]

Finally

These are only some of the aspects considered in this report. Our aim has been to present a nuanced snapshot of the ethos and practices of informal resolution by ombuds at the time of conducting the research. We hope this will further the understanding of current issues and research needs in this field, and lead to greater consistency in the use of terminology and processes in future.

 

[1] This is the final section of our report ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland: A mapping study’, which was funded by the Nuffield Foundation and supported by the University of Essex and De Montfort University. We have republished it here unchanged aside from replacing ‘ombudsman/men’ with ‘ombud/s’ when used in a generic sense.

[2] National Alternative Dispute Resolution Advisory Council (2003) ‘Dispute resolution terms: The use of terms in (alternative) dispute resolution’ (Canberra: National Alternative Dispute Resolution Advisory Council): 1.

[3] Jefferies, R (2001) “A review of mediation”, The Ombudsman, Issue 15 (March).

[4] See, for example, National Alternative Dispute Resolution Advisory Council (2000) ‘The development of standards for ADR: Discussion paper’ (Canberra: Legislative Services, Commonwealth of Australia): 6.

[5] National Alternative Dispute Resolution Advisory Council (2000).

[6] Office of Fair Trading (2010), ‘Mapping UK consumer redress: A summary guide to dispute resolution systems’, OFT1267 (May).

[7] Law Commission (2011) ‘Public Services Ombudsmen’, Law Com No 329, HC 1136 (London: The Stationery Office).

[8] Gill, C, Williams, J, Brennan, C and O’Brien, N (2013) ‘The future of ombudsman schemes: drivers for change and strategic responses’, a report for the Legal Ombudsman (Edinburgh: Queen Margaret University).

[9] Doyle, M (2003) ‘The use of ADR in ombudsman processes: Results of a survey of members of the British and Irish Ombudsman Association’, (London: Advice Services Alliance).

[10] Bondy, V and Le Sueur, A (2012) ‘Designing redress: a study about grievances against public bodies’ (London: Public Law Project): 55.

[11] Administrative Justice and Tribunals Council (2012) ‘Putting it right – A strategic approach to resolving administrative disputes’ (London: AJTC): 36–37.

[12] Richardson, G and Genn, H (2007) ‘Tribunals in transition: Resolution or adjudication?’ Public Law 2007, pp.116-141: 141.

[13] Administrative Justice and Tribunals Council (2012) ‘Putting it right – A strategic approach to resolving administrative disputes’ (London: AJTC).

 

About the authors:

Varda Bondy, Margaret Doyle and Carolyn Hirst are the co-authors of ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland: A mapping study’, which was funded by the Nuffield Foundation. More information about the project and the team is available at http://www.ombudsresearch.org.uk, where there is also a blog covering aspects of research on ombuds and complaint handlers.

Studying informal resolution approaches in Freedom of Information complaints: new research

Posted: March 22, 2017 | Author: | Filed under: informal resolution, research, transparency | Tags: , , | Leave a comment
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ico.org.uk

Here we report on new research on the use of informal resolution in handling complaints about Freedom of Information. The research is reported in ‘Alternative Systems of Dispute Resolution and the Right to Freedom of Information’, Kevin Dunion and Hugo Rojas TRANSPARENCIA & SOCIEDAD, No. 3, 2015, pp. 69-91.

Arising out of research jointly conducted by Kevin Dunion, Honorary Professor at Dundee Law School, and Hugo Rojas, Professor of Sociology of Law at the Universidad Alberto Hurtado, Chile, this article explains the negotiation and facilitation models applied by the Information Commissioners in Scotland, England, and Ireland to informally resolve, at an early stage, Freedom of Information complaints or appeals.

The authors state:

‘A legal system should do more than just recognise the right to freedom of information. In order for the relevant laws to be effective, it is imperative that any appeals against public agencies that do not supply the information requested by the applicant are resolved in a timely manner. If the public agency responsible for resolving freedom of information appeals promotes an overly formalist culture, focused mainly on public law, the review and case analysis of the disputes could take longer than is reasonable. In addition to impairing the effectiveness of the law, delays in resolving the cases lead to public dissatisfaction with freedom of information procedures, and a lower level of confidence in the authorities and civil servants responsible for them.’

Several countries have explored alternative mechanisms to the formal decision notice that the competent entity would normally be required to issue to deal with the claims and appeals on Freedom of Information. The authors analyse the informal resolution practices used by the Information Commissioners in England, Scotland, and Ireland and recommend the informal resolution methodology of these organisations could be replicated and refined in other countries.

