A proposal for an Ombud for Future Generations

The Ombud’s role in environmental governance and sustainable development at national and international level: the protection of future generations

In this post, Vassiliki Vretou discusses her new book, which deals with the Institution of the Ombud and its role in protecting environmental rights, including those of children and future generations. She makes the connection between human rights and environment and highlights the Ombud’s role in environmental governance, and she proposes the establishment of an Ombud for Future Generations operating at international, national and regional levels.

By Vassiliki  Vretou 

In the age of modern capitalism, the legitimate in-principle freedom to consume leads on the one hand to exhaustion of natural and other resources and on the other to degradation and substantial reduction of freedoms and choices of groups and individuals who lack power and are disenfranchised. However, one of the most particular characteristics of modern times is that the freedom to consume that is enjoyed by the present generation can deprive future generations of basic goods. A contradiction bedevils our time, best illustrated in the phrase, ‘freedom without acceptance and assumption of responsibility can destroy the very freedom ‘, while it is rightly argued that solidarity with ‘others’ is necessary in order to protect ‘us’.

This PhD dissertation, to be published initially in Greece, deals with issues of intergenerational equity, with the main purpose to reveal new rights and obligations which must from now on imbue the relations of this generation with future generations, with the latter being considered as a legal entity to be taken into account.

The premise of this work is that many current actions will have an impact on the near and even more on the distant future, affecting the interests of future generations, a fact with which contemporary human society and its political leaders must engage. In order to safeguard the interests of future generations and establish a common reference, a new institution should prevail within the framework of global environmental governance and be able to act for future generations and function on the terms of New Ethics. This institution should take the form of an Ombud operating at an international level with substantial institutional authority to engage with all peer institutions that could be involved in the management of this new problem.

In developing this proposal, I carried out research into similar international institutions dealing with human rights and environmental protection and compared similar national institutions on the basis of a special questionnaire forwarded to Ombuds institutions and NGOs in EU countries. The research has moved across the spectrum of multilevel environmental governance at international, regional and national levels. The study of environmental governance, as shaped through theoretical and practical convergences and controversies over the last thirty years, has become focused on issues of sustainability, intergenerational equality and the pursuit of obligations of present generations, or future generations, in relation to a healthy and quality environment. It was not limited to the theoretical field, but also sought practical documentation of its conclusions: for the completeness of the study – as already mentioned – a special questionnaire was drafted, which was sent by e-mail to relevant bodies and institutions, mainly European and international. The responses were evaluated and conclusions were drawn.

A multifaceted analysis of the research findings provides the necessary evidence that it is not a luxury to establish such an institution, which can act as a special mediator and consultant starting with ‘the silent environmental victims’ and giving voice to the rights of future generations.

An outline of the work is set out below.

Research structure and methodological choices

This work consists of Introduction, three parts and nine chapters.

Part One is entitled ‘The environmental legal order with an emphasis on future generations’ and consists of four sub-chapters. This partrefers both to the existing environmental contractual framework – either as a hard law or as a soft law – and to national constitutional provisions that make direct and/or indirect reference to the existence of future generations and the rights or obligations of present generations toward ensuring a clean environment. Part One also reflects on the decisions of courts or other committees – which function as quasi-courts – that have dealt with the issue of future generations, mainly considering environmental cases and environmental degradation issues. Especially important is the reference in very recent developments, including in appeals and court decisions.

Chapter 1, entitled ‘The Modern Trends of International and Union Legislation on the Environment and Future Generations’, provides a detailed listing and evaluation of the contractual framework that makes reference to the environment and future generations.

Chapter 2, entitled ‘Current trends in national environmental legislation and future generations’, provides detailed research, reference and recording of national constitutions referring to and protecting the rights and interests of future generations.

Chapter 3, entitled ‘Current trends in environmental case law and future generations’, presents both older and more recent court rulings and lawsuits, which have not yet been dealt with. The key point was again to refer to trans-generational[DMT1] equality, future generations and the question of the possibility of legal representation by members of the current generation to argue for the right to a clean and healthy environment.

