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.
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.
“’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.”
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.)
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.
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.
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.
We often hear about the ‘user journey’ and putting users at the heart of the justice system. For ombud schemes, ‘users’ are both complainants and the complained about, and generally feedback is sought from both groups. It is complainants, however, who tend to be the most vocal about their dissatisfaction with their experience of ombuds – using Twitter and other social media to voice their concerns. (Complained-about organisations, such as those subject to the Financial Ombudsman Service and Legal Ombudsman, are also vocal but tend to use other mechanisms and channels.)
But what do we really know about complainants’ views? Most ombuds carry out customer satisfaction surveys to gain insight into how people feel about the process used to handle their complaint and the outcome achieved. Most also have processes for reviewing complaints about the service provided, and a few have a mechanism to review ombud decision when these are challenged. Much of that work remains in the shadows and little is in the public domain, making it difficult to analyse how these numbers reflect the experience of complainants overall and to ascertain the extent to which service complaints and challenges to decisions actually make a difference.
What does the research tell us?
There is little research on the systemic impact of customer satisfaction and service complaints. In Benchmarking the Legal Ombudsman, the Legal Services Consumer Panel compared the Legal Ombudsman with several other UK ombuds schemes using a series of indicators grouped under four headings: caseload, timeliness, quality and cost. In its section on quality, the Panel highlighted that although some ombud schemes publish customer survey results in full, the practice of most is to include only a selection of statistics in annual reports. That benchmarking survey also suggested that a mechanism for externally reviewing service complaints can have a positive impact on improving the quality of investigations, but this was anecdotal.
A very different type of study of complainants’ experience is the 2008 research by Sharon Gilad on case handlers in the Financial Ombudsman Services. Gilad explored the issue of complainant expectations from the case-handler perspective – enquiring what complaint handlers do, what they try to achieve, and what strategies they employ. She suggests that by enhancing complainants’ trust in, and satisfaction with, unfavourable decisions, an expectations management approach may reinforce rather than reduce the inclination to complain in future.
…rather than merely “cooling out” complainants, this form of legitimization may actually enhance citizen-consumer voice… Rather than provoking them to pursue their dissatisfactions further in the public sphere, off-putting bureaucratic encounters resulted in applicants’ apathy and withdrawal.
Gilad’s analysis suggests that complaint handlers perceived communicating adverse decisions to complainants in a sensitive and persuasive manner as one of the key challenges of their role. When complaint handlers and complainants had differing assessments of complaints, the complaint handlers focused on managing expectations – specifically managing what they perceived as the public’s excessive or unrealistic expectations from financial firms and the ombudsman.
In November last year, the Patients Association published a report on complainants’ dissatisfaction with the Health Service Ombudsman. The ‘People’s’ Ombudsman: How it failed us sets out what the Association perceives as major failings in the way the ombud works. Key among its findings are criticisms of the ombud’s approach to evidence and the overall poor quality of its decision making. It argues that investigations are not diligent, robust or thorough, evidence is ignored, and mistakes are made, leading to re-investigations.
‘We offered to send them the set of medical records we had so that the Review team could compare them with their own. The Review Team said this was not necessary as they would ‘only be looking at the complaint handling’ and not at the original complaint.’
The report’s case-study evidence is powerful but is limited; it’s unclear how indicative the experiences reported on are of wider experiences or what the scale of the problem is.
How to approach research on complainants?
So how can we get a better sense of what complainants themselves think of ombuds? Getting access to individuals and to real cases is not an easy task for researchers – confidentiality, data protection, and ethical issues are all potential obstacles.
This week the UK Administrative Justice Institute published two blog posts about the issue, from different perspectives. One is from Della Reynolds, the co-ordinator of the PHSO Pressure Group, which works with complainants who are dissatisfied with the Health Service Ombudsman. The other is from an academic researcher at University of Oxford, Naomi Creutzfeldt, who has been exploring the issue of complainants’ trust in ombuds across the EU.