The suitability of informal resolution for different types of complaints about Freedom of Information requests is a key consideration. The authors note that some complaints, especially those involving ‘service’ issues, may be more amenable to being informally resolved:

‘The use of an IR is readily understandable in circumstances in which the complaint relates to the service provided to a client or user, which is often a subjective question that an Ombudsman has to resolve. However, when it concerns freedom of information it might be considered that the IR has less of a practical application. If the right to freedom of information is acknowledged in law, normally it has a general application as regards the majority of public agencies, and ultimately, an appeal should be resolved through a public decision notice.’

The first part of the article describes the alternative dispute mechanisms used by these Information Commissioners. The second part discusses the merits and effectiveness using of informal resolution in Freedom of Information cases.

A critical review of those models is made to identify elements that may be useful for comparable Latin American public agencies which protect the right of Freedom of Information.

This study was done within the framework of the EUROsociAL II Programme of the European Union, which is a coordinating partner of the FIIAP Foundation and operational partner of the CEDDET Foundation.

 

Informal resolution of complaints by Armed Services personnel

Posted: June 15, 2016 | Author: | Filed under: informal resolution, ombuds | Tags: , , , | Leave a comment

Nicola Williams discusses how her scheme assesses the suitability of informal resolution for complaints made by those serving in the UK Armed Forces. This was one of the themes in our mapping study of how ombuds use informal resolution: do they have criteria for assessing the suitability of informal resolution, rather than investigation, of complaints? This post was originally published on 11 April 2016 on the website of the Service Complaints Ombudsman for the Armed Forces and is republished here with permission.

Nicola Williams

By Nicola Williams

Service personnel who are considering making a complaint often contact my office for information on the process.  At times what they want to know is whether making a Service complaint to their Commanding Officer (CO) locks them into the formal complaints process, or whether they can still have their complaint resolved informally.  The simple answer is that it doesn’t lock them into the formal process.  In most cases it is for the individual making the complaint to decide whether they would like to follow a formal or informal process, but not all complaints can be resolved informally.

Complaints are made about many different issues.  Some of those issues only affect one person and others have the potential to affect many.  While all complaints are serious to the person raising them, some complaints involve very serious allegations that require thorough investigation whereas others can be resolved quite quickly without any investigation. In many instances Service personnel will wish to pursue informal resolution as they perceive that the process is faster. However, formal complaints should be handled without unnecessary delay and therefore speed is just one factor.

When deciding whether informal resolution is appropriate, the questions that need to be asked are:

  • Is this an issue that can be resolved quite quickly without investigation?
  • Will informal resolution provide a way to resolve the situation before a bigger problem develops?
  • Is the outcome I want to achieve by making a complaint possible if the complaint is handled informally?

When raising a complaint, any Service person who wishes to consider informal resolution should discuss these factors with their CO to help them decide whether informal resolution is appropriate for their complaint.

A good example of where informal resolution may be appropriate is in cases where complaints concern performance appraisals.  If a Service person made a complaint that they were unhappy with something that had been written in their report, the CO might agree that it is appropriate for a particular word or phrase to be removed or rewritten. If the individual was happy that this addressed their complaint no investigation would be required and the change could happen quite quickly.  However, had the individual made a complaint that they were given a bad report due to bias or discrimination that would require an investigation as they are very serious allegations that need to be proved in order to reach an outcome.

Another example of where informal resolution may be appropriate is where there is workplace conflict that has the potential to be resolved through mediation. Mediation is a form of alternative dispute resolution where a third party brings two people together to discuss the issues affecting their working relationship.  The purpose of the discussion is to have both sides understand how the other person feels about the situation and to try and find an appropriate and positive way to move forward.  This can be a very effective way of resolving conflict when it is used at an early point. Mediation may not be appropriate where the conflict has escalated and certainly cannot be used if either party is unwilling as it is a voluntary process.

In the past individuals have raised concerns with my office that they felt pressure to engage in informal resolution, or that they withdrew their formal complaint believing it would be resolved informally, but no action was ultimately taken to resolve their complaint. Whether Service personnel choose to pursue their complaint formally or informally, they should feel confident that it will be handled properly and without undue delay. As the Ombudsman I have the power to investigate alleged undue delay in the handling of informal complaints. I hope that this will provide Service personnel with the assurance that they can choose to pursue informal resolution and come to my office if they believe there is unwarranted delay in the process.

