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STATES OF JERSEY
PUBLIC SERVICES OMBUDSMAN: ESTABLISHMENT OF OFFICE
Lodged au Greffe on 12th February 2018 by Senator P.F.C. Ozouf
STATES GREFFE
2018 P.32
PROPOSITION
THE STATES are asked to decide whether they are of opinion
- that the recommendations from the Clothier Report on the Machinery of Government in Jersey and the Jersey Law Commission that "An Ombudsman should be appointed to hear and determine complaints of maladministration" should be progressed as a matter of priority;
- to agree that the scope of a Jersey Public Services Ombudsman should include –
- the departments of the States of Jersey; and
- regulatory bodies appointed by the States of Jersey, except for the Jersey Financial Services Commission;
- to request the Chief Minister to commission research on the costs of introducing a Public Services Ombudsman scheme in Jersey, which should encompass the matters for research set out in Appendix 1to the accompanying Report;
- to request the Chief Minister to consult widely on the design of the Public Services Ombudsman scheme, including with the members of the Jersey Complaints Board, which was established by the Administrative Decisions (Review) (Jersey) Law 1982, in order that the best elements of the Complaints Panel scheme are retained within the new system;
- to request the Chief Minister to bring forward primary legislation to establish the office of a Public Services Ombudsman, to replace the States of Jersey Complaints Board, as soon as is practicable, and to agree that the primary Law will include provisions for the detail and scope of the Ombudsman arrangements to be set out in Regulations and, where appropriate, Order-making powers;
- to request the Chief Minister to establish, and appoint with the concurrence of the Jersey Appointments Commission, a minimum of 3 suitably qualified individuals to act as a Shadow Board to oversee and drive the tasks set out in this proposition and, as soon as is practicable, for this Board to assume the role of a Shadow Public Services Ombudsman;
- to request relevant Ministers to ensure that there is good co-ordination between the work of the newly-appointed Children's Commissioner and the Public Services Ombudsman;
- to request that the Ombudsman Board, as described in paragraph (f), should work in close co-operation with the Financial Services Ombudsman, with a view to assessing the desirability of creating a
single Ombudsman Service for Jersey, if there are tangible benefits for complainants, service providers and the 2 Ombudsman functions;
- to request the Chief Minister to set out a timetable for bringing such primary legislation and Regulations to the States for approval, and for appointing a Shadow Ombudsman Board and bringing an Ombudsman service into operation.
SENATOR P.F.C. OZOUF
REPORT
Previous recommendations
The 9th Chapter of the report of Sir Cecil Clothier published in January 2002 recommended that –
"An Ombudsman should be appointed to hear and determine complaints of maladministration by Departments",
The chapter is shown in Appendix 2 to this Report.
A report from the Jersey Law Commission entitled "Improving Administrative Redress in Jersey" was published in October 2017. The 6th Chapter of this report considers the need for a Jersey Public Services Ombudsman. The report makes 2 recommendations –
"6.1 The Government of Jersey should make an in principle' decision to
support next steps in the creation of a Jersey Public Services Ombudsman (JPSO).
6.2 The Government of Jersey should request the Jersey Law Commission to develop institutional design options for the JPSO.".
The relevant chapter is shown in Appendix 3 to this Report. Links to other relevant reports can be found in Appendix 4. Background
In 2004, the Privileges and Procedures Committee ("PPC") presented a report to the States Assembly after reviewing the States of Jersey Complaints Panel.
The Committee concluded: "it was not minded to recommend that a public sector ombudsman be established in the Island at this time".
Since that time, a number of public service ombudsman schemes have been set up in other small jurisdictions, and these could be a valuable point of reference in further development of a future scheme in Jersey.
When the States of Jersey Complaints Board (initially the Jersey Administrative Appeals Panel) was first set up, complaints had previously been heard by States Members – essentially politicians and civil servants were reviewed by politicians.
In its current format, the Board consists of local people carrying out the role of adjudicating on complaints.
A Jersey Public Services Ombudsman scheme would mean that professional experts would undertake this work.
In addition, one of the factors highlighted by the Independent Jersey Care Inquiry was how difficult people find it to challenge and make complaints in Jersey. There were
some suggestions about ways to give children more of a voice, and the Children's Commissioner is already in post.
However, it is not only children who find this difficult; the process of making a complaint about a public body can be challenging for anyone, and many do not have sufficient funds to escalate their complaint to the courts if they feel that they have not been dealt with fairly.
This can leave people feeling angry and powerless and it destroys trust in our public bodies.
There is no independent option for people to escalate their complaint if they cannot fund it via the courts, and this needs to be addressed.
We now have a Financial Services Ombudsman, but there are many occasions when people may have a grievance against a public body.