Reynolds lists a number of common obstacles faced by complainants:
- lack of communication
- manipulation of the facts
- factual error
- staff away on leave regularly or case passed between staff so you start again with new case worker
- blanket statements from staff which do not address key points raised
- acceptance of statements made by public body at face value
- refusal to release details of clinical advisor used – report written by clinical advisor – questions asked of clinical advisor or evidence supplied to clinical advisor
- no action taken if a service delivery complaint made
- any complaint made about the decision will be met with suggestion to go to judicial review
She describes the feelings of helplessness and righteous anger that complainants experience when faced with a failure to obtain a remedy from the ombuds. She proposes that a case study approach would provide much-needed insight – following a number of cases from initial complaint to outcome, using questionnaires (and possibly interviews) to get a full picture of the ‘journey’ of the complainant.
‘Like a badly aggrieved child you approach your parent ombudsman with tales of woe and the evidence to prove it, only to be told that it is just your ‘perception’ of injustice.’
Creutzfeldt’s EU-wide project involves surveying complainants who used ombud schemes and has published her findings in country-specific reports. She writes that ‘Despite the significance of ombudsmen to our constitutional and civil justice landscapes, very little is known about users’ perceptions of the fairness of the procedures and practices and the significance of these perceptions for levels of trust in particular ombudsman offices.’
Her comparative study (she has published a number of country-specific reports) included work on five ombud schemes in the UK: two of its public-sector ombudsmen (Local Government Ombudsman and Parliamentary and Health Services Ombudsman) and three private ombudsmen covering five sectors (Legal Ombudsman, Financial Ombudsman Service and Ombudsman Services covering property, energy and telecoms). She has gathered and analysed data on complainants’ views at first contact stage and about the process and outcome, as well as overall satisfaction.
Among her findings is that, in both private-sector and public-sector ombuds, complainants’ expectations are too high from the outset.
‘I believed that they had the “teeth” to resolve what seemed to be a straightforward case of an erroneous transfer which I simply couldn’t resolve however hard I tried.’
She also found a marked difference in levels of dissatisfaction for those using public-sector ombuds: overall 57% of those in public schemes felt the procedure was ‘somewhat unfair’ or ‘very unfair’, compared to a quarter of those in private schemes.
The increased tendency of complainants to use social media as a mechanism to voice their dissatisfaction means that we know more about those who had a poor experience than those who had a positive one. This is an issue to be considered in another research project, currently being conducted by Creutzfeldt with Chris Gill of Queen Margaret University, on dissatisfied complainants who have set up online protest groups to highlight concerns about ombudsman schemes and campaign for change.
We would be interested to hear of other research that has been or is being carried out on complainants’ experiences. Please get in touch using the Comments facility on this blog.
by Varda Bondy and Margaret Doyle
In October 2014, we launched (together with Carolyn Hirst) a mapping study titled ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland ’. We discussed at length whether to use the words ‘ombud/s’ or ‘ombudspersons’ rather than ‘ombudsman/men’, but decided on the latter to avoid the title itself becoming the centre of attention rather than the content of the report.
However, we felt compelled to touch on this question at the launch, which was attended by a number of ombudspeople as well as academics. After presenting one aspect of our findings, concerning the multiplicity of terms used by schemes to describe the same processes and identical terms to describe different ones, we added a closing remark on the problematic matter of terminology in the use of the term ‘ombudsman’ itself. This included an assertion that the word ‘man’ in Swedish means exactly the same as it does in English, and that the argument that the term is gender-neutral therefore does not wash.
That brief remark at the launch attracted responses on Twitter:
‘Term ombudsman dated and needs challenging. Sexist?’
‘I prefer “ombudsperson” to “ombuds” like in America’
‘I prefer ‘ombuds’ but am fine with other terms.’
A much-respected former ombudsperson wrote to us with a series of thoughtful suggestions designed to circumvent the problem. While recognising that the term ombudsman has been ‘de-masculinised elsewhere as in the South African FAIS Ombud and US university Ombuds, it is not making much headway in Europe or the [rest of the] Commonwealth, and… we have to live with the word as it is, not least because it is ‘now included in various statutes’ (emphasis ours).
He suggested the problem is in the plural; referring to a mixed group of men and women as ‘ombudsmen and ombudswomen’ is laborious, and the term ‘ombudsmen’ clearly denotes that the singular ‘man’ part of the word is masculine, as opposed to being an integral part of the combination of sound ‘ombudsman’. His proposed solutions included:
- Avoid using the generic plural ‘ombudsmen’. ‘Ombudsman should be confined to use either as a non gender specific noun, or as an adjective.’
- When referring to entities or services, use ‘ombudsman schemes, offices, or services’.
- When referring to those who lead ombudsman offices, use ‘heads of ombudsman offices’ or ‘ombudsman post-holders’.
- When referring to individuals who perform ombudsman decision-making functions, in formal speech or writing, use ‘ombudsman decision makers’.
- When referring to a mixed group of those heading or working in ombudsman schemes, in more informal or light-hearted speech or writing, use terms such as ‘ombuds-folk’, ‘ombuds-people’ ‘ombuds-workers’ or ‘the ombudsman community’.
We welcome any such engagement, especially where it recognises the problematic nature of the terminology, but we are perplexed as to why the ombuds community is so intent on engaging in both linguistic and conceptual acrobatics by insisting that ‘man’ does not mean ‘man’.
The NI Ombudsperson Bill
At the risk of generating groans of ‘oh not this again’, we feel compelled to take issue with the disappointing stance taken by the Ombudsman Association (OA) Executive Committee in their response to the recent consultation on the proposed Northern Ireland Public Services Ombudsperson (NIPSO) Bill, which, as the title suggests, refers to the office holder throughout as ‘ombudsperson’.
The terminology is not in fact part of the consultation at all, but the OA Executive Committee highlighted its objection to it in its consultation response of 28 May 2015:
“The Association shares concerns expressed by others that using the title ‘ombudsperson’ will cause confusion amongst the public and stakeholders at a time when the title ‘ombudsman’ is becoming more recognised and trusted. The Association would therefore urge the Assembly to amend the title of the proposed body to ‘the Northern Ireland Public Services Ombudsman’.”
The Bill itself makes clear that using the term ‘ombudsperson’ was a deliberate choice, not an oversight: ‘Name of the office
- The Committee preferred that the new office should be known as the Northern Ireland Public Services Ombudsman (NIPSO) as opposed to Public Services Ombudsman for Northern Ireland (PSONI).
- During the drafting of the Bill the Committee decided to replace Ombudsman with Ombudsperson as the latter is unambiguously gender neutral.’
We suggest that it would be one thing for the OA not to take a view one way or the other. But to include such a robust objection to the terminology in the proposed legislation appears to be a political stance, aimed at stifling discussion. Instead, the OA could have congratulated the Committee and the Northern Ireland Assembly on its forward thinking in using a truly gender-neutral term that is not yet widely accepted, and if necessary, promote a discussion on other suitable alternatives.
We queried this aspect of the response and expressed concern that the underlying principle of fairness (required for OA membership and cited in the response) does not appear to include equality and anti-discrimination. It may be that the Executive Committee members do not believe the terminology raises equalities issues. They are instead focusing on the need to avoid confusion and protect the ‘brand recognition’ of the term ‘ombudsman’.
‘…the ‘brand’ that the term ombudsman invokes is an important one. The Association’s criteria for ombudsman membership incorporates independence, fairness, effectiveness, openness and transparency, and accountability. Our members have cultivated the public’s awareness of these values to encourage the use of their services.’
Our question is therefore: is the ‘man’ of ‘ombuds-man’ essential to the brand?
First, let’s consider the etymology: Proponents of retaining the ‘man’ format often cite the Scandinavian origins of the term. The OA did just that in its response to the NI consultation: “The word ‘Ombudsman’ is Scandinavian and means ‘representative of the people’. The term is gender-neutral in origin and in common usage throughout these islands, including by other schemes with jurisdiction in Northern Ireland.”
The ‘ombudsman’ entry on Wikipedia explains: “An indigenous Swedish, Danish and Norwegian term, ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning “representative” (with the word umbud/ombud meaning proxy, attorney, that is someone who is authorized to act for someone else, a meaning it still has in the Scandinavian languages). … Modern variations of this term include “ombud,” “ombuds,” “ombudsperson,” or “ombudswoman,” and the conventional English plural is ombudsmen.”