I encourage individuals who have raised a complaint to consider alternative options that could lead to an early and satisfactory resolution where it is appropriate to do so. If informal resolution is pursued initially but is not successful, it is still open to the individual to make a formal complaint if they wish. Ultimately it is for the individual to decide which process they want to follow – no one should feel that they are being forced to accept an informal process when they want to pursue a formal complaint.

 

About the author:

Nicola Williams is the Service Complaints Ombudsman for the UK Armed Forces.

 

Alice meets ombud, that fabulous monster

Posted: June 9, 2016 | Author: | Filed under: EU ADR Directive, harmonisation, informal resolution, Nuffield Foundation, ombuds, research, terminology | Tags: , , | 1 Comment

alice_in_wonderland_clip_art_24772

 

“’Ah, what is it, now?’ the Unicorn cried eagerly. ‘You’ll never guess! I couldn’t.’ The Lion looked at Alice wearily. ‘Are you animal — or vegetable — or mineral?’ he said, yawning at every other word. ‘It’s a fabulous monster!’ the Unicorn cried out before Alice could reply.”

Our colleague on the ombudsresearch team, Carolyn Hirst, gave the keynote address at the 2016 conference of the Australian and New Zealand Ombudsman Association (ANZOA) in May. Her address, which is available here, explores the context in which ombuds in the UK are changing and the challenges these changes present. She traces the evolution of UK ombuds and gives a clear overview of the stages of development. She also considers the contributions made by recent research on ombudsry, including work she and colleagues at Queen Margaret University have carried out, work by Naomi Creutzfeldt and Chris Gill on online ‘ombuds-watchers’, and our team’s mapping work on informal resolution by ombuds. She notes the impact of recent developments such as the EU ADR Directive, which is not only ‘resulting in procedural change for ombud schemes here but is having an influence across the UK redress landscape by impacting on existing models of redress and encouraging new and often rival ADR providers to emerge’.

A self-described ‘pracademic’ (practitioner and academic), Hirst is honestly reflective about her concerns about the state of ombuds now and going forward:

“A question which has been bothering me for a while is whether the purpose of an Ombuds is to determine disputes by way of adjudication or to resolve conflicts by enabling parties to come to a consensual agreement? Or is it both? For me, this goes to the core of what it is that an Ombuds does. And I think that associated with this are the increasing tensions for Ombuds between the concepts of right, fair, just, and reasonable.”

Citing work by our colleague Nick O’Brien to retain the democractic accountability role of ombuds in the face of rushing consumerism, Hirst notes the tension between the ‘micro’ and ‘macro’ functions of ombuds: “‘Micro-justice’ or individual redress can work well, but Ombuds also need to consider the needs of ‘macro-justice’ and the interests of citizens who are not party to the individual dispute, but who may be affected by the matter complained about.”

Hirst is an impassioned supporter of the ombud institution, and in her critiques she plays the role of critical friend: “I think that the fabulous creatures which are Ombudsmen can be one model with many applications, as long as there is both clarity and confidence about who they are and what they stand for.”

“So where do we want to go? I think that one of the biggest challenges ahead for UK Ombuds is to decide what they want to be. And in doing this they need to be out, loud and proud in clarifying their place and role as a distinctive and integral part of the dispute resolution landscape.”

Welcome to Dublin!

Posted: February 23, 2016 | Author: | Filed under: informal resolution, Ireland, ombuds, research, terminology | Tags: , , , | Leave a comment
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Blooms Lane, Dublin

One of the difficulties with mapping work is that the landscape tends to change, often quite rapidly – something that’s as true of cities as of research. The ombudsresearch team’s visit to Dublin last week included a brief tour of the city’s ‘Italian quarter’, a new(ish) area with housing and cafés created by politician and developer Mick Wallace, including a new pedestrianised street, Blooms Lane, where no street existed before. (The street doesn’t appear on all maps of the city – but it does feature a unique mural by artist John Byrne, ‘Dublin’s Last Supper’, with portraits of several of the city’s notorious inhabitants.)

 

 

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Dublin’s Last Supper, John Byrne

The terrain of ombuds complaints-handling practice has also changed since we mapped it in our study, something we learned at the Irish ombudsman staff conference on 19 February. We were invited to present our study of the use of informal resolution approaches by ombuds in the UK and Ireland, our Nuffield-funded mapping research published in autumn 2014 (the report is available here: The use of informal resolution approaches by ombudsmen in the UK and Ireland ). We were warmly welcomed by Kieran FitzGerald of the Garda Siochana Ombudsman Commission (GSOC) and Peer Tyndall, Ombudsman for Ireland.

