Research Handbook on the Ombudsman
We’re pleased to say that our chapter on gender-neutral terminology has been included in a new international collection on research on the ombud institution. The handbook runs to a chunky nearly 550 pages and makes three claims about current research on ombuds:
- there has been a lack of sustained and interconnected academic attention to ombuds research – not in terms of overall numbers of publications but in the lack of intellectual coherence. As a discipline, ombuds research is ill-defined and uncoordinated and is top heavy with prescriptive and descriptive research
- there has not been enough testing through empirical research of the practical impact of the ombud institution, and more is needed that evaluates and scrutinises the claims made in favour of the ombud model
- the ombud is not a static institution, and research has an important tole to play in encouraging constant redesign
The collection is organised into four parts.
- Part I, Fundamentals of the Ombudsman, gives an overview of the history of development and classification of the ombud and ideas for its future
- Part II, The Evolution of the Ombudsman, looks at several ombud models across the world and interrogates their evolution and practice
- Part III, Evaluation of the Ombudsman, explores the theoretical literature and empirical research on ombuds
- Part IV, Ombudsman Office and Profession, asks questions about how well the ombudsman sector is functioning, discussing issues of standards, professionalisation and branding
Our chapter on terminology appears in Part IV and develops our thinking (from blog posts here and here) about how the name of the institution and the office-holder links with branding and a kind of identity crisis gripping the public-sector ombuds in the UK. It is interesting to note how the various contributors, and the handbook overall, deal with the issue of gender-neutral terminology throughout. The editors explain the approach they have taken in the Research Handbook:
‘One area of debate is alluded to within the book specifically by the Bondy and Doyle chapter and implicitly throughout, namely the question of ‘title’. The bulk of the book, and indeed the title, retains the terminology ‘ombudsman’, albeit for many of the authors with some reservation. Around the world associations of practitioners regularly refer to themselves as ‘ombudsman associations’, and the modern heritage of the institution is most widely attached to its Swedish variant, justitieombudsman. Until recently, most writing on the topic, referred to the institution as the ‘ombudsman’ and most schemes, albeit by no means all, adopt a variant of the title ‘ombudsman’. But in the English language the term, and even more so its plural ‘ombudsmen’, has an unfortunate, and unhelpful, gender-specific connotation. Our response in this collection has been to dedicate a chapter of this collection to exploring this issue in some detail and to generate further debate (Bondy and Doyle, Chapter 26). Each author, however, has been left free to deploy whichever terminology they feel most comfortable with.’
The introductory chapter is available online here.
More information is available from the publisher’s website:
‘The public sector ombudsman has become one of the most important administrative justice institutions in many countries around the world. This international and interdisciplinary Research Handbook brings together leading scholars and practitioners to discuss the state-of-the-art research on this increasingly prominent institution.
Traditionally, research on the ombudsman has been conducted from a purely prescriptive or (legal) descriptive perspective, mainly focusing on the ombudsman ‘in the books’. By contrast, this book illustrates how empirical research may contribute to a better understanding of the ombudsman ‘in action’. It uses new empirical studies and competing theoretical explanations to critically examine important aspects of the ombudsman’s work. The Research Handbook is organized in to four parts: fundamentals of the ombudsman; the evolution of the ombudsman; evaluation of the ombudsman; and the ombudsman office and profession. Featuring case studies from Europe, Canada, Asia, Africa, Latin America and Australia, chapters provide a comprehensive global perspective on the issues at hand.
This unique Research Handbook will be of great value to researchers in the fields of public law, socio-legal studies and alternative dispute resolution who have an interest in the ombudsman. It will also be a valuable resource for policymakers and practitioners, particularly those working within ombudsman offices.‘
“’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.”
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.