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Procedural fairness, accountability and the ombudsman

Challenging the ombudsman project start date: April 2017
Challenging the ombudsman project end date: October 2018
Funding awarded by the Nuffield Foundation: £83,491

The research background

Previously the work of the lead investigator, Richard Kirkham, has been influential in rasing awareness of the potential of ombudsman schemes to enhance administrative justice and shifting the publicy debate in the direction of reform (see Transforming the role of ombudsmen in the UK).

Transforming the role of ombudsmen in the UK

New project - Challenging the ombudsman: Are current review processes fit for purpose?

This new project focuses on Dr Kirkham's current research into the accountability and procedural fairness of ombudsman schemes.

Photo of Dr Richard KirkhamOmbudsman schemes have an important constitutional role to play in providing a dispute resolution service and highlighting areas of major deficiency in the delivery of services. Examples of the recent input of ombudsman schemes can be found in the areas of special education needs, healthcare and prisons.

Dr RiCHARD KIRKHAM

Project outline

The quality of justice provided in the ombudsman sector will always be a particular concern of users of the service, and all the more so in the public sector where the legal options for redress are often unrealistic or inaccessible. How do we know whether ombudsman schemes provide quality justice?

This question matters because the ombudsman sector has become a central component of the administrative justice system, with a significant and growing role and expanding remits and powers. This expanded role comes in light of restrictions on the availability of public funding to challenge decisions made by public bodies. As its significance increases, the ombudsman sector requires greater scrutiny to provide assurance of its adherence to appropriate standards of justice. Decision-making in this sector is on the whole not subject to appeal mechanisms, but both judicial review and internal review are used by parties to challenge the quality of justice provided in decisions. Further assurance is provided in some schemes through the publication of decisions. As yet, no independent study has been conducted into the scrutiny of decision-making standards through challenges both internal and external. This project aims to examine three aspects of such scrutiny: legal challenges, internal review, and transparency in decision-making.

Project aims

The project’s aim is to understand the impact of the different means employed to verify the quality of ombudsman determinations and address user concerns. The project will use a mix of methodological approaches to map and analyse current practice, with a focus on three aspects of the model that ombudsman schemes have built up to provide assurance as to the quality of determinations: judicial oversight; internal review of complaints; and publication of decisions. The results of the study will be compared with the theoretical claims made in favour of these processes and the expectations of their output.

Project objective

The objectives of the study are: (1) to map and then (2) analyse the processes in place, leading then to two further objectives, (3) to encourage reform in the sector and (4) to help build capacity for further oversight and research on the ombudsman.

The ongoing objective of the research is to understand and influence the design of ombudsman schemes in the UK.

Project Resources

Project Publications

R. Kirkham, A study into ombudsman judicial review Online appendix: Evidence of Results (PDF)

R. Kirkham, ‘Judicial review, litigation effects and the ombudsman’ Journal of Social Welfare and Family Law (2018:1) (forthcoming)

Conference papers and presentations

Conference papers

E. O'Loughlin and R. Kirkham, 'Content Analysis of Judicial Decision-Making' UKAJI, ECR Workshop on administrative justice, University of Sheffield, 1 Sep, 2017.

R.Kirkham and E. O'Loughlin, 'Content analysuis of judicial decision-making' Society of Legal Scholars, University College, Dublin, 6 September, 2017)

Presentations

Seminar by the Public Services Ombudsman for Wales, 'Citizen-Centred Services: A New Ombudsman Bill' at workshop on Complaints Culture: Proactive Not Reactive, February 2018, Llandidrod Wells, Wales.

International Ombudsman Institute, Europe: ‘Comparing the brand: a Global Analysis on the Ombudsman’ at a conference on The Ombudsman in a decade of public policy change, Aberystwyth University, 28 October 2016.

ESRC funded academic/practitioner conference: ‘Problems with justice and ADR’, ADR and Justice Conference, University of Oxford, 18-20 April 2016.

Legal Interest Group of the Ombudsman Association. 'Building a Legal Database for the Ombudsman Sector', Meeting held at the Office of the Independent Adjudicator for Higher Education, Reading, March 2016.

Public Sector Ombudsmen Group (UK). 'The Law and the Ombudsman', Workshop held at the Financial Ombudsman Service, Reading, March 2016.

Parliamentary seminar to MPs organised by PHSO Pressure Group and the Patients Association, 'The Forthcoming Bill on a new Public Sector Ombudsman', Workshop held at the House of Commons, 23 February, 2016

Legal Interest Group of the Ombudsman Association. 'Judicial Review and the Ombudsman Sector'. Meeting held at Gibraltar House, London, 28 October 2015.

ESRC funded academic/practitioner conference: ‘Evaluating Ombudsman Schemes in the Round’, Conference on Trusting the middle –man’: Impact and Legitimacy of Ombudsmen, University of Oxford, April 2014.