 

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Kieran FitzGerald and Peter Tyndall

Before the conference, we were invited to meet with Nuala Ward of the Ombudsman for Children. After marveling at the enormous bean bags and cinema for visiting children, we discussed with Nuala the implications of greater use of informal resolution approaches in terms of achieving justice for children and young people in Ireland. We were also impressed with the scheme’s own initiative powers, especially given the obstacles many children and young people face in making complaints.

 

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Nuala Ward and Margaret Doyle

Afterwards, we presented our research to the gathering of staff from the many and varied ombuds schemes and commissioners in Ireland, all of whom had generously responded to our study. Attendees were not shy about challenging our findings. It was fascinating to discover, for instance, that the Garda Siochana Ombudsman Commission (GSOC), which handles complaints about the police, no longer uses face-to-face mediation between complainants and officers. It had been one of the five schemes (three of which are Irish schemes) using such an approach, albeit for a small percentage of complaints, but it found difficulty in getting consent from the parties.

One of the other schemes using face-to-face mediation is the Press Ombudsman – again, for a very small percentage of its complaints. That scheme raised interesting issues for us about terminology, because they use ‘conciliation’ to refer to their formal process, and ‘mediation’ as the informal process. The confusion about terminology is an issue that runs across the entire project and is something we’ve commented on specifically before. Why are schemes using different terminology for the same processes, and the same terminology for what appear to be very different processes? Bernie Grogan of the Press Ombudsman suggested that we might have been better off establishing what the process terminology (mediation, conciliation, adjudication) means before inviting responses to the questionnaire so that people would refer to the same terms.

Another suggestion from Peter Tyndall, Ireland’s national ombudsman, was that we could have asked respondents to describe what they do, and then develop a typology from the responses, rather than starting with definitions. This is similar to an approach taken by researchers from Queen Margaret University in a 2014 study of dispute resolution models used by ombud schemes internationally. In that, the processes were grouped into categories of evaluative, facilitative and conciliatory approaches. This helpfully avoided getting caught up in differing definitions.

We’ll take all those suggestions on board if and when we take this research further. One of the points that came across very clearly is that what’s needed is a more in-depth, up-close observation of what ombudsfolk actually do. What are the techniques and practices they use to resolve complaints early and informally? What do the parties feel about the experience? How do the outcomes compare to those decided following investigation?

A lively discussion followed our presentation. Participants discussed the possibility of a one-stop shop, or common portal, for complainants to access and be directed to the appropriate ombud scheme. Others mentioned the need for opportunities for training and development that are tailored for the staff of the schemes in Ireland, with a particular focus on investigation techniques. A representative from the Financial Services Ombudsman explained a recent change in their informal resolution approach, with more focus on resolution at an early stage. And a representative from the Ombudsman for Children noted that ‘resolution’ means different things to different people – for that scheme, resolution that is in the interests of the child is paramount. That scheme is also unusual in that it is seeing an increase in complaints, while others are seeing a decrease.

It was a great privilege to be in a room with so many knowledgeable and expert individuals. Although the terrain has shifted somewhat since our study, there is clearly an appetite to look more closely at the place of informal resolution in ombuds practice.

Human rights and discrimination issues in complaints: what is the ombuds’ role?

Posted: September 24, 2015 | Author: | Filed under: discrimination, equalities, human rights, informal resolution, research | Tags: , | 1 Comment

Earlier this month the Independent Police Complaints Commission (IPCC) published guidance on handling complaints about discrimination. The guidance follows a number of critical reports by the IPCC, which found significant failings in the way police forces carried out such investigations and engaged with complainants. It raises an interesting question: To what extent do ombuds and other complaint handlers hold bodies they investigate to account for discriminatory behavior and decision-making?

Fairness is a key concept of the ombuds approach: both fairness of decision-making and fairness of the processes used to handle citizen-consumer ocmplaints. Yet ombuds schemes and other complaint handling bodies in the UK have generally been reluctant to tread into the territory of naming discrimination and human rights breaches in findings on complaints. Part of the reluctance is the concern that any determination of a breach of equalities and human rights legislation must be made by a court. Breaches of human rights can, however, inform findings of maladministration, but as noted by Buck et al in The Ombudsman Enterprise, this innovative use of the law has its dangers, not least the risk of judicial review.