Chapter 4, entitled ‘The foundation of a future generations right in the environment’, addresses the theoretical discussion and concern raised by the foundation of a future generations right, with an emphasis on the environment. In particular, this chapter explores the starting point and ongoing path of the development of a legal right to a healthy, clean and safe environment. I consider this right as a focal point for the rights of future generations and for the new responsibility of humanity that emerges through a new two-way understanding and conception of the time and course of humanity within it. Finally, this chapter analyses the possibility of having and guaranteeing the right of future generations to the environment. This section defines the concept of ‘future generation’ and deepens the discussion of the responsibility or obligation of the present generation towards the future generation.

Part Two is entitled ‘An Ombudsman for Future Generations’and records the gap that exists in existing international environmental governance and the need to formulate and implement a new proposal that raises the issue of future generations and environmental issues. This demonstrates the need for the process of institutionalising and recognising an Ombudsman for the environment and future generations.

Chapter 5, entitled ‘The Importance of an Ombudsman for Future Generations’, makes selective reference to some of the key international environmental organisations, such as the UN Environment Program (UNEP) and the Commission for Sustainable Development (CDS). What emerges is that existing institutions do not have the competence or specialised staff to handle the issues of future generations and to act expressly on their behalf. The Ombud institution, its key features and its positive and negative characteristics, is discussed.

Chapter 6, entitled ‘Key Proposals for Creating an Ombudsman for Future Generations’, presents key theoretical proposals to create an institution for future generations. Proposals are presented in chronological order. At the end of the chapter, I present, in detail, all the existing national institutions (Ombuds) that are already functioning with the responsibility of protecting the interests of future generations.

Part Three, entitled ‘Research Conclusions and Thesis Proposal’, covers the final three chapters of the thesis and explains the research methodology and an overview of the findings and the arguments for the proposal.

Chapter 7, entitled ‘Field Research Evaluation’ presents the questionnaire developed for the research and sent mainly to representatives of national Ombuds in European countries. Subsequently, the answers to each question are grouped together and the conclusions are finally evaluated. The responses to the questionnaire are at the end of the Annexes.

Chapter 8, entitled ‘The findings of the theoretical research, sets out the conclusions drawn from the previous chapters.

Chapter 9  sets out and discusses the rational, moral and legal arguments for the proposal for an Ombud for Future Generations.

About the author:

Vassiliki K. Vretou is a Lawyer-Senior Investigator with the Greek Ombudsman  (Synigoros tou Politi), in the Department of Quality of Life & Environment. Since 2017, she has been seconded to the General Secretariat of Greek Government.

Vretou is a PhD in International and European environmental and sustainability matters. She specialises in environmental law and her main work is to mediate between citizens and public services, with the view to protect citizens’ rights, combating maladministration and ensuring respect of legality.

She can be contacted at v.vretou@yahoo.gr or vassilikivretou@gmail.com


New research resource on ombuds

Research Handbook on the Ombudsman

Edited by Marc Hertogh, Professor of Socio-Legal Studies, University of Groningen, the Netherlands and Richard Kirkham, Senior Lecturer in Public Law, University of Sheffield, UK

We’re pleased to say that our chapter on gender-neutral terminology has been included in a new international collection on research on the ombud institution. The handbook runs to a chunky nearly 550 pages and makes three claims about current research on ombuds:

  • there has been a lack of sustained and interconnected academic attention to ombuds research – not in terms of overall numbers of publications but in the lack of intellectual coherence. As a discipline, ombuds research is ill-defined and uncoordinated and is top heavy with prescriptive and descriptive research
  • there has not been enough testing through empirical research of the practical impact of the ombud institution, and more is needed that evaluates and scrutinises the claims made in favour of the ombud model
  • the ombud is not a static institution, and research has an important tole to play in encouraging constant redesign

The collection is organised into four parts.

