In a new report for the Nuffield Foundation, The Ombudsman, Accountability and the Courts, Richard Kirkham explores the accountability and regulatory structure that surrounds the ombudsman sector, with a focus on the role of the judiciary. The report finds that the court’s role in scrutinising the sector is more impactful than is often understood. Further, the role of the courts is especially important because without this input the ombudsman sector operates in a largely self-regulated manner, developing its own standards by creating new accountability solutions - such as publishing decisions, internal review of decisions and external peer review - in order to maintain their legitimacy and increase assurance.
To deliver procedural fairness in the ombudsman sector, these internal supplementary processes are necessary because for the vast majority of parties to ombudsman disputes, redress through the courts is an unrealistic option. More needs to be done, however, to embed these new approaches across the sector and scrutinise their effectiveness in order to provide assurance that the quality of individual decisions is sufficiently high. The report therefore concludes with a series of recommendations designed to make the framework that surrounds the ombudsman more robust. In addition, the report adds to the growing body of academic and policy reviews that have proposed various legislative reforms in the sector, aimed at allowing the office to have a greater impact in advancing administrative justice, good administration and the rule of] law.
The report’s relevance is not just to those concerned with the ombudsman sector, but also current debates on the role of judicial review. The study provides empirical context for the work of the courts in judicial review, in a period when the role of the courts in judicial review is subject to much debate. The report will also be of interest to those looking to understand equivalent relationships between the courts and the various watchdogs and regulators that operate in the British constitutional set-up, including other specialised non-judicial dispute resolution mechanisms.
The report’s principal findings and recommendations
- Judicial review should be considered the appropriate solution for legal oversight of the ombudsman sector, as it provides strong background support for the evolution of standards in the sector and upholding standards of good administration. By contrast, with the exception of the Pensions Ombudsman, appeal processes risk exacerbating the embedded disadvantages experienced by individual complainants.
- Judicial review acts to assist ombuds in managing their disputes with aggrieved complainants by bringing to an end the grievances of complainants and largely serves to filter claims into court which raise important points of law.
- Judicial review does not offer an efficient route for challenging decisions of an ombudsman. Very few ombudsman decisions have been successfully challenged in judicial review and there is no evidence of a litigation effect, whereby the commencement of legal proceedings triggers a remedy from an ombudsman before a full hearing. There is a higher failure rate of claimants in ombudsman case law when compared to other areas of judicial review, largely explained by the dominance of litigants-in-person amongst the claimants.
- Litigants-in-Person can raise important points of law and consideration should be given as to how to best support them in judicial review.
- There is more to be made of the capacity of the office of the ombudsman to (i) promote rule of law values; (ii) work cooperatively with other parts of the justice system; (iii) improve access to justice. More targeted use could be made of public law litigation to advance administrative justice. Opportunities exist to use ombudsman investigations as a catalyst for collective action or reference procedures in order to engage the court in legal proceedings that impact systemic questions of public administration concern. Such actions are also illustrations of how a stronger partnership arrangement could be built between the ombudsman sector and courts and tribunal sector.
- The ombudsman model works better when it is equipped with a broad toolkit of powers. Reform of the public services ombudsman model in England is needed to match developments elsewhere.
- There should be a statutory duty for ombudsman schemes to publish their decisions and operate an internal review process that complainants and investigated bodies can access. There should also be an element of external oversight of internal review processes (eg an independent assessor).
- The legislation of all ombudsman schemes should be subject to Government and/or Parliamentary review on a regular periodic basis (eg every seven years) to take into account and reflect changes in the administrative justice landscape over time.
Outline of the Report
The report has seven chapters.
After an introductory chapter, Chapter 2 details the multiple ways in which an ombudsman can be impacted by the work of the courts and the overall legal and regulatory framework in which schemes operate.
Chapter 3 considers the extent to which the courts offer an effective redress function for either complainants or investigated bodies aggrieved at the decision-making of an ombudsman.
Chapter 4 looks at the evidence that the courts perform an important role in providing institutional support for the authority of the ombudsman process and in assisting the ombudsman in managing complaints to a conclusion.
Chapter 5 examines the extent to which the courts have structured good administration and procedural fairness standards through the development and the refinement of the law in the ombudsman context.
Chapter 6 takes stock of the remaining gaps left in the current regulatory and legal framework that surrounds the ombudsman sector, before the report ends in chapter 7 with a series of recommendations for reform.