Promoting and protecting human rights is the primary function of National Human Rights Institutions (NHRIs), some of whom also have complaint handling roles. A current study of the role of NHRIs in dealing with human rights complaints is exploring how that complaint-handling role fits with the wider strategic function, and to what extent informal processes such as mediation are being used for these. (We were interested to note that the researchers are finding, as we did, that certain ADR and informal processes are ‘amorphous and difficult to isolate’ and that shared meanings and forms of, for example, mediation appear not to exist.) In some countries, the NHRI is also an ombud, but in the UK ombuds are separate organisations; the Council of Europe uses the term ‘national human rights structures’ to refer to those commissions, ombuds and police complaints mechanisms that have a human rights mandate but are not the accredited NHRI.

Last year the Equalities and Human Rights Commission published a guide to human rights in action. The section of the report on regulators, Inspectorates and ombuds (RIOs) includes several case studies, from the Parliamentary and Health Service Ombudsman, the Prisons and Probation Ombudsman and the IPCC, illustrating the use of the human rights framework in complaints handling and investigation.

Among those ombuds who have been proactive in identifying these issues in complaints is the Parliamentary and Health Service Ombudsman (PHSO), which has published a number of reports highlighting the human rights and discrimination elements of many complaints, particularly about vulnerable people in care or hospital (for example, this one on disability discrimination). The former Parliamentary and Health Service Ombudsman has stated that ‘the Ombudsman’s approach includes an overall concept of fairness, a fundamental commitment to the humanity of individuals and their right to equality in treatment and outcomes. Issues of discrimination and equalities underlie many of the complaints which come to the Ombudsman…’.

The PHSO makes clear in its general standards for determining complaints that it will expect a public body to comply with the equalities and human right legislation and will hold them to account:

‘It is not the role of the Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached: those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations….

If the public body is unable to demonstrate that it has had regard for, and taken account of, human rights, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.’

The Northern Ireland Ombudsman has been in the forefront if this work and has worked closely with the NI EHCR to develop a manual and training for complaint handlers to help them identify human rights issues in complaints they receive.

The UK Financial Ombudsman Service has published briefings on the need for businesses to comply with the Equality Act, such as this one. One of the issues is, as FOS points out, ‘consumers rarely articulate their complaint as “discrimination” – or invoke the Equality Act. More often than not, they’re simply frustrated at being unable to access the services they want or need to – and feel that the business’s processes are unnecessarily inflexible and impersonal.’

‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’ Nick O’Brien

An optimistic view is that ombudsmen in the UK will ‘increasingly contribute to wards the resolution of human rights issues in public administration, both in conducting investigatory work and in the office’s relations with other bodies’ (Buck et al, The Ombudsman Enterprise, 2011). Nick O’Brien, a human rights specialist and ombuds-watcher, has noted the increased consumerism plaguing ombuds schemes and argues that ombuds can mark themselves out among complaint-handling bodies by having a focus on discrimination and human rights issues: ‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’

How far do complaint handlers go in identifying discrimination or human rights as issues in complaints? How do ombuds and complaint handlers use the legal framework for discrimination and human rights in their casework and findings? Perhaps these questions need further research.

What do the parties think about informal resolution? Research needed!

Posted: January 30, 2015 | Author: | Filed under: customer satisfaction, EU ADR Directive, informal resolution, ombuds, research, users' views | Tags: , , | Leave a comment

We know a bit about what ombudsmen and other complaint-handlers think about using informal resolution approaches. In our mapping study, The use of informal resolution approaches by ombudsmen in the UK and Ireland, we asked ombudsmen why they use informal resolution. The answers tended to fall into one of two camps: because they are required or expected to do so by statute, or because it is simpler and quicker. The latter responses included acknowledging that speed can be a benefit for parties as well as for the ombudsman. Some also mentioned the added benefit of informal resolution helping to maintain or rebuild relationships between the complainant and the complained-about.

For the most part, however, views of what parties themselves think about the processes ombudsmen use to handle their complaints are conjecture or are gleaned from customer satisfaction research, complaints feedback, and other sources that have some limitations in terms of self-selection of samples and how robust the findings are.