If you enter ‘ombudsman’ or ‘ombudsperson’ into Google Translate and translate from English to Swedish, you get ‘ombuds’. Conversely, Google Translate converts ‘ombud’ in Norwegian to ‘ombudsman’ in English. This suggests that in Scandinavia, it is the ‘ombud’ part of the term that distinguishes an ‘ombudsman/woman/person’ from other offices such as adjudicator or commissioner.
We do not argue that we must emulate uses of this term in other countries at all costs, but as Scandinavia is regarded as the cradle of ombudsmanry (another controversial term) and is cited as an authority for ‘man’ not meaning ‘man’, we asked the experts. First, here are some Swedish examples of alternatives to the term ‘ombudsman’, revealed in a quick Google search:
- Sök närmaste ombud = find the nearest ombud
- Sveriges Socialdemokratiska Ungdomsförbund i Uppland söker ombudsman/kvinna = Swedens’ Social-democrat Youth Association seeks ombudsman/woman
- Vänsterpartiet-Norrbotten söker en ombudsman/kvinna 2006 = Vänsterpartiet (the Left Party) in Norrbotten seeks ombudsman/woman
What’s happening in Norway?
For a more in-depth look we explored what is happening in Norway. First, we Googled the Norwegian Wikipedia entry on ‘Ombudsmann’, which we translate to read: ‘Ombudsman (or ombud, which in fact is a label/description of a task one has a duty to undertake) is a person commissioned to protect interests and rights of individuals or groups.’
With that in mind, we wrote to the Norwegian Equality and Anti-discrimination Ombud (Likestillings- og diskrimineringsombudet; the ending ‘et’ in Norwegian stands for ‘the’), to ask about the ‘mann’ (‘man’ in Norwegian) part of the word which they had discarded from their title. In response we were told that theirs was the first scheme to adopt the term ‘ombud’ in place of ‘ombudsmann’ when established in 2006.
They sent us the White Paper for the law establishing the Gender Equality Ombud. The document uses the term ‘ombudet’ (the ombud) rather than ‘ombudsmann’ throughout the document, apparently without any need to engage in a terminology discussion or to justify the choice of title, despite being the first scheme to be so named formally.
This made a refreshing departure from what happened in 1979 when a committee was established to consider statutory amendments to the office of the Norwegian Parliamentary Ombudsman. The Select Committee considered the appropriateness of the title ‘Ombudsmann’ and discussed its pros and cons. It noted that the title does not say anything about actual function of the position holder, and importantly, that the term was not gender neutral. On the other hand, it was noted, the title was well incorporated in both Nordic and international usage.
The Parliamentary Ombudsman himself argued at the time that the Ombudsman office was an entirely personal arrangement, in that the Ombudsman must take a personal decision on all cases and cannot delegate decisions to others; the term ‘Ombud’, on the other hand, is more about the office than the person. In other contexts where the expression ‘Ombud’ is used, it is talking about institutions or positions where it is not essential to distinguish between office and person.
It is worth noting that these arguments do not nowadays apply in that most ombudspeople do not decide all the complaints that come before them and that the use of ‘ombudsmen’ by the OA on their website could be read variably as a title attached to the office holders or the scheme, as in:
‘Ombudsmen exist to deal with complaints from ordinary citizens and consumers about most public bodies and some services in the private sector.’
In the end, despite recognising that the term was not gender-neutral, the Select Committee considering amendments to the Office of the Norwegian Parliamentary Ombudsman rejected the minority view that the time has come to replace ‘sivilombudsmann’ with ‘sivilombud’, and concluded that the traditional term was to be retained on the basis that it was so well established that there is no basis for change.
This was 36 years ago.
Fast forward 16 years to 1995, when another discussion paper, evaluating the Children Ombud (established in 1981), offered a different insight into the modern understanding of the term ‘ombud’ vs ‘ombudsman’. Part 3.1 of the document explains that ‘the term ‘ombud’ is a positive concept, used in connection with resolution of social inequality…. In everyday use, ‘ombud’ refers to positions that carry particular activities of representing, protecting or promoting specific interests.’
After a brief reference to its history with the establishment of the first Swedish Ombudsman in 1809, it goes on to say that:
‘The term “ombudsmann” is one of the few Nordic words that entered the language internationally. In Norway, gender equality has gradually led to the use of the gender-neutral term “ombud“.’(emphasis ours)
‘In Norway, gender equality has gradually led to the use of the gender-neutral term “ombud”.’
The document uses the term ‘ombud’ throughout to denote the office, as in: ‘Ombudene kan ha mange ulike funksjoner’ i.e. ‘the ombuds can have many dissimilar functions’. Hence, the office of ‘Children Ombudsman’ is called in Norwegian ‘Barneombud’,i.e Children Ombud, and the institution is referred to as ‘barneombudsinstitusjonen’ – the children ombud institution.
We accept there is clearly no consensus even in Scandinavia with regard to replacing ‘ombudsman’ with ‘ombud’. So while the Children Ombud (Barneombud) became the model for the equivalent Swedish office established in 1993, the term ‘ombud was not adopted’, and it was instead named ‘Barnombudsmann’ – Children Ombudsman. However, as the above discussions and examples demonstrate, it is not viable to state that ‘ombudsman’ is gender neutral on the basis of its Scandinavian origin, meaning and current use.
Why does it matter?
Research by sociologists and linguistics experts indicates that language does affect behaviour and attitudes. Language, and particularly titles of office, that presume maleness as the norm (‘chairman’, ‘policeman’ etc) have an impact in the context of underlying gender bias in society and women’s lack of representation in public roles. The growing body of research validating the concern is set out in this piece by two academics at the University of Kent:
“For example, when people hear masculine generic language, they predominantly visualize pronoun referents as being male (e.g., Gygax, Gabriel, Sarrasin, Oakhill, & Garnham, 2008; Hamilton, 1988; Moulton, Robinson, & Elias, 1978; Ng, 1990; Stahlberg, Sczesny & Braun, 2001). Other research suggests that sexist language perpetuates male privilege (Kleinman, 2002), influences children’s gender schemas (Hyde, 1984), limits the perception of vocational choices for women (Briere & Lanktree, 1983), influences perceptions of status and competence (Merkel, Maass, & Frommelt, 2010), and even makes women feel ostracized (Stout & Dasgupta, 2011).”
“…research suggests that sexist language perpetuates male privilege, … influences children’s gender schemas, … limits the perception of vocational choices for women, … influences perceptions of status and competence, … and even makes women feel ostracized.”
Douglas Hofstadter, a professor of cognitive science in the US, wrote a stinging satire on the opposition to adopting gender-neutral language. In “A Person Paper on Purity in Language (1985)”, he used what he admitted was a shocking analogy to expose the absurdity of presenting ‘man’ suffixed words as gender-neutral. In the essay, Hofstadter replaces ‘man’ with ‘white’. Have a read and see what effect it has on your assumptions.
We don’t believe there’s a right or wrong answer to this. But we’d like to encourage people to discuss it rather dismiss it. There are plenty of respectable ombuds organisations around the world that recognise the equalities issues of the term and use alternatives that have, over time, become well established. That alone suggests it’s worthy of discussion.
Let’s look at two option: ‘ombud/s’ and ‘ombudsperson’:
In Scandinavia, South Africa and New Zealand, the term ‘ombud’ is singular. In Norway:
In South Africa:
In New Zealand:
In the US, the terms ‘ombud’ and ‘ombuds’ are used interchangeably:
*This office uses all four terms—ombud, ombuds, ombudsperson, and ombudsman
- Use of the term ‘ombuds’ goes back at least to 2006, when the well-known OmbudsBlog was set up:
‘Ombud’ is often used in the context of higher education, not just in North America, where it is the prevailing term, but in Europe as well. For example, the Studentombudet for Oslo and Akershus University College of Applied Sciences (HIOA) mentions her ‘ombuds’ work on Twitter, although she refers to herself as an ‘ombudsperson’ on her blog.
‘Ombudsperson’ is recognised by the online Free Dictionary: “A public official who acts as an impartial intermediary between the public and government or bureaucracy, or an employee of an organisation who mediates disputes between employees and management.”