Many similar jurisdictions to Jersey have an ombudsman who can provide this service independently; the recommendation for a Children's Commissioner acknowledges the need for children to have this independent option to consider any grievances, but adults also need that provision. Some jurisdictions have a Children's Ombudsman, and initially this had been included as a possibility in the research undertaken. Matters have moved on, and also whilst the roles of Children's Ombudsmen and Children's Commissioners appear to be very closely interlinked in the places where they operate, at the same time there seems to be much duplication. As the Children's Commissioner position has been created and an appointment made – this proposition does not seek to encroach on the role of the new Children's Commissioner. Instead, the Assembly could request that a there should be meaningful dialogue with the 2 services and they are invited to draft and sign an MOU to establish co-operative workings rom the start. The approach would be a mutually beneficial one for both services.
In the majority of cases, the principal features of an ombudsman scheme are –
- Ombudsman schemes resolve complaints. They are not regulators, though some of their decisions may be seen as precedents and have wider effect.
- The ombudsman model is used to resolve complaints made by someone small' (citizen/consumer) against something big' (public body or commercial business).
- Ombudsman scheme procedures are designed to redress the difference between the resources and expertise available to the citizen/consumer and those available to the body/business.
- Access to ombudsman schemes is free for citizens/consumers, and they are not at risk of an order for costs. Ombudsman schemes handle enquiries as well as complaints, because dealing with an enquiry may head off a complaint (for example, by resolving a misunderstanding).
- The citizen/consumer first complains to the body/business, accessing the ombudsman scheme if dissatisfied with the body/business's response (or if it does not respond within a reasonable time).
- When dealing with complaints, ombudsman schemes seek to achieve a fair resolution at the earliest possible stage – rather than working towards an assumed future hearing. Ombudsman schemes use flexible and informal procedures – resolving cases by mediation, recommendation or decision as appropriate.
- Ombudsman schemes do not just rely on the evidence the parties volunteer. They actively investigate cases (using their specialist expertise) – calling for the information they require. So the outcome is not affected by how well either of the parties presents his/her/its case, and representation by lawyers (or others) is not necessary.
- Ombudsman scheme recommendations/decisions are based on what is fair in the circumstances, taking account of good practice as well as law. The ombudsman publicly feeds back the general lessons from cases they have handled, so stakeholders (including government/regulators) can take steps to improve things for the future.
- Because there is a flexible and informal process, and representation is not necessary, the costs of an average ombudsman case are significantly less than an equivalent case in a court or tribunal.
A Jersey Public Sector Ombudsman
The States of Jersey Board of Administrative Review has served the Island well for many years. Following on from the Clothier Report, reform has also been suggested within a recent report from the Jersey Law Commission, entitled "Improving Administrative Redress in Jersey", where the need for a Public Services Ombudsman for Jersey is, again, recommended.
An ombudsman would investigate complaints of maladministration by States of Jersey departments and associated public bodies.
The financial case
Each year Islanders and businesses pay hundreds of millions of pounds in taxes into the States Treasury, essentially for the States to provide directly or indirectly through service providers of various types, a range of services.
If the States of Jersey were a business – which it is not – it would be the largest organisation/ company/ service provider – in the Island by a substantial margin.
Whilst the States of Jersey's percentage spend expressed as a portion of GNI is low compared to many places – the States is nevertheless the dominant organisation in the Island in many ways.
Whether the services are provided at –
- zero cost to user
- a co-payment made by user
- users are charged full cost recovery.
Historically, the States of Jersey has not had a sophisticated complaints procedures as exists, albeit not universally, in some private sector organisations.
Consumers who purchase goods and services normally have statutory rights to seek redress when they are unhappy, and in competitive markets they can choose to take their business elsewhere.
Individual States Members often take up individual cases for their constituents on matters of public service delivery. These routes will still inevitably play an important role; however, such are the huge importance to individuals of the services being sought by the States, literally often the implications are life-long or life-changing – the issues under discussion are some of the most important issues in people's lives.
Scope of an Ombudsman
The ombudsman would receive complaints from an aggrieved person against public services; they usually have the power to investigate, to recommend corrective action where required, and to issue a report.
An ombudsman offers this service free of charge, thus is accessible to individuals who could not afford to pursue their complaints through the courts or wish to avoid needing to try and claim legal aid. Maladministration can be broadly defined as a public body not having acted properly or fairly, or having given a poor service and not put things right.
Public Services Ombudsmen have powers similar to a court, including –
- conducting formal investigations
- requiring documents to be produced
- requiring witnesses to attend and be examined, in some instances under oath.
However, there are distinctions between ombudsmen and the courts.
The courts determine whether people have suffered damage as a result of unlawful actions and are concerned with the legality of an action or decision. An ombudsman would generally ask different questions and look at different issues; doesn't usually involve lawyers or litigation, and proceeds more informally, using inquisitorial methods rather than the adversarial approach of a court.
An ombudsman offers an alternative system of justice, but is not a substitute for a court.