A closer look: legal complaints

An interesting view of how informal resolution can benefit complainants and complained about in different ways appears in the Annual Report published yesterday by the Legal Ombudsman (LeO). The report states:

“We prefer to resolve complaints by brokering an agreement between the lawyer and the complainant. Therefore, our investigators attempt to settle complaints as amicably as they can, while bringing both parties (both the lawyer and the client) to a swift and mutually beneficial resolution. We call this “informal resolution”.

Where an informal resolution cannot be reached, either party may ask an ombudsman to make a final decision. At this stage the resolution will be based less on resolving the complaint amicably and more on what is deemed fair and reasonable.”

LeO reports that last year it resolved 39% of complaints informally (a slight decrease from the year before). Almost the same number (38%) were resolved by ombudsman decision. (The remaining 24% were either withdrawn or dropped by the complainant or discontinued by an ombudsman.) LeO expresses its disappointment that more complaints are not resolved informally:

“This is not the outcome we had hoped for, but as we have said in previous Annual Reports, the complexity of legal complaints means that often people want to exhaust all options before accepting a decision.”

The figures suggest there are more financial remedies agreed at the informal stage (67%) than recommended by ombudsman decision (40%). Most financial remedies are less than £1,000 (30% of ombudsman decisions, and 40% of informal resolutions).

The difference between outcomes of the two processes is most marked in the remedy ranges of £1,000 to £19,999: 9% of ombudsman decisions were in this range, but 17% of informal resolutions were.

LeO states:

‘In our view, these figures suggest that complainants do as well when accepting an investigator’s recommendation and opt for an informal resolution as they do when insisting on an ombudsman’s decision. It may also reflect an increase in the number of lawyers offering reasonable remedies at the first tier, which, if true, is a positive development.’

Good for complainants – what of the complained-about?

But for lawyers the opposite might be true. As Legal Futures has pointed out, in the report LeO urges

‘lawyers to think twice before pushing for formal decisions rather than accepting informal resolutions to complaints, even though the figures showed that the outcome of the former was less likely to result in the lawyer having to pay the client some money.’

LeO suggests that for lawyers, the advantages of informal resolution are in saving time and avoiding reputational risks. The report states:

‘While lawyers might be tempted to hold out for an ombudsman’s decision, they should factor in the additional time and resource they will have to put into managing the complaint and accept that the customer is likely to walk away feeling even less positive about their firm with the increased risk to their reputation that this entails.’

Yet another risk to informal settlements for parties complained about has been highlighted in relation to the Financial Ombudsman Service (FOS). An article last autumn in the financial press highlighted a loophole arising from court ruling on a FOS case, relating to whether a complainant can pursue further redress against a financial firm after a FOS decision:

‘The problem lies in the word “award”, which specifically applies to final and binding orders issued by an ombudsman reviewing a case.

In order to go before an ombudsman, a Fos complaint will first be reviewed by an adjudicator which would recommend a resolution. It is only passed on if either party rejects the recommendation.‘

The article suggested that if parties agree to an informal settlement (by adjudicator recommendation), the complainant could still be free to pursue more redress in court. It advises financial advisers (those complained about) to insist on either an ombudsman decision (so getting a final award that doesn’t leave them open to being sued for more, but risking being ‘named and shamed’) or a settlement via adjudicator that makes it clear it’s in full and final settlement.

Seeking parties’ views

Our mapping study found that very few ombudsman schemes ask their users for feedback specifically about informal resolution, though one reported that its ‘customer satisfaction research consistently shows informal investigations are the most popular type of investigation’ with both parties. Service complaints from users can also provide feedback on the processes used to handle complaints. Another ombuds reported that feedback on its informal resolution processes is generally positive, although some complainants question whether it treats the respondent service provider too softly.

The lack of information is striking when, as we found, most ombudsmen use informal resolution processes, and some for as much as 80% of the complaints they handle. We note in our report of the mapping study that there are calls for greater consistency in customer satisfaction reporting among UK ombudsmen. We also note, however, that the EU ADR Directive does not appear to contain any specific requirement to introduce customer satisfaction surveys or to gather feedback on case-handling processes.

It seems clear that research is needed on what users of ombuds schemes – both complainants and complained-about – think of processes used for complaints, and the outcomes they achieve.

 

Ebbs and flows: Select Committee explores changing role of Housing Ombudsman, including use of informal resolution

Posted: December 22, 2014 | Author: | Filed under: informal resolution, ombuds, transparency, Uncategorized | Tags: , , , | Leave a comment

In a pre-appointment hearing on 16 December 2014, the Communities and Local Government Select Committee questioned the preferred candidate for the role of Housing Ombudsman, a vacancy that opened up when the former ombudsman retired in October.

