Chapter 16 Answers to quick test questions

The role of the Parliamentary Ombudsman is to investigate complaints of maladministration made against central government departments. In England, the Parliamentary Ombudsman also acts as the Health Service Ombudsman and investigates complaints of maladministration made against the NHS.

Maladministration is not defined in legislation but Richard Crossman, who introduced into Parliament the legislation that created the Parliamentary Ombudsman, stated that maladministration included ‘neglect, inattention, delay, incompetence, ineptitude, perversity, arbitrariness and so on’ ¹. This approach was updated in 1993, when the Parliamentary Ombudsman considered that maladministration included the following:

• rudeness (though this is a matter of degree);
• unwillingness to treat the complainant as a person with rights;
• refusal to answer reasonable questions;
• neglecting to inform a complainant on request of his or her rights or entitlement;
• knowingly giving advice which is misleading or inadequate;
• ignoring valid advice or overruling considerations which would produce an uncomfortable result for the overruler;
• offering no redress or manifestly disproportionate redress;
• showing bias, whether because of colour, sex, or any other grounds;
• omission to notify those who thereby lose a right of appeal;
• refusal to informal adequately of the right of appeal; and
• faulty procedures².

This is clearly more detailed than the approach of Richard Crossman, but is still quite negative in nature. In 2009, the Parliamentary Ombudsman considered maladministration in a different manner. She released the Principles of Good Administration which, if complied with, should mean that a public body is unlikely to have caused maladministration. The principles are as follows:

• Getting it right;
• Being customer focused;
• Being open and accurate;
• Acting fairly and proportionately;
• Putting things right;
• Seeking continuous improvement³.

Yes. In many ways, the whole point of the Ombudsman is to capture poor administration. Although poor administration can result in unlawful decisions being made, this does not have to be the case. The ‘Debt of Honour’ case highlights this point. In that case, the Court of Appeal found the actions of the government department were lawful because the announcement made was not sufficient to give rise to a legitimate expectation. However, the Ombudsman found that maladministration had occurred, as by not following through with the terms of the original announcement, some were now being left out who may have expected to benefit under the scheme as it was originally announced.

There are several restrictions on the Ombudsman. The first is the MP filter, which requires that a complainant has to go through their MP. In recent years, this has come under sustained criticism, with several proposals to abolish it. There is evidence that some MPs simply automatically forward any complaint onto the Ombudsman, meaning that the ‘filter’ serves little purpose.

Other restrictions include the subject matter of investigations. While some restrictions, such as international relations, the granting of honours, or matters relating to civil or criminal legal proceedings intuitively make sense, the restriction on commercial transactions is harder to understand. This means that a contract entered into by the government with a private company to provide services on the government’s behalf cannot be considered by the Ombudsman. Given that the largest contracts could be worth several hundred million pounds, this is an increasingly significant gap in the Ombudsman’s remit. Although decisions made under the contract by the company can be considered by Ombudsman, this is of little help if the reason for the maladministration is due to the terms of the contract under which the decision is made.

Generally, the Ombudsman occupies an interesting position in the constitution: it stands between the executive and Parliament and appears to fulfil a judicial function through dealing with disputes that citizens have with the government, even though it is not part of the judiciary. The traditional view is that the Ombudsman is a ‘servant of the House’, as it was created to investigate government departments in ways that MPs lack the resources and expertise to do.

This is reflected in several features of the Ombudsman. Firstly, by presenting an Annual Report to Parliament. Secondly, should the recommendations of the Ombudsman not be accepted by the government, the Ombudsman can lay a special report drawing the attention of Parliament to this issue. The Public Administration and Constitutional Affairs Select Committee may then conduct its own investigation to increase the political pressure on the government’s findings.

The most controversial link between Parliament and the Ombudsman is the ‘MP filter’. This is the requirement that a complaint made to the Ombudsman must be referred to them by an MP. The aim behind the MP filter was to maintain the traditional approach to ministerial accountability, with the government being accountable to the electorate through their MP and Parliament. However, the MP filter has been increasingly criticised in recent years, with several proposals being made to abolish it. Arguably, the problem is not necessarily the MP filter itself, but that it is currently the only way a complaint can be made to the Ombudsman. Arguably, it could be retained, but the Ombudsman should be able to accept complaints directly and encourage as many complaints as possible.

While it is correct that the recommendations of the Parliamentary Ombudsman are not legally binding, politically they carry significant weight. Figures indicate that as many as 99% of the Ombudsman’s recommendations are accepted. This reflects the notion that the Ombudsman is meant to be in a supportive relationship with the public bodies they investigate, as it is in the interests of all to ensure that the maladministration complained of does not reoccur.

However, this means that 1% of recommendations are not followed by public bodies. In these instances, the Parliamentary Ombudsman can lay a special report before Parliament. The aim of this is to bring the matter to the attention of Parliament, who can then place political pressure on the government to follow the Ombudsman’s recommendation. To date, there have only been seven reports issued since 1967 but five of these have been published since 2005. This may indicate that this is an increasing problem. In addition, the Public Administration Committee may hold an inquiry into the issue, which means that the relevant government minister must account to Parliament as to why they have chosen not to follow the recommendations of the Ombudsman. This means that the issue then becomes one of ministerial accountability.