  1. Part I, Fundamentals of the Ombudsman, gives an overview of the history of development  and classification of the ombud and ideas for its future
  2. Part II, The Evolution of the Ombudsman, looks at several ombud models across the world and interrogates their evolution and practice
  3. Part III, Evaluation of the Ombudsman, explores the theoretical literature and empirical research on ombuds
  4. Part IV, Ombudsman Office and Profession, asks questions about how well the ombudsman sector is functioning, discussing issues of standards, professionalisation and branding

Our chapter on terminology appears in Part IV and develops our thinking (from blog posts here and here) about how the name of the institution and the office-holder links with branding and a kind of identity crisis gripping the public-sector ombuds in the UK. It is interesting to note how the various contributors, and the handbook overall, deal with the issue of gender-neutral terminology throughout. The editors explain the approach they have taken in the Research Handbook:

One area of debate is alluded to within the book specifically by the Bondy and Doyle chapter and implicitly throughout, namely the question of ‘title’. The bulk of the book, and indeed the title, retains the terminology ‘ombudsman’, albeit for many of the authors with some reservation. Around the world associations of practitioners regularly refer to themselves as ‘ombudsman associations’, and the modern heritage of the institution is most widely attached to its Swedish variant, justitieombudsman. Until recently, most writing on the topic, referred to the institution as the ‘ombudsman’ and most schemes, albeit by no means all, adopt a variant of the title ‘ombudsman’. But in the English language the term, and even more so its plural ‘ombudsmen’, has an unfortunate, and unhelpful, gender-specific connotation. Our response in this collection has been to dedicate a chapter of this collection to exploring this issue in some detail and to generate further debate (Bondy and Doyle, Chapter 26). Each author, however, has been left free to deploy whichever terminology they feel most comfortable with.’

The introductory chapter is available online here.

More information is available from the publisher’s website:

The public sector ombudsman has become one of the most important administrative justice institutions in many countries around the world. This international and interdisciplinary Research Handbook brings together leading scholars and practitioners to discuss the state-of-the-art research on this increasingly prominent institution.

Traditionally, research on the ombudsman has been conducted from a purely prescriptive or (legal) descriptive perspective, mainly focusing on the ombudsman ‘in the books’. By contrast, this book illustrates how empirical research may contribute to a better understanding of the ombudsman ‘in action’. It uses new empirical studies and competing theoretical explanations to critically examine important aspects of the ombudsman’s work. The Research Handbook is organized in to four parts: fundamentals of the ombudsman; the evolution of the ombudsman; evaluation of the ombudsman; and the ombudsman office and profession. Featuring case studies from Europe, Canada, Asia, Africa, Latin America and Australia, chapters provide a comprehensive global perspective on the issues at hand.

This unique Research Handbook will be of great value to researchers in the fields of public law, socio-legal studies and alternative dispute resolution who have an interest in the ombudsman. It will also be a valuable resource for policymakers and practitioners, particularly those working within ombudsman offices.


Ombuds gender pay gap – an update

It’s a good time to reiterate that gender pay equality isn’t about who gets the bigger ice cream (important though that is)

It seems that ice cream season is coming around again, so let’s check the latest figures on the gender pay gap and see how the ombuds are doing in terms of levelling out the discrepancies in scoop size in their employees’ ice cream cone payslips.

Last year ombudsresearch looked at how ombuds are doing on the gender pay gap, following the implementation of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. Under that Act, all private-sector and most public-sector employers with 250 or more employees are required to publish data on the differences in average hourly pay for men and women in their organisation – the gender pay gap.

As we said in that post last year, the gender pay gap identifies potential structural inequality, not inequality or discrimination at an individual level. Reporting on the gender pay gap reveals patterns and trends about the proportion of women in senior positions, which in turn gives insights into potential barriers for women in the workplace, including the effects of prejudice and unconscious gender bias and of caring responsibilities (for children, elderly parents, etc) still primarily being taken on by women. Identifying a gap in pay can help organisations see that there’s a problem that needs addressing.

