KEYNOTE ADDRESS - THE OMBUDSMAN TODAY – AN INTERNATIONAL CONTEXT (Part 2 of 8)

The context in which UK Ombudsmen currently operate has been changing at a pace in recent years. In a 2013 study on The future of ombudsman schemes: drivers for change and strategic responses, which colleagues at QMU produced for the English and Welsh Legal Ombudsman, three particular drivers of recent ombudsman changes in the UK were identified. These drivers are developments in consumer behaviour, in service provision and in the policy environment.

Firstly to consider changes in consumer behaviour. Our experience in the UK is one of changing consumer demand, with increasing levels of complaint and increasing (but still fairly low) levels of ombudsman awareness. There are also changes in the diversity of the consumer base, with some move away from the ‘traditional’ older, white, middle class and male demographic. There are changes in consumer expectation, in part driven by advances in technology, with some consumers becoming increasingly demanding and resourceful, and with greater expectations relating to speed, simplicity and online provision. It is also the case, however, that some consumers remain passive or vulnerable.

In relation to demanding behaviour, I acknowledge the work carried out in Australia on Managing Unreasonable Complainant Conduct. We refer to the associated Manual in many of our courses at QMU. And you may want to take a look at some research carried out recently by two academics whose work in general I would commend to you: Chris Gill from QMU [now at the University of Glasgow] and Naomi Creutzfeldt [now at the University of Kent].

In 2015 these academics presented preliminary findings relating to an exploratory project on online activism relating to Ombuds schemes. And they identified four broad themes in terms of the criticisms that these ‘ombudsman watchers’ have about ombudsman schemes. These are a lack of accountability; concerns about procedural and practice issues, such as Ombuds moving towards a call centre model (which was seen as being more about reducing demand than having complaints investigated thoroughly); the staffing and qualifications of those working in Ombuds schemes; and the negative impact that the Ombuds system had on complainants. I will come back to the concern about qualifications later in this address.

A second change driver impacting on UK Ombuds is the way in which organisations are providing services. There are changes in operational practice, such as in the increasing use of new technology and a move to a more relational approach which is focused on outcomes. The boundaries between services within sectors are changing, with increasingly integrated service provision.

Also, the boundaries between the public and private sectors are changing, with some public ombudsmen now investigating private companies, and other former public services becoming privatised.

The third change driver identified by the QMU study centres on changes in the policy environment. There are policy changes relating to austerity and funding restraints, including budget cuts, and there are changes to both consumer advice and regulatory policy.

There is also more public and critical scrutiny of ombudsmen schemes, such as the Public Administration Select Committee of the UK Parliament carrying out two recent inquiries relating to Ombudsmen, both of which had associated Reports.

The first PASC Report in 2014, called More complaints please!, was prompted by the Francis Report on the tragic deaths at the Mid-Staffordshire NHS Foundation Trust in England. It demonstrated the need for health and social care to work together and to provide systemic solutions to systemic defects. The second report, called Time for a People’s Ombudsman Service, was also published in 2014, and had the central finding that the PHSO was ‘stuck in time’ and urgently in need of modernisation.

UK Ombuds have also felt the impact of a recent European Union Directive on Consumer Alternative Dispute Resolution.

This Directive, which became ‘live’ in the UK in 2015, imposes a requirement on businesses to point consumers to a certified ADR entity if they cannot resolve a dispute in-house about the sale of products and services.

And its impact is resulting in procedural change for private sector Ombudsmen schemes in particular. It is also 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.

For example, when writing about the impact of the ADR Directive, Pablo Cortes from the University of Leicester commented recently about the dangers of ‘forum shopping’, saying that:

“those who pay the fees and choose the ADR entity will have economic incentives to choose one that is more likely to decide in their favour”

And a number of commentators consider that a major failing of the UK’s implementation approach to the ADR Directive is not to have appointed a single competent authority to ensure that certified ADR providers meet certain standards relating to independence, impartiality, and quality of expertise. As Richard Kirkham, a valued colleague from Sheffield University, has pointed out in a blog for the UK Administrative Justice Institute [now the Essex Constitutional and Administrative Justice Institute] :

“Further complexity will be built into the overall system by making a series of sector regulators responsible for performing the overarching role of the competent authority, whose duties will include monitoring the performance of certified ADR providers against the requirements of the Directive.”

These various change drivers have led to increasing overlaps between ombudsmen, the courts, tribunals and other forms of dispute resolution in the UK, and also have resulted in a more fragmented and confused dispute resolution landscape.

And the ensuing issues facing UK Ombudsmen as they change and proliferate is whether the ombudsman concept is still a distinct ‘brand’ and whether Ombuds remain able to promote and restore trust in the bodies within their jurisdictions.

I think that a unique characteristic of Ombuds, particular those in the private sector, is their ability to consider what is fair and reasonable in particular circumstances, and to balance this approach with the need for consistency.

And I think that we need to make sure that in all this change we do not lose sight of this unique approach.

Here is a link to the third article in this series (Part 3 of 8)

References

Cortes, P. 2015. The Impact of EU Law in the ADR Landscape in Italy, Spain and the UK: Time for Change or Missed Opportunity? [online]. [viewed 6 November 2023]. Available from: https://www.researchgate.net/publication/282546201_The_impact_of_EU_law_in_the_ADR_landscape_in_Italy_Spain_and_the_UK_time_for_change_or_missed_opportunity

Creutzfeldt N., and Gill, C. 2015. Critics of the Ombudsman System: Understanding and Engaging Online Citizen Activists [online]. Policy Brief. 16pp. [online] [viewed 6 November 2023]. Available from: https://www.researchgate.net/publication/287815344_Critics_of_the_Ombudsman_System_Understanding_and_Engaging_Online_Citizen_Activists?channel=doi&linkId=5679aaa008ae7fea2e989340&showFulltext=true

Gill, C., Williams, J., Brennan, C. and O’Brien, N., 2013. The future of ombudsman schemes: drivers for change and strategic responses. Edinburgh: Queen Margaret University. [online] [viewed 6 November 2023]. Available from: https://eresearch.qmu.ac.uk/bitstream/handle/20.500.12289/3251/eResearch_3251.pdf?sequence=1&isAllowed=y

Francis, R. 2013. Report of the Mid-Staffordshire NHS Foundation Trust public inquiry. HC 947 (2012–13). [online] [viewed 6 November 2023]. Available from: https://www.gov.uk/government/publications/report-of-the-mid-staffordshire-nhs-foundation-trust-public-inquiry

House of Commons, Public Administration Select Committee, Twelfth Report of Session 2013–14a, More complaints, please!, HC 229, 14 April 2014. [online] [viewed 6 November 2023]. Available from: https://publications.parliament.uk/pa/cm201314/cmselect/cmpubadm/229/22902.htm

House of Commons, Public Administration Select Committee, Fourteenth Report of Session 2013–2014b, Time for a People’s Ombudsman Service, HC 655, 28 April 2014.[online] [viewed 6 November 2023]. Available from: https://publications.parliament.uk/pa/cm201314/cmselect/cmpubadm/655/655.pdf

Kirkham, R. 2014. The Government’s Plans for Consumer ADR – Innovation or More of the Same. [online]. [viewed 6 November 2023]. Available from: https://ukaji.org/2014/11/26/analysis-kirkham-the-governments-plans-for-consumer-adr-innovation-or-more-of-the-same/