The user perspective is widely seen as an understudied aspect of administrative justice. A new report provides useful insights into one aspect of this: complainants’ expectations and experiences of ombud schemes, across public- and private-sector complaints. The report, by Dr Naomi Creutzfeldt, is the final report in her ESRC-funded project ‘Trusting the middle-man: Impact and […]
Models of redress design throughout Europe are diverse, but in the UK this diversity also reflects a fragmented and confusing landscape. This is one of the conclusions reached by participants at a workshop held in Edinburgh in June, a report of which has been published by the Foundation for Law, Justice and Society.
Designing Consumer Redress: Making Redress Accessible for Consumer-Citizens sets out the findings from the workshop, which was hosted by Queen Margaret University and the Centre for Socio-Legal Studies, Oxford. Among the recommendations is that the design of redress systems should be informed by principle, not left to the market or to technocratic innovations or incremental tinkering. A focus on users’ needs is crucial, as is a recognition that these needs are not homogeneous and not necessarily compatible with the priorities of redress providers, business and government. More empirical research is required to identify consumer-citizen needs in relation to redress.
The report summarises the presentations given, including a new model of dispute system design (DSD); research on consumer expectations; developments in Scotland; tribunal reform; information, advice and signposting for consumer-citizens; online dispute resolution; and the impact of the EU ADR Directive.
A key theme was making redress mechanisms accessible. There is a concern, however, if increased accessibility automatically equates to increased informality. Picking up on this concern, Carolyn Hirst, a member of the ombudsresearch team and a lecturer at Queen Margaret University, presented the findings from our research on informal resolution approaches by ombudsmen in the UK and Ireland. She explained that, since many ombuds have an administrative justice or civil justice function, an emphasis on informal resolution could deprive wider society of knowledge about complaint outcomes. It can also result in a lack of transparency and accountability and adversely affect precedent setting and learning from complaints. The last point is of particular concern given the recommendation from the report that ombuds schemes in the UK need to have a more significant impact as agents of change.
As one presenter concluded, “An administrative justice system approach as embodied in the ombudsman could enhance access to redress but this may be unlikely if the direction of travel is anti-state and austerity policies and ‘cheap and cheerful’ consumer dispute resolution.”
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.
Students at private universities are to get the right to take complaints to the sector’s independent adjudicator.
Times Higher Education reports that a clause applying to students in England and Wales was added this week to the Consumer Rights Bill currently making its way through Parliament. It will give students at private higher education institutions in receipt of Student Loans Company funding the right to take unresolved complaints to the Office of the Independent Adjudicator for Higher Education (OIA) – a right currently only given to students at publicly funded institutions and at the few private institutions that have voluntarily subscribed to the OIA. All students at private providers with at least one course designated for SLC funding will have access to the OIA. The change is intended to take effect on 1 September 2015.
Interestingly, this might also lead to more students having access to mediation for their complaints, if they…
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We had our first launch of the Informal Resolution report last night at the Nuffield Foundation’s offices in London. It was a great turn-out, including representatives from Belfast, Dublin and Cardiff and a mix of academic researchers, policy makers and ombudsfolk. It wasn’t surprising that such an audience generated a lively discussion about the problems of terminology, what’s the right balance between informality and consistency, and whether informal resolution poses risks to justice and to the ombudsman ‘brand’.
We set out our findings in terms of what informal processes are called by the ombuds and complaint handlers who use them, how frequently they are used, what criteria are used to assess suitability, whether informally resolved complaints are published, and what training case handlers have in informal resolution.
A high point was a comment by one participant whose scheme is one of the 12 we had identified as not using informal resolution. He stood up and said, “I lied to the researchers! Now that I know what we’re talking about, I realise I do that…I just never called it that.”
He hadn’t lied to us, of course – but his comment illustrates the difficulties we faced with this project in trying to clarify what it is that ombuds and complaint handlers actually do when they are resolving complaints without investigation. He also highlighted what he thinks are the risks of formalising approaches whose success to some extent relies on their informality.
It’s clear that we have only managed to scratch the surface and produce a snapshot ‘map’ of a moment in time in ombudsmanry. If our report provokes further discussion, consideration and research on the actual work of ombuds, it will have been a success.
Now looking forward to our launch next week in Edinburgh!