Given that ombuds have a key role in ensuring that organisations and public bodies act according to principles of equality, it is revealing to see how they themselves rank in terms of gender pay equality.

The latest figures have been analysed and published by the BBC in a handy online checker. As with last year’s figures, the returns cover only companies of more than 250 employees, which in the UK ombud world includes the Financial Ombudsman Service, the Parliamentary and Health Service Ombudsman and Ombudsman Services. All three are below the latest average of an 8.35% pay gap in favour of men, but the differences between them are interesting.

  • Top marks go to the Parliamentary and Health Service Ombudsman, which has not only reduced its median pay gap but has seen a swing in favour of women – from 9.8% in favour of men last year, to 0.2% in favour of women this year. That’s a major swing. Although it means only that women are paid £10.02 for every £10 paid to men, not a major difference, it puts the PHSO in among the 14% of all reporting organisations who have a pay gap in favour of women.
  • Ombudsman Services has made some strides, reducing their pay gap slightly from 4.3% in favour of men last year to 3% in favour of men this year.
  • The Financial Ombudsman Service, sadly, has increased its pay gap, from 6% in favour of men last year, to 7.2% in favour of men this year. This means that for every £10 paid to men, women are paid just £9.28. That puts FOS, along with the OS, in among the 74% of reporting organisations that pay their male employees more than their female ones.

A gender pay gap is not the same as equal pay, and having a gender pay gap is not evidence of intentional discrimination. The complex causes of a gender pay gap are discussed in our previous post on last year’s figures. We noted that although the figures for ombuds were at or below the national average, the problem needs to be recognised and addressed across the organisations. Training, such as training in unconscious bias, can help address the pernicious prejudices that we all have and that can manifest themselves in recruitment and promotion decisions. Organisationally, it is important to identify the factors leading to the gap and to review approaches to recruitment, retention, promotion, job grading, and coaching opportunities.

Most importantly, as we stated last year, a shared commitment among ombuds to eliminating the gender pay gap would be a great start.


Book review: OMBUDSMEN AND ADR: A Comparative Study of Informal Justice in Europe by Naomi Creutzfeldt

FullSizeRenderBy Carolyn Hirst

I am delighted to have been asked to review this book by Naomi Creutzfeldt, who is an academic and researcher whose work I greatly value and respect. For someone who works as a pracademic, and so benefits from understanding both the practice and theory of ombuds work, this book is a welcome addition to the literature. For me, it is now part of a triumvirate of essential ombuds reading, along with my prevailing ‘go to’ sources of Conducting Administrative, Oversight & Ombudsman Investigations by Gareth Jones and The Ombudsman Enterprise and Administrative Justice by Buck, Kirkham and Thompson.

This book has a Foreword from Carrie Menkel-Meadow – true endorsement indeed – who acknowledges that it is an important book and says that “The findings of this superb research project have enormous implications for how we are currently reimagining how dispute resolution and legal redress may be achieved.”

And it is the case that this book packs a vast amount of information, opinion and comment into its 192 pages. There is an introductory Chapter on Ombudsmen and Informal Justice, with the substance of the book being divided into three sections: Part 1 Setting the Scene, Part II Empirical Discoveries and Part III The Future of Informal Justice Systems. There is also an excellent and very useful Bibliography.

I did struggle a bit with the book’s premise that ombuds and ADR are one and the same. Yes, ombuds are an alternative to the courts. But I think that public-sector ombuds, with their focus on administrative justice and use of inquisitorial investigation to reach decisions which often have a public interest, are a distinct form of dispute resolution. I am more accepting of the ADR premise for ombuds whose aim is to resolve complaints to the satisfaction of the parties – although I acknowledge, as is said a few times in the book, that the public/private ombuds divide is increasingly blurry.

And a minor quibble is that the book has a narrower focus than the title suggests. However, at the outset Naomi Creutzfeldt does explain that her book sets out to answer two main questions: what explains users’ perceptions of fairness and trust in ombudsman institutions; and how cultural frameworks influence citizens’ use of ombudsmen. So, in essence, this book explores how ordinary people experience informal justice.