The recruitment process itself was unusual. There was a very short timetable (six weeks from advertisements to preferred candidate being identified). The Select Committee had not been involved in previous appointments but asked to hold a pre-appointment hearing in this case, citing its similar role with the Local Government Ombudsman. And the post is clearly a temporary one whose future is tied up with the Gordon review of the Parliamentary Ombudsman and the public services ombudsmen for England, announced by Oliver Letwin in July. All those aspects are of interest in themselves.

We’re interested particularly in the mentions of informal resolution that were made at the hearing. The candidate, Denise Fowler, is a civil servant, solicitor and former housing adviser. She has experience of working with the Housing Ombudsman, and she mentioned in her responses changes in the way the ombudsman approaches informal resolution. Our research on informal resolution found that the process changes she mentions were significant and not just a matter of terminology.

An extract of the session transcript is below, with commentary from our research findings:

Q22    Mark Pawsey: You told us that you worked at the Housing Ombudsman before, and that was 2000 to 2002, I think. Is that right?

Denise Fowler: Yes.

Mark Pawsey: That is 12 years ago now.

Denise Fowler: Yes.

Q23    Mark Pawsey: Regarding what you know about the Housing Ombudsman now, how is it different from what it was when you were there before?

Denise Fowler: What it looks like is that they have done a lot of work to move towards early resolution of complaints and real-time resolution of complaints.  From what I can see on the website, 87% of complaints are now resolved informally, which seems amazing.

Q24    Mark Pawsey: What would it have been previously?

Denise Fowler: I do not know what the exact figures were when I was there in 2000 to 2002.

Q25    Mark Pawsey: Was it significantly less than that?

Denise Fowler: Significantly less than that. We had an evaluation team that used to seek to try to work with landlords while issues were still going through the complaints procedure and try to resolve things earlier, and we had a procedure that had an informal and a formal determination, but it was a different procedure. That is one of the big changes.

[Commentary: Our research found that in 2013-14 the vast majority of complaints (5,004 out of 6,582 enquiries received) were closed by what the ombudsman calls ‘local resolution’. The change Fowler notes appears to reflect a significant change in process, with a number of complaints referred back for resolution between tenant and landlord. The ombudsman told us, in our research, “We will focus on helping the parties to reach resolution themselves through the available local procedures (primarily the landlord’s internal complaints procedures and also the designated persons).”

This contrasts with the scheme’s previous role in providing informal resolution itself. In the late 1990s, the Housing Ombudsman was perhaps the most innovative among ombudsmen in its use of informal resolution, or appropriate dispute resolution (ADR); a third of its complaints were either settled or rejected, but of the rest, it closed 20% of cases by informal conciliation, 25% by mediation, 6% by arbitration and 15% by binding decision.

With the implementation of the Localism Act 2011, the Housing Ombudsman changed the way complainants can access the scheme, envisioning a more active role in informal resolution by MPs, councilors and tenant panels. In practice, the Housing Ombudsman told us, “Our intervention will enable the parties to talk to each other to find a solution they can both accept. By being conciliatory and inquisitorial in our approach we can help bring about a better and longer-lasting solution to the problem and can help preserve the ongoing relationship between landlords and tenants. We will help the parties to reach a consensus or acceptable agreement which reflects the best possible outcome for all involved.”]

Q34    Chair: What about transparency?

Denise Fowler: That is exactly what I think should be happening. That is what I said about having that data and publishing it.

Q35    Chair: And publishing the results of investigations as well?

Denise Fowler: Yes. The results of investigations are done anonymously at the moment, aren’t they? There is an argument certainly if we get into formal investigations. There is an argument about informal resolution that it is helpful, to encourage informal resolution, to keep those anonymous, but in terms of the formal resolution, I think there is an argument for making those public.

Q36    Chair: One of the things that came up with the Local Government Ombudsman was that, where things were done informally and there were precedents that came out of a resolution, if it was simply not published in any form, that could not be used as a precedent in other cases.  Most people would not know about it.  Is there not an issue here to be looked at as well?

Denise Fowler: I think that is different from naming names.

[Commentary: Lack of transparency of informally resolved complaints has been a long-standing focus of criticism – for example, as noted by the Chair of this session, the CLG Select Committee noted concerns [http://www.publications.parliament.uk/pa/cm201213/cmselect/cmcomloc/431/43102.htm] about the Local Government Ombudsman’s use of mediation and informal resolution and stated: “the Commission needs to be completely clear how the distinct processes operate and differ as well as the criteria against which complaints are allocated to these resolution processes.”

