By Dr Nick O’Brien In December 2016, the Cabinet Office published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman to create a new organisation with strengthened governance and accountability for complaints about public services in England. This review explores what research has been […]
The full research review is available to download at the link above and for viewing below.
Nick O’Brien is Honorary Research Fellow, Liverpool University, and the co-author, with Mary Seneviratne, of Ombudsmen at the Crossroads (Palgrave McMillan, 2017).
This research review, by Dr Nick O’Brien, was commissioned by the UK Administrative Justice Institute and published in January 2018 to inform debate about reform of public-sector ombuds in the UK. Below is a brief overview of the context, including developments in relation to draft legislation.
Consolidation of the public service ombudsman landscape in England has been a long time in the making, with the Collcutt Report calling for reform in 2000. However, on 5 December 2016, the Cabinet Office finally published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman (PHSO) and the Local Government and Social Care Ombudsman (LGSCO) to create a new organisation with strengthened governance and accountability for complaints about public services in England and the UK reserved to Westminster.
The Bill has had a long gestation. In 2011 the Law Commission issued a report making a number of recommendations for reform in the landscape of the public services ombudsman. In 2014 the Public Administration Select Committee published their report Time for a People’s Ombudsman. Robert Gordon QC subsequently carried out a review, followed by a public consultation in spring of 2015, the government’s response one year ago, and then the draft Bill in December 2016. The Bill did not appear in the May 2017 Queen’s Speech, however, suggesting that there will be a delay in implementing any reforms to the landscape.
In the meantime ombudsman reform has been taken forward by the devolved administrations, with the new powers and approaches taken by the public services ombudsman in Scotland, Wales and Northern Ireland, providing evidence on best practice in the 21st century.
The pause in taking forward the draft Bill provides an opportunity for researchers, legal practitioners, policy makers, parliamentarians, ombudsman, and others to exchange views on the strengths and weaknesses of the current proposals in the Bill, what aspects of change are most pressing and how change might be achieved without legislation.
Further information and background reading
- The House of Commons Library issued a research briefing paper on the draft PSO Bill in January 2017. This sets out the main provisions proposed in the Bill and notes shortcomings identified by individuals and organisations.
- During January and February 2017, UKAJI published a series of blog posts on the draft Bill, from a range of contributors and perspectives. The initial post, by Richard Kirkham and Brian Thompson, asked whether the changes in the draft legislation constitute significant reform. In the second post of the series, Gavin McBurnie compared the recommendations for reform made by the UK Parliament and the PHSO with the proposals in the draft Bill. In the third post of the series, Della Reynolds of phsothefacts explored the draft Bill from a user’s perspective and expressed disappointment at the missed opportunity to bring in real and substantive change for users. In the fourth and final post in the series, Nick O’Brien explored whether the draft Bill’s focus on a consumerist model suggests that, in England, the ‘ombudsman enterprise’ has run out of steam.
- On 6 March 2017, the Communities and Local Government Select Committee held a one-off evidence session on the draft PSO Bill with Mick King, Local Government Ombudsman, and Denise Fowler, former Housing Ombudsman.
- In July 2017, the PHSO and LGO issued a joint response to the draft Bill. In this they highlighted areas where they believe the reforms could go further and the new Public Services Ombudsman’s role could be strengthened.
- In October 2017, UKAJI and the University of Glasgow published research on the Complaints Standards Authority role of the Scottish Public Services Ombudsman, which involves designing model complaint handling procedures (model CHPs), monitoring the operation of those procedures (including setting data reporting requirements), and supporting the development of good practice in complaint handling.
- In January 2018, UKAJI published the review undertaken by Nick O’Brien on what research has been carried out on public sector ombudsman in the UK to identify what we know and don’t know.
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 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.
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 .
We are grateful to the Nuffield Foundation for providing us with some supplementary funding in order to follow up on some of the issues that arose when we launched our report on The use of informal resolution approaches by ombudsmen in the UK and Ireland last month. One of the pieces of work we want to do is to look at approaches used by schemes operating in the same sectors but in different jurisdictions to see what similarities and differences there are in the way they handle the same types of complaints.
For example, three organisations in our mapping study deal with complaints about financial services: the Financial Ombudsman Service (UK) (FOS), the Financial Services Ombudsman Scheme (Isle of Man) (FSOS) and the Financial Services Ombudsman’s Bureau (Ireland) (FSOB). They are vastly different in size: the FOS handles half a million complaints each year, while the Isle of Man scheme handles fewer than 300, with FSOB at nearly 8,000. All three schemes use informal resolution, but the extent to which they do ranges from 94% of complaints (FOS) to 22% (FSOS) down to <1% (FSOB). Both FSOS and FSOB use a process they call ‘mediation’, but these appear to be quite different.
Only one, the FSOB in Ireland, uses what we might call ‘true’ mediation: a process where an independent third party helps the parties in dispute to try to reach an agreement and in which the parties, not the mediator, decide the outcome.
Mediation is offered to both parties in all cases accepted by the FSOB. The scheme describes its mediation as “a process where the parties to the complaint try to reach a solution through agreement with the assistance and support of a mediator rather than through an immediate investigation of the complaint and a decision from this Office on the complaint.” The mediator is one of three members of the FSOB staff who are trained and accredited in mediation. Mediations take place in person, with both parties attending, at the FSOB offices in Dublin. Parties are advised to set aside a full day to attend mediation in person, although in practice mediations are concluded within a few hours.
Mediation is voluntary for both parties, and the very small percentage of FSOB complaints going to mediation, even though it is the default offer of the scheme, suggests that buy-in by the parties is low.
We’d like to explore what these and other sector-specific schemes share, and how they differ.
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!