‘In essence, this book explores how ordinary people experience informal justice’

There is a fascinating research ‘puzzle’ described on page 55 relating to the annual reports of ombuds stating clearly that the outcome a person receives from their case determines their overall experience with the ADR provider. The puzzle here is that this appears to contradict the well-regarded and accepted findings of Tyler and others relating to procedural justice. Creutzfeldt goes on to explore this puzzle by combining an analysis of the rapidly developing literature on procedural justice and legal consciousness with the empirical findings from her study of Ombudsmen in the UK and Germany. This study is engrossing. It looks at national patterns and cross-national comparisons of private ombuds in the UK and Germany, and at the public/private divide in the UK by looking at a sample of ombuds from each sector.

Findings include that German and UK complainants have different complaint motivations – with the former being more focused on getting back their money/what was lawfully theirs, and the latter being more concerned about changing the business process and stopping the same problem from happening to others. And that German respondents to the survey were more likely to accept a decision if the outcome was partially or not in their favour.

‘German and UK complainants have different complaint motivations – with the former being more focused on getting back their money/what was lawfully theirs, and the latter being more concerned about changing the business process and stopping the same problem from happening to others.’

When considering private and public ombuds in the UK, the study finds that those who have used a private-sector ombuds appear to trust it more, are more convinced that the ombuds is acting lawfully, have more confidence in the ombuds and feel a moral obligation to follow the decision. Creutzfeldt relates these findings to the different attitudes to law and ADR in Germany and the UK, with UK ombuds providing a less formal and less legalistic process than their German counterparts. She writes well and convincingly about legal socialisation, but I question to what extent people actually choose their preferred way of dispute resolution. Often, in the UK at least, people have no real choice as complaints processes – at least in the public sector – lead inexorably to an ombuds.

In the final Chapter (9 Conclusion: Paths for Theory and Research) Creutzfeldt describes how throughout the book she has developed an argument that “our consciousness around ‘alternatives’ to formal legality is rooted in our national legal socialisation and lived (and constantly redefined) through our legal consciousness”. She also suggests that our expectations about ADR are guided by our pre-existing attitudes towards the formal system. It would be illuminating to explore these expectations both before and after the use of an ADR process, to see whether they are altered or reinforced. The book ends with reflections on the future development of ADR in Europe around three related areas: Ombudsmen and ADR Design, vulnerable consumers and the challenges of the digital.

I think this book will be of interest to researchers, students and practitioners who work for or have an interest in ombuds. I found Chapter 2, with its concise and informative summary of Europe’s Justice Systems, to be of particular value, although as an adopted Scot I would have liked to have seen a bit more about our own system of justice. I also welcomed the clarity and explanation around what ombuds are and do, and in Chapter 6 there is a useful identification and description of the normative roles that people expect of ombuds (these being the roles of Interpreter, Advocate, Ally and Instrument).

If you would like to read a different review of this book, then my esteemed colleague Nick O’Brien has one published on the UKAJI website. We are thinking about starting an Administrative Justice Book Club.

And a remaining puzzle for me relates to the book cover image – what appears to be an old, battered and apparently empty suitcase. What does this signify? Answers on a postcard.

Naomi Creutzfeldt, Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe (Palgrave Macmillan, 2018).

About the author:

Carolyn Hirst is an Independent Dispute Resolver and Housing Mediation Project Worker, University of Strathclyde.


Gender pay gap – how do ombuds services fare?