Academics have also raised concerns about transparency of informal resolution by ombuds – for example, Richard Kirkham and Philip Wells in “The Ombudsman, Tribunals and Administrative Justice Section: Evolving standards in the complaints branch”.

Responding to the Law Commission’s 2010 consultation on Public Services Ombudsmen, Advice Services Alliance (ASA) said that the use of alternatives to investigation may reduce the transparency of the public services ombudsmen’s work. ASA conceded that such enhanced powers would be welcome if they delivered fair outcomes for complainants more promptly and suggested two key principles: transparency of outcomes and the right for a complainant to request an investigation.

On its website, the Housing Ombudsman publishes case studies, including those of informally resolved complaints.]

Following the pre-appointment hearing, on 18 December, the Select Committee endorsed Ms Fowler as candidate for the role. They did so on the basis that she retire from the civil service rather than take a career break, because of the need for the Housing Ombudsman to be – and to be seen to be – independent of central government. The committee’s report and minutes of the hearing are available here.

 

‘Friendly solutions’ – new report notes pros and cons of informal resolution

Posted: December 2, 2014 | Author: | Filed under: European Ombudsman, informal resolution, ombuds | Tags: , , | Leave a comment

Putting It Right? – How EU institutions respond to European Ombudsman (Nov 2014) is a new report focusing on cases in which the institutions complained about (European Union bodies, offices and agencies) have accepted the Ombud’s proposals and learned from past mistakes.

The report includes information on the range of possible outcomes of complaints considered by the Ombud and the responses by the body complained about. The range of outcomes, shown below, describes an escalation from consensual to the most critical and directive:

  • cases settled by institution
  • friendly solution proposed by the Ombud
  • draft recommendations
  • critical remark
  • further remarks

The report notes that although friendly solutions can provide good outcomes for complainants, they are not effective at achieving systemic change:

“The main way the Ombudsman tries to achieve redress for the complainant is by proposing a ‘friendly solution’[6]. [footnote: 6 Such proposals are based on Article 3(5) of the Statute, which provides that “As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint.”] Such a proposal aims at a win-win outcome that satisfies both the institution and the complainant.

While friendly solution proposals may include a provisional finding of maladministration, the Ombudsman often considers it more constructive to avoid stating, even provisionally, that there could be maladministration. Rather, she identifies a problem or shortcoming in the institution’s behaviour that could be solved if the institution adopted the proposed friendly solution.

Where redress should be provided, it is best if the institution concerned takes the initiative, when it receives the complaint, to acknowledge the problem and offer suitable redress. This could take the form of compensation to the complainant or a sincere apology.

Whilst friendly solution proposals often achieve good outcomes for the complainant, they are rarely an effective instrument to achieve systemic change in the public interest.”

An institution can choose to reject a proposed friendly solution. In 2013, only 9 friendly solutions were accepted. There are, however, incentives to accept – the next stage of a complaint is a draft recommendation, and these are published:

“If the institution rejects a friendly solution proposal without good reason, or such a proposal is unlikely to be effective, the next step is usually what Article 3(6) of the Statute terms a ‘draft recommendation’. It is better for all concerned if the institution accepts a friendly solution than if it first rejects a friendly solution proposal and then accepts a draft recommendation. Draft recommendations addressed to the institutions are, simultaneously, published on the Ombudsman’s website. The Ombudsman may also choose to draw public attention to the case and to her efforts to obtain a solution, by issuing a press release at this stage on the maladministration identified. With a view to avoiding such publicity, institutions should seriously consider the added benefit, for their own work and for the image of the Union more generally, of accepting a friendly solution proposal rather than waiting for the Ombudsman to make a draft recommendation.”

The next stage for complaints which are investigated but where no friendly solution or recommendations are accepted is a ‘critical remark’. The report notes that “a critical remark does not constitute redress for the complainant. In many cases, a better outcome would have been for the institution concerned to settle the matter itself by acknowledging the maladministration and offering suitable redress.”

But the report also notes that complainants are not always right, “and the institution concerned is entitled to defend its position. About half of the cases that are not settled by the institution at an early stage eventually give rise to a finding of no maladministration.”

The Annex to the report gives examples of complaints closed by friendly solutions that were accepted by the EU institution.

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