National Assembly for Wales, ‘The rise of watchdogs in Wales’, Workshop on Commissioners and Ombudsmen and the infrastructure of Welsh Governance: lessons from Wales and lessons for Wales, The National Assembly for Wales, March 2014

Blog entries

KIRKHAM, R (2018) 'Safeguarding procedural fairness or imposing excessive legalism?' (available on the UK Administrative Justice Institute blog site, March 5 2016)

KIRKHAM, R (2017) ‘The Proactive Model of the Ombudsman: proposed reform in Wales’ (available on the Institute of Welsh Affairs blog, 'Click on Wales', 2 March 2017)

KIRKHAM, R and Thompson, B. (2017) ‘An initial commentary on the draft public services ombuds bill’ (available on the UK Administrative Justice Institute blog site, December 20 2016)

KIRKHAM, R. (2016) ‘A reply to Judicial Capture of Political Accountability’ (available on the website of the Judicial Power Project)

KIRKHAM, R. (2016) ‘JR55: Five activist strategies a judge should avoid’ (available on the UK Constitutional Law Association website)

KIRKHAM, R. (2016) ‘The Forthcoming Bill on a new Public Sector Ombudsman’ (available on the blog Thinking About Administrative Justice)

KIRKHAM, R. (2016) ‘Eight predictions for 2016: A view into the ombudsman world’ (available on the blog Thinking About Administrative Justice)

KIRKHAM, R. (2015) ‘More merger than radical reform: The Government’s response to its Consultation on a new Public Services Ombudsman’ (available on the website of the Ombudsman Association)

KIRKHAM, R. (with Thompson T.) (2015) ‘Judicial Neutering of the Powers of the Ombudsman’ (available on the UK Constitutional Law Association website)

KIRKHAM, R. (2015) ‘Mapping the new world of accredited ADR schemes’ (available on the UK Administrative Justice Institute website).

KIRKHAM, R. (2015) ‘Analysis: Not there yet but some ombudsman reform buses have come into sight’ (available on the UK Administrative Justice Institute website)

KIRKHAM, R. (2014) Another false dawn, or the moment ADR becomes mainstream? U.K. Const. L. Blog (7th May 2014) (available on the UK Constitutional Law Association website)

KIRKHAM, R. and Martin, J. (2014) The creation of an English Public Services Ombudsman: mapping a way forward (available on the Democratic Audit website)

Reports and further reading

Previous reports

R. Kirkham and J. Martin, The creation of an English Public Services Ombudsman: mapping a way forward (available on the Democratic Audit website, 2014)

R. Thomas, R. Kirkham and J. Martin, External Evaluation of the Local Government Ombudsman. (2013) Available on Local Government Ombudsman website.

R. Kirkham, A Review of the Gibraltar Public Services Ombudsman (62 pages) available from the Gibraltar Public Services Ombudsman.

Further reading

Buck T, Kirkham R & Thompson B (2011) The Ombudsman Enterprise and Administrative Justice. Routledge

Kirkham RM (2017) JR55, judicial strategy and the limits of textual reasoning. Public Law(1), 46-62. View this article in WRRO

Behan CM & Kirkham R (2016) Monitoring, Inspection and Complaints Adjudication in Prison: The Limits of Prison Accountability Frameworks. The Howard Journal of Crime and Justice, 55(4), 432-454. View this article in WRRO

Kirkham RM (2016) Understanding the Case Law on the Ombudsman. Journal of Social Welfare and Family Law. View this article in WRRO

Kirkham RM (2016) A 2020 Vision for the Ombudsman Sector. Journal of Social Welfare and Family Law. View this article in WRRO

Kirkham RM & Wells P (2014) Evolving Standards in the Ombudsman Sector. Journal of Social Welfare and Family Law(2), 190-207. View this article in WRRO

Kirkham R & Martin J (2014) Designing an English Public Services Ombudsman. Journal of Social Welfare and Family Law, 36(3), 330-348. View this article in WRRO

Kirkham RM (2011) Implementing the Recommendations of the Ombudsman … again. Journal of Social Welfare and Family Law(1), 71-83.

Buck T, Kirkham RM & Thompson B (2011) Time for a ‘Leggatt’ style review of the ombudsman system. Public Law, 20-29.

Kirkham RM, Buck T & Thompson B (2009) Putting the Ombudsman into Constitutional Context. Parliamentary Affairs, 62(4), 600-617.

Kirkham RM (2008) Explaining the lack of enforcement power possessed by the ombudsman. Journal of Social Welfare and Family Law(3), 253-263.

Kirkham RM (2008) When Putting Things Right Goes Wrong: Enforcing the Recommendations of the Ombudsman. Public Law, 510-530.

Kirkham RM (2006) Challenging the authority of the Ombudsman: The Parliamentary Ombudsman’s special report on wartime detainees. Modern Law Review, 792-818.