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Gender pay equality isn’t about who gets the bigger ice cream (important though that is)

By Margaret Doyle

Here in Britain, it’s hard to ignore the recent hubbub about gender pay equality. The other day, 4 April, was the big reveal. All private-sector and most public-sector employers with 250 or more employees are now required, under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, to publish data on the differences in average hourly pay for men and women in their organisation – the gender pay gap. The new regulations require organisations to report annually (and initially by 4 April 2018), on:

  • the difference between the average hourly rate of pay paid to male and female employees
  • the difference between the average bonus paid to male and female employees;
  • the proportions of male and of female employees who receive bonuses; and
  • the relative proportions of male and female employees in each quartile pay band of the workforce

The differences in hourly rate must be reported as both mean average (the result of adding all the rates and dividing between the number of rates) and median average (the mid-range number of all the rates). Mean averages give a useful overall average but can be skewed by bonuses applied to only some employees. Median averages give a ‘typical’ rate, what a middle-earning employee earns; they don’t tell you as much about the overall picture but are also less likely to be distorted by outliers.

The resulting data (available on https://gender-pay-gap.service.gov.uk/public/assets/pdf/gender-pay-gap-explained.pdf) have been pored over, analysed, celebrated and dismissed in the news over the past few days. Some organisations have had shamefully poor report cards; others surprisingly good ones. The reasons for gender pay disparity are many and complex, and the gender pay gap reporting requirement is a fairly crude measure of equality, but it is one that can be measured, and in this sense the initial reports serve as a valuable benchmark against which to gauge progress. How organisations respond to the results is the true test of their integrity in relation to gender pay equality.

Is this about equal pay?

The gender pay gap is not the same as equal pay, which is paying men and women the same for the same or similar work. Failing to comply with the equal pay legislation is illegal (and has been since the Equal Pay Act of 1970, although it is now covered by the Equality Act 2010). However, having a gender pay gap is not illegal (although failing to comply with the 2017 Regulations is – see below).

The gender pay gap is the difference in average hourly wage of all men and women across the organisation. The pay gap generally reflects men being paid more than women, on average. In some organisations, the pay gap is in favour of women; ie the average hourly wage is higher for women than for men. This is true for 13% of organisations reporting. A further 7% reported no pay gap at all. The vast majority reported a pay gap in favour of men.

Failure to comply with an obligation imposed by these Regulations constitutes an ‘unlawful act’ within the meaning of section 34 of the Equality Act 2006 (c. 3), which empowers the Equality and Human Rights Commission (EHRC) to take enforcement action. The EHRC has been in the news making it clear that it will be rigorous in investigating non-compliance with the Regulations and, where necessary, taking enforcement action.

What does it tell us?

The median gender pay gap in Britain in 18.4%, according to the Office for National Statistics. However, that figure covers all organisations, not only those with 250 or more enployees. The median gender pay gap reported to the government ‘gender pay gap portal’ is 9.7%, according to the BBC (see http://www.bbc.co.uk/news/business-43651780). Almost eight out of ten of the more than 10,000 organisations reporting on the portal pay men more than women.

The gender pay gap identifies potential structural inequality, not inequality or discrimination at an individual level. Although there is some criticism of the crude nature of the data being reported, it is generally accepted that reporting on the gender pay gap reveals patterns and trends about the proportion of women in senior positions, which in turn gives insights into potential barriers for women in the workplace, including the effects of prejudice and unconscious gender bias and of caring responsibilities (for children, elderly parents, etc) still primarily being taken on by women. Identifying a gap in pay can help organisations see that there’s a problem that needs addressing.

A female employee earns 33p for every £1 paid to a male employee of Ryanair.

A female employee of the Financial Ombudsman Service earns 93p to every £1 paid to a male employee.

These problems will be specific to the employer or sector. For example, many airlines are reporting a high gender pay gap because pilots, who are paid much more than cabin crew, are predominantly male. In education, one factor is that women with family responsibilities are drawn to a sector that offers part-time and term-time work, which for administrative staff and teaching assistants usually means lower hourly pay. These are not excuses for tolerating a pay gap, however. Rather than tolerating a pay gap, organisations need to consider their recruitment and promotion strategies.

What causes a gender pay gap?

