The Role of the Ombudsman in Resolving Disputes

1. The Role of the Ombudsman in Resolving Disputes Marie Anderson Deputy Assembly Ombudsman and Commissioner for Complaints for Northern Ireland

2. Law Commission Report on Public Law Remedies Four Pillars of Administrative Justice Complaints Mechanisms of Public Bodies Ombudsman Tribunals Courts [Judicial Review] Need for User Focus

3. Administrative Justice Landscape Government regulates various aspects of our everyday lives, making decisions in relation to individual people. ‘Administrative Justice’ includes the procedures for making such decisions, the law that regulates decision-making, and the systems (such as the various tribunals and ombudsmen) that enable people to challenge these decisions. [AJTC]

4. The Ombudsman Enterprise Scandinavian origins; Ombudsman is a ‘trusted official’ who investigates complaints against administration; New Zealand Ombudsman –’The Reviewer of Administrative Decisions’; Classical Public Sector Ombudsman; BIOA criteria of Independence, Fairness, Effectiveness and Public Accountability [BIOA consultation to add openness and transparency to this criteria]

5. The Northern Ireland Ombudsman Popular title for two statutory offices Assembly Ombudsman for Northern Ireland - deals with complaints of maladministration about Northern Ireland Departments and their agencies under the Ombudsman (NI ) Order 1996 – exception PPS(NI) Commissioner for Complaints for Northern Ireland - complaints of maladministration about local government , health service, NIHE, Housing Associations and justice bodies Commissioner for Complaints – also Health jurisdiction includes complaints about clinical judgement of health service providers including GPs, Pharmacists and Dentists

6. History of the Northern Ireland Ombudsman ‘Parliamentary’ Commissioner for Administration – first such office in the UK; Parliamentary Commissioner Act 1967 established the Commissioner who may only receive complaints through members of the House of Commons; Response in Northern Ireland. Stormont established the office of Assembly Ombudsman in 1969; Based on Parliamentary Commissioner Act 1967; Backdrop of concerns over discrimination in employment, housing and local government; Commissioner for Complaints established to deal with complaints of maladministration to include bias and discrimination; Direct access to Commissioner for Complaints.

7. Trusted Official • Independent of governmental bodies that the Ombudsman investigates; • An Agent of Parliament; • Northern Ireland Ombudsman is one the Statutory Officers of the Northern Ireland Assembly; • Like Comptroller and Auditor general; • Holds the Executive to account for actions or inactions of public bodies; • Independence underpinned by appointment and funding arrangements; • Appointment by the Queen under Royal Warrant; • Authority derived from letters patent; • NI Ombudsman currently does not formally report to a Committee of the NI Assembly.

8. What does an Ombudsman do ? Investigate Complaints of maladministration; No statutory definition of maladministration ; Crossman Catalogue - bias, neglect, delay turpitude, arbitrariness; PHSO Principles of Good Administration; Promoting Good Administration; Ombudsman reports on findings of investigation; Ombudsman makes recommendations (not binding)

9. Relevant Ombudsman Legislation Ombudsman (Northern Ireland ) Order 1996 Commissioner for Complaints (Northern Ireland ) 1996 Commissioner for Complaints (Amendment) (NI) Order 1997 North /South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 Department of Justice (NI) Order 2010 [adds DOJ to jurisdiction] Additional justice bodies added to Commissioner for Complaints jurisdiction.

10. Ombudsman (NI) Order 1996 Establishes the Assembly Ombudsman for Northern Ireland (AONI) Appointment tenure, salary , pension and staffing arrangements (articles 4-6) Article 8 and Schedule 2 list all Departments and other authorities subject to AONI jurisdiction* Article 8(2) OFMDFM power to amend the list by entry or removal of bodies subject to jurisdiction Article 9 – Matters subject to Investigation ‘any action taken by or on behalf of a department or other authority in the exercise of ‘administrative functions’ * [All 12 NI Departments are within AONI jurisdiction, not PPS(NI)]

11. Investigations Every investigation shall be conducted in private; Ability to ask for information from any person or body or third party; Equivalent powers to a High Court Judge; Obstruction/Contempt – certify to High Court; Does not determine rights and obligations; Makes Findings and Recommendations.

12. Ombudsman Reports • Annual reports published in public domain; • Periodic digest on sectoral issues; • Anonymised as regards complainant; • Privilege attaches; • Statutory bar on Ombudsman giving evidence; • Statutory bar on disclosure of information obtained.

13. Enforcement No formal Enforcement Powers under Ombudsman (NI) Order 1996; Provision for special report if NI Department or agency or body in jurisdiction fails to implement recommendation; Not used in NI although threatened – Jill McIvor example; Commissioner for Complaints – can make such report as he thinks fit; Complainant can seek damages and costs in County Court; Craigavon case – no jurisdictional limit on amount of award and can appeal to High Court and Court of Appeal.

14. Proposed New Legislation OFMDFM Committee Bill • Merging two offices; • Removal of MLA filter [twin track approach]; • Extension of jurisdiction [schools and colleges of further and higher education].

15. Further Proposals (debate ongoing) • Own initiative; • Removal of employment jurisdiction; • Remove right to go to County Court; • Remove right to formal hearing.

16. Useful Contacts • www.ni-ombudsman.org.uk • Freephone: 0800 34 34 24 • www.ombudsman.org.uk • www.lgo.gov.uk • www.bioa.org.uk