- This term is used by the European Network of Ombudspersons for Children (ENOC)
- ‘Ombudspersons for children’ is the term used by the EU for the European Forum on the Rights of the Child
- It is also the term used by the UN Security Council
- It is used interchangeably with ‘ombudsman’ by the Forum of Canadian Ombudsman
Conclusion, and an invitation to join the conversation
The OA argues in its response to the Northern Ireland consultation that use of the term ‘ombudsman’ is important to protect the brand recognition of these services and schemes. And as discussed in Parliament in February, ‘ombudsman’ is on the list of protected titles (‘Sensitive words and Expressions Regulations’) maintained by the Department for Business:
‘While anyone is free to set up a business providing ADR, ‘ombudsman’ is a sensitive word whose use in a company or business name requires prior approval by the Secretary of State.’
But is it not the ‘ombuds’ part of the term that is meant to be protected? If the intention is that only ‘ombudsman’ should be legally protected (although we note that the Regulations say that ‘that the specified words and expressions are specified in all their plural, possessive and (where relevant) feminine forms’), then even if there were legal protection of the title here in the UK, there’d be no barrier to someone setting up as The Telecoms Ombudsperson, or The Ombud for Health Services, or National Consumer Ombuds Service. It seems disingenuous to take such a literal stance, and contrary to the intention of efforts to protect the meaning of the ombuds role.
Surely it’s time we had this conversation in the UK? Tell us what you think.
This piece was originally posted on the blog of the UK Administrative Justice Institute on 22 May 2015 and is republished here with permission.
There was a very good turnout for our workshops on research at the Ombudsman Association annual conference in Loughborough last week.
The opening plenary session of the conference suggested that research would be a recurring theme throughout the conference. Dr David Halpern of the Behavioural Insights Team discussed the way organisations can influence behaviour through small changes (the wording of letters, for example) to lead to better decision-making. He discussed evidence suggesting people want feedback, the ability to share experiences, and closure. They also want human contact. He urged ombuds to consider experimenting and running controlled trials of different methods and approaches to iterate and refine how complaints are handled.
Dr Naomi Creutzfeldt (Centre for Socio-Legal Studies at the University of Oxford) discussed her ESRC-funded comparative research on users’ trust of and perceptions of ombudsman, surveying complainants who have used 14 consumer ombudsman schemes across Europe. She is testing…
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We have seen this past week the publication of two significant markers in the move towards reform of the ombudsman landscape. Both highlight the difficulties faced by a ‘system’ of redress that has developed in an ad hoc way. Both take account of the increased consumerisation of redress, in public- and private-sector disputes. Both attempt, in their own way, to bring about greater harmonisation of the system and to improve access, consistency and accountability. They take very different approaches to such attempts, however: one, to set a relatively low baseline of standards which which redress providers must comply, and thus encourage a multitude of competing providers; the other, to merge existing redress providers into a single scheme, with enhanced powers and remit.
On 17 March, the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations were laid before Parliament. These regulations are the first step towards implementation of the EU ADR Directive, which requires member states to ensure that independent ADR is available for disputes over goods and services. They set out the requirements for ADR providers and the bodies (competent authorities) that will approve them. The Department for Business explains that that the regulations will ‘overlay an existing landscape of disparate provision of alternative dispute resolution’.
‘Disparate’ is perhaps a kind way to describe the landscape. In spite of calls for greater harmonisation, the motley range of ADR provision will remain, in some cases providers competing with each other for customers (businesses) and sharing only compliance with the minimum requirements which with providers must comply.
Although they are minimum requirements, there is something positive in the fact that information requirements will apply to all approved providers. Schedule 3 sets out the requirements that competent authorities must be satisfied that an ADR provider meets before they can be approved. The requirements for transparency (16 of them) are listed under section 5 and require that an ADR provider must state on its website a range of information about how it works, including its procedural rules and the principles the ADR provider applies, and the main considerations it takes into account when seeking to resolve a dispute. That’s helpful, although the level of detail of such information is left open.
Then today we have the long-awaited Cabinet Office consultation on the reform of public services ombudsmen in England. This sets out a number of high-level questions about the overall premise, leaving the detail to a later stage. The questions relate to the underlying principles of the proposed reforms; which services to include; what sector-specific expertise to retain, and what management structure; mechanisms and routes of access for complainants; and investigative powers. The deadline for responses to the consultation is 16 June 2015.
