Minutes of the Meeting of the Legal Interest Group of the Ombudsman Association

MINUTES OF THE MEETING OF THE LEGAL INTEREST GROUP OF THE OMBUDSMAN ASSOCIATION

HELD AT THE OFFICES OF THE SCOTTISH PUBLIC SERVICES OMBUDSMAN (SPSO)

EDINBURGH 14 MARCH 2014

Welcome

Jim Martin and Val Malloch (SPSO) welcomed everyone to the offices of the SPSO.

The Chairperson, Marie Anderson from the Northern Ireland Ombudsman’s Office (NIO), welcomed new members to the meeting. Marie dealt with the apologies and indicated that the Financial Ombudsman Service has offered to host the next meeting.

The minutes from the previous meeting in Dublin in October 2013 were agreed. Ian Pattison from the Ombudsman Association (OA) highlighted an amendment to the minutes regarding the title of ‘Ombudsman’ as a protected name. Andrea McIlroy (NIO) to make this change and circulate minutes again.

Val Malloch – SPSO

 SPSO’s role of Complaints Standard Authority (CSA) – the SPSO’s governing legislation came into effect in 2002. In 2011, SPSO was given the power through separate legislation to ensure standardised complaints processes were in place throughout the public sector in Scotland. In April, this will be in effect throughout all sectors. A lot of work has been done through the use of networks and working groups given SPSO only have small number of staff working within the CSA itself (question of whether straying into the realm of regulator). SPSO has a training unit and conduct courses and e-learning in this regard. SPSO also work closely with the NHS. SPSO working with regulators to establish model complaints procedures/templates. SPSO currently working with local government to establish key performance indicators. If organisations do not sign up, enforcement powers are provided under section 16(D) of the Scottish Public Services Ombudