Here we report on new research on the use of informal resolution in handling complaints about Freedom of Information. The research is reported in ‘Alternative Systems of Dispute Resolution and the Right to Freedom of Information’, Kevin Dunion and Hugo Rojas TRANSPARENCIA & SOCIEDAD, No. 3, 2015, pp. 69-91.
Arising out of research jointly conducted by Kevin Dunion, Honorary Professor at Dundee Law School, and Hugo Rojas, Professor of Sociology of Law at the Universidad Alberto Hurtado, Chile, this article explains the negotiation and facilitation models applied by the Information Commissioners in Scotland, England, and Ireland to informally resolve, at an early stage, Freedom of Information complaints or appeals.
The authors state:
‘A legal system should do more than just recognise the right to freedom of information. In order for the relevant laws to be effective, it is imperative that any appeals against public agencies that do not supply the information requested by the applicant are resolved in a timely manner. If the public agency responsible for resolving freedom of information appeals promotes an overly formalist culture, focused mainly on public law, the review and case analysis of the disputes could take longer than is reasonable. In addition to impairing the effectiveness of the law, delays in resolving the cases lead to public dissatisfaction with freedom of information procedures, and a lower level of confidence in the authorities and civil servants responsible for them.’
Several countries have explored alternative mechanisms to the formal decision notice that the competent entity would normally be required to issue to deal with the claims and appeals on Freedom of Information. The authors analyse the informal resolution practices used by the Information Commissioners in England, Scotland, and Ireland and recommend the informal resolution methodology of these organisations could be replicated and refined in other countries.
The suitability of informal resolution for different types of complaints about Freedom of Information requests is a key consideration. The authors note that some complaints, especially those involving ‘service’ issues, may be more amenable to being informally resolved:
‘The use of an IR is readily understandable in circumstances in which the complaint relates to the service provided to a client or user, which is often a subjective question that an Ombudsman has to resolve. However, when it concerns freedom of information it might be considered that the IR has less of a practical application. If the right to freedom of information is acknowledged in law, normally it has a general application as regards the majority of public agencies, and ultimately, an appeal should be resolved through a public decision notice.’
The first part of the article describes the alternative dispute mechanisms used by these Information Commissioners. The second part discusses the merits and effectiveness using of informal resolution in Freedom of Information cases.
A critical review of those models is made to identify elements that may be useful for comparable Latin American public agencies which protect the right of Freedom of Information.
This study was done within the framework of the EUROsociAL II Programme of the European Union, which is a coordinating partner of the FIIAP Foundation and operational partner of the CEDDET Foundation.
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.
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 […]
“’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.
Earlier this month the Independent Police Complaints Commission (IPCC) published guidance on handling complaints about discrimination. The guidance follows a number of critical reports by the IPCC, which found significant failings in the way police forces carried out such investigations and engaged with complainants. It raises an interesting question: To what extent do ombuds and other complaint handlers hold bodies they investigate to account for discriminatory behavior and decision-making?
Fairness is a key concept of the ombuds approach: both fairness of decision-making and fairness of the processes used to handle citizen-consumer ocmplaints. Yet ombuds schemes and other complaint handling bodies in the UK have generally been reluctant to tread into the territory of naming discrimination and human rights breaches in findings on complaints. Part of the reluctance is the concern that any determination of a breach of equalities and human rights legislation must be made by a court. Breaches of human rights can, however, inform findings of maladministration, but as noted by Buck et al in The Ombudsman Enterprise, this innovative use of the law has its dangers, not least the risk of judicial review.
Promoting and protecting human rights is the primary function of National Human Rights Institutions (NHRIs), some of whom also have complaint handling roles. A current study of the role of NHRIs in dealing with human rights complaints is exploring how that complaint-handling role fits with the wider strategic function, and to what extent informal processes such as mediation are being used for these. (We were interested to note that the researchers are finding, as we did, that certain ADR and informal processes are ‘amorphous and difficult to isolate’ and that shared meanings and forms of, for example, mediation appear not to exist.) In some countries, the NHRI is also an ombud, but in the UK ombuds are separate organisations; the Council of Europe uses the term ‘national human rights structures’ to refer to those commissions, ombuds and police complaints mechanisms that have a human rights mandate but are not the accredited NHRI.
Last year the Equalities and Human Rights Commission published a guide to human rights in action. The section of the report on regulators, Inspectorates and ombuds (RIOs) includes several case studies, from the Parliamentary and Health Service Ombudsman, the Prisons and Probation Ombudsman and the IPCC, illustrating the use of the human rights framework in complaints handling and investigation.
Among those ombuds who have been proactive in identifying these issues in complaints is the Parliamentary and Health Service Ombudsman (PHSO), which has published a number of reports highlighting the human rights and discrimination elements of many complaints, particularly about vulnerable people in care or hospital (for example, this one on disability discrimination). The former Parliamentary and Health Service Ombudsman has stated that ‘the Ombudsman’s approach includes an overall concept of fairness, a fundamental commitment to the humanity of individuals and their right to equality in treatment and outcomes. Issues of discrimination and equalities underlie many of the complaints which come to the Ombudsman…’.
The PHSO makes clear in its general standards for determining complaints that it will expect a public body to comply with the equalities and human right legislation and will hold them to account:
‘It is not the role of the Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached: those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations….
If the public body is unable to demonstrate that it has had regard for, and taken account of, human rights, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.’
The Northern Ireland Ombudsman has been in the forefront if this work and has worked closely with the NI EHCR to develop a manual and training for complaint handlers to help them identify human rights issues in complaints they receive.
The UK Financial Ombudsman Service has published briefings on the need for businesses to comply with the Equality Act, such as this one. One of the issues is, as FOS points out, ‘consumers rarely articulate their complaint as “discrimination” – or invoke the Equality Act. More often than not, they’re simply frustrated at being unable to access the services they want or need to – and feel that the business’s processes are unnecessarily inflexible and impersonal.’
‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’ Nick O’Brien
An optimistic view is that ombudsmen in the UK will ‘increasingly contribute to wards the resolution of human rights issues in public administration, both in conducting investigatory work and in the office’s relations with other bodies’ (Buck et al, The Ombudsman Enterprise, 2011). Nick O’Brien, a human rights specialist and ombuds-watcher, has noted the increased consumerism plaguing ombuds schemes and argues that ombuds can mark themselves out among complaint-handling bodies by having a focus on discrimination and human rights issues: ‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’
How far do complaint handlers go in identifying discrimination or human rights as issues in complaints? How do ombuds and complaint handlers use the legal framework for discrimination and human rights in their casework and findings? Perhaps these questions need further research.