The consultation takes forward the proposals of the Gordon Review, which in its report completed last year but only published today, recommended creating a new Public Service Ombudsman (PSO), bringing together the existing jurisdictions of the Parliamentary and Health Service Ombudsman (PHSO), Local Government Ombudsman (LGO) and Housing Ombudsman (HO). Gordon proposed bringing into the remit of a single Public services ombudsman other public services that aren’t currently subject to an ombudsman’s oversight. Because of the complexity of the way public services are now contracted, paid for and provided, Gordon also recommended ‘following the public pound’ and including within the ombudsman’s jurisdiction arm’s length bodies and private-sector providers who either receive public funds or are contracted by government to deliver public services.
From the perspective of the research we carried out on informal resolution by ombudsmen, it is interesting to note that Gordon highlights as one of the improvements to come about with the integration of the public services ombudsmen is greater harmonisation of published information about complaints and outcomes. The Review report states, in para 140:
“In response to the Law Commission’s report, the public service ombudsmen in England accepted the need for greater harmonisation of practice around the way that details about complaints and ombudsmen conclusions are published and shared. The emphasis in the Law Commission’s report was rightly placed on how transparency around ombudsman decisions can be increased – and this was subsequently picked up by PASC in the context of how it might be possible to increase the public visibility of the ombudsman brand. Transparency in this area is also a key means by which the PSO can drive its own internal standards, building and demonstrating the quality of investigations and building a sense of autonomy and responsibility amongst staff within the organisation.”
Transparency and accountability are principles that all ombudsmen subscribe to. Indeed, the vast majority of schemes that we surveyed in our research on informal resolution 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.
We also found in our survey that transparency was a likely casualty of increased informality. Although formal decisions (or determinations or rulings) are often made public, complaints resolved informally are not. The majority of schemes we surveyed publish some information on informally resolved complaints – most commonly in the form of anonymised selected case summaries. Some, however, publish only statistics, and some publish nothing at all, including one scheme using informal resolution in 90% of its complaints.
If only decisions are published, and these become the minority method of closing complaints, there is less opportunity for ombudsmen to give feedback and to set standards for good complaints handling for the bodies in their jurisdiction. It also makes it difficult for complainants, and those complained about, to assess a proposed resolution against decided outcomes.
We will have to wait to see whether these two roads to reform are in fact heading in opposite directions.
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.
‘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 resolutionPosted: December 22, 2014
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.
by Carolyn Hirst
Last week the Legal Ombudsman for England and Wales published a report of research commissioned from Queen Margaret University (QMU). The QMU research team (Chris Gill, Carol Brennan, Jane Williams and Carolyn Hirst) had been asked to investigate what the Legal Ombudsman could learn from other ADR providers in relation to developing its own model of dispute resolution.
The research involved a case study design and fieldwork was conducted with ten organisations: four in the UK (HMCTS Small Claims Mediation Service, Furniture Ombudsman, UK European Consumer Centre and PhonePayplus), one in Ireland (Financial Services Ombudsman), two in New Zealand (Banking Ombudsman and the Law Society’s Lawyers Complaint Service’s Early Resolution Service), one in Australia (Financial Ombudsman Service), one in Canada (Ontario Ombudsman) and one in the USA (ebay/PayPal).
What the research highlighted was the wide range of dispute resolution practices in use. It also illustrated some of the key design choices that ADR providers needed to make in relation to a dispute resolution scheme. These design choices fell within four areas: the use of online dispute resolution; the early stages of dispute resolution processes; mediation approaches; and the later stages of dispute resolution and building influence.
The report concludes by offering a model for ADR design, which sets out some key issues to be considered. It suggests these could be used as a ‘design kit’ for the creation or review of ADR processes. This design model has ten spectra, such as the funding mechanism of the scheme, the use of technology and the preferred type of settlement, along which an ADR scheme could decide to position itself. The report concludes that the particular context into which an ADR scheme is to fit will be crucially important in informing such choices.
The author is a co-researcher on the study of The use of informal resolution approaches by ombudsmen in the UK and Ireland .