Having a gender pay gap is not evidence of intentional discrimination but does reflect entrenched patterns and as such it invites honest reflection on the part of organisations. A number of complex factors influence an organisation’s gender pay gap (as noted by the EHRC), including but not limited to:

  • Men at the top: The highest paid sectors are male-dominated; women often end up in employment sectors that offer narrower scope for financial reward.
  • Undervaluing some work over others: Some sectors or jobs that are primarily female dominated are not valued and thus not as well paid as male-dominated sectors and jobs.
  • Not sharing caring: In the UK caring for family and children is still predominantly seen as ‘women’s work’ and mostly carried out by women. The gender pay gap is affected by more women being in part-time work and taking time out in order to accommodate caring responsibilities.
  • Stereotyping and unconscious bias: Recruitment and promotion are key to addressing the imbalance if women in senior positions, where pay is highest. Efforts need to be made to combat bias, prejudices and assumptions. Assumptions may also be made about women not asking for or accepting promotions because of their caring responsibilities or not negotiating higher pay on appointment. Many employees assume pay parity and are not aware of gender discrepancies and hence do not push for change.

More details on the factors that contribute to a gender pay gap are given in the EHRC’s research report, The Gender Pay Gap, published in August 2017.

How do ombuds fare?

Four ombuds schemes have reported: Legal Ombudsman (LeO), Parliamentary and Health Service Ombudsman (PHSO), Financial Ombudsman Service (FOS) and Ombudsman Services (OS).

SCHEME

MEAN

MEDIAN

Financial Ombudsman Service (FOS) Women’s mean hourly rate is 7.2% lower than men’s Women’s median hourly rate is 6% lower than men’s
Legal Ombudsman (LeO) Women’s mean hourly rate is 10% lower than men’s Women’s median hourly rate is 0% lower than men’s
Ombudsman Services Women’s mean hourly rate is 13% lower than men’s Women’s median hourly rate is 4.3% lower than men’s
Parliamentary and Health Service Ombudsman (PHSO) Women’s mean hourly rate is 9.9% lower than men’s Women’s median hourly rate is 9.8% lower than men’s

Staff are divided into four groups (quartiles) according to level of pay: top quartile (highest pay), upper middle, lower middle and lower quartile (lowest paid). In all four ombud services, women are in the majority in the top two quartiles. In PHSO, LeO, and Ombudsman Services women are in the majority in all four quartiles.

Three of the services award bonuses: In FOS, roughly equal percentages, 96% of both men and women, received bonuses, although women’s mean average bonus was 6.5% below men’s. In PHSO, 25% of women and 26% of men received bonuses, and women’s mean average bonus was 6.1% higher than men’s. In Ombudsman Services, 18% of women and 14% of men received a bonus, and women’s mean average bonus was 0.9% higher than men’s. LeO did not award bonuses.

Conclusion

Although it’s difficult to reach any robust conclusions from the data, it appears that ombuds’ report cards generally look better than average in terms of pay discrepancy. All except the PHSO had a median pay gap lower than the average reported figure of 9.7%, and the Legal Ombudsman has no median pay gap. Representation of women at the higher-paid levels in all these ombud services is promising. Nevertheless, it is disappointing that all have a gender pay gap, at least in terms of mean average, suggesting work to do to achieve gender equality. It will be interesting to see how they respond.

The problem – and it should be recognised as a problem, even if the averages among ombuds are at or below the national average – needs to be addressed organisationally and individually and requires leadership. At an individual level, training in unconscious bias can help address the pernicious prejudices that we all have and that can manifest themselves in recruitment and promotion decisions. Organisationally, it is important to identify the factors leading to the gap and to review approaches to recruitment, retention, promotion, job grading, and coaching opportunities.

A shared commitment among ombuds to eliminating the gender pay gap would be a great start.

About the author:

Margaret Doyle is a mediator and researcher and manages the ombudsresearch.org.uk website, which was set up as part of a mapping project on the use of informal resolution by ombuds in the UK and Ireland. She is also Senior Research Fellow with the UK Administrative Justice Institute at the University of Essex and an independent member of the Validation Committee of the Ombudsman Association.