We must recognise that those affected by the abuse detailed in the Independent Jersey Care Inquiry Report are not the only ones who have suffered; there are others in Jersey who may have had similar experiences but were never in the care of the States of Jersey. There must be no barrier to an individual seeking justice and a fair hearing if they feel that they have a grievance against a public body which has not been dealt with justly.
Financial and manpower implications
There will obviously be initial set-up costs for the work and establishment of the new Public Services Ombudsman. There is a considerable body of work, including numerous reports dating back to 2000, which set out and advance the case for a Public Services Ombudsman and document the experience of other jurisdictions. Drawing from this information and laws already in place will reduce the cost of set-up. It is difficult to estimate precisely the costs, but they are estimated to be within the region of £200,000 to £250,000.
If this proposition is accepted, the set-up costs should be prioritised against the head of expenditure allocation for Public Sector Restructuring.
The ongoing annual costs in 2019 should be prioritised from departmental underspends from 2018 and 2019, and thereafter should be properly estimated, verified and inscribed, as the report suggested, in the 3rd Medium Term Financial Plan which will allocate all departmental public sector spending for the period 2020 to 2024.
A better deal for Islanders
- Best for Citizens – Accessibility and Effectiveness: reformed arrangements and institutions should be easily accessible by and intelligible to members of the Public with a complaint; should inspire confidence that complaints will be investigated thoroughly; and should provide assurance that public service providers will take action to learn from mistakes and to prevent repetition.
- Best for States of Jersey Legislative and Government – Accountability and Governance. Such arrangements should meet modern standards by delivering clear accountability of the Public Sector to the States Assembly, both in terms of performance against key objectives and for the effective and prudent use of public money. They should also meet contemporary norms for effective internal governance.
- Value for Money – the expected findings of the Ombudsman should be designed to ensure and maximise the potential to deliver ever greater value for money, reflecting continuing pressure on public funds and the ongoing imperative of seeking to achieve more with less.
Suggested Work Programme
When the in-principle decision has been made to introduce a Public Services Ombudsman, the Chief Minister's Office should commission up-to-date research on the expected set-up and ongoing costs; and the expected benefits for service delivery and value for money that will result from an operational Public Services Ombudsman scheme in Jersey, to include the following –
- Assessment of the operation and effectiveness of Ombudsman schemes in small jurisdictions, e.g. Bermuda, Gibraltar and the Cayman Islands.
- What lessons can be learned for Jersey from recent developments in Ombudsman schemes across the U.K. – particularly the newer schemes in Wales, Scotland and Northern Ireland.
- Consider which other public bodies in addition to those approved by the Assembly should be included within the remit of a Jersey Ombudsman.
- With regard to design and implementation, to consult widely on the design of the Jersey Ombudsman, including the members of the States of Jersey Complaints Board, to ensure that the best elements of this scheme are included.
- Consider how the proposals for a wide-ranging public sector and health remit can complement the recent appointment of the Children's Commissioner to ensure that maximum advantage of the complementary aspects of these roles is made.
- Explore the procedures available to a Jersey Ombudsman, particularly alternative dispute resolution methods ("ADR").
- Examine the potential relationships between a Jersey Ombudsman and other mechanisms for redress (including the Royal Court and appeals to Tribunals).
- Estimate a range of the types of potential case-loads that a Jersey Public Services Ombudsman could expect within public sector service types, e.g. Health, Social Security, Planning and non-States Departments.
- Explore what, if any, scope there may be for joint working between the Channel Islands Financial Ombudsman ("CIFO") and a Public Services Ombudsman.
- Consider the political and practical feasibility of developing a Public Services Ombudsman in conjunction with Guernsey, examining whether there are lessons for joint working from the creation of CIFO.
- To work closely with the Jersey Courts Service and associated Tribunals to ensure efficient, effective and efficacious working.
- To ensure that the new Ombudsman is set up in a manner which maximises the opportunity for embracing the latest digital working practices to ensure value- for-money, maximum public accessibility and transparent working.
- To set out the financial and staffing implications, a full costed operating model for a Jersey Ombudsman, and to ensure that the necessary resource requirements are placed before the States Assembly for approval in the 3rd Medium Term Financial Plan.
The Clothier Report
APPENDIX 3
Law Commission Report
Links to other relevant online resources
"The creation of an English Public Services Ombudsman: mapping a way forward" by Richard Kirkham and Jane Martin –
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"Six Rules for getting it right (The Ombudsman's Guide to good administration)" issued by the Office of the Ombudsman in Dublin, Ireland –
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Ombudsman Association website –
http://www.ombudsmanassociation.org/ _____________________________________________________________________
"Ombudsman Association 2017 (Promoting independent complaint resolution)" (Annual Report of the British and Irish Ombudsman Association) –
http://www.ombudsmanassociation.org/docs/Annual_report_OA_16- 17_Final.pdf
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