 


What do we know and what do we need to know? A review of research on public-sector ombuds — UKAJI

By Dr Nick O’Brien In December 2016, the Cabinet Office published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman to create a new organisation with strengthened governance and accountability for complaints about public services in England. This review explores what research has been […]

via What do we know and what do we need to know? A review of research on public-sector ombuds — UKAJI

The full research review is available to download at the link above and for viewing below.

Nick O’Brien is Honorary Research Fellow, Liverpool University, and the co-author, with Mary Seneviratne, of Ombudsmen at the Crossroads (Palgrave McMillan, 2017).

BACKGROUND

This research review, by Dr Nick O’Brien, was commissioned by the UK Administrative Justice Institute and published in January 2018 to inform debate about reform of public-sector ombuds in the UK. Below is a brief overview of the context, including developments in relation to draft legislation.

Context

Consolidation of the public service ombudsman landscape in England has been a long time in the making, with the Collcutt Report calling for reform in 2000. However, on 5 December 2016, the Cabinet Office finally published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman (PHSO) and the Local Government and Social Care Ombudsman (LGSCO) to create a new organisation with strengthened governance and accountability for complaints about public services in England and the UK reserved to Westminster.

The Bill has had a long gestation. In 2011 the Law Commission issued a report making a number of recommendations for reform in the landscape of the public services ombudsman. In 2014 the Public Administration Select Committee published their report Time for a People’s Ombudsman. Robert Gordon QC subsequently carried out a review, followed by a public consultation in spring of 2015, the government’s response one year ago, and then the draft Bill in December 2016. The Bill did not appear in the May 2017 Queen’s Speech, however, suggesting that there will be a delay in implementing any reforms to the landscape.

In the meantime ombudsman reform has been taken forward by the devolved administrations, with the new powers and approaches taken by the public services ombudsman in Scotland, Wales and Northern Ireland, providing evidence on best practice in the 21st century.

The pause in taking forward the draft Bill provides an opportunity for researchers, legal practitioners, policy makers, parliamentarians, ombudsman, and others to exchange views on the strengths and weaknesses of the current proposals in the Bill, what aspects of change are most pressing and how change might be achieved without legislation.

Further information and background reading

  • The House of Commons Library issued a research briefing paper on the draft PSO Bill in January 2017. This sets out the main provisions proposed in the Bill and notes shortcomings identified by individuals and organisations.
  • During January and February 2017, UKAJI published a series of blog posts on the draft Bill, from a range of contributors and perspectives. The initial post, by Richard Kirkham and Brian Thompson, asked whether the changes in the draft legislation constitute significant reform. In the second post of the series, Gavin McBurnie compared the recommendations for reform made by the UK Parliament and the PHSO with the proposals in the draft Bill. In the third post of the series, Della Reynolds of phsothefacts explored the draft Bill from a user’s perspective and expressed disappointment at the missed opportunity to bring in real and substantive change for users. In the fourth and final post in the series, Nick O’Brien explored whether the draft Bill’s focus on a consumerist model suggests that, in England, the ‘ombudsman enterprise’ has run out of steam.
  • On 6 March 2017, the Communities and Local Government Select Committee held a one-off evidence session on the draft PSO Bill with Mick King, Local Government Ombudsman, and Denise Fowler, former Housing Ombudsman.
  • In July 2017, the PHSO and LGO issued a joint response to the draft Bill. In this they highlighted areas where they believe the reforms could go further and the new Public Services Ombudsman’s role could be strengthened.
  • In October 2017, UKAJI and the University of Glasgow published research on the Complaints Standards Authority role of the Scottish Public Services Ombudsman, which involves designing model complaint handling procedures (model CHPs), monitoring the operation of those procedures (including setting data reporting requirements), and supporting the development of good practice in complaint handling.
  • In January 2018, UKAJI published the review undertaken by Nick O’Brien on what research has been carried out on public sector ombudsman in the UK to identify what we know and don’t know.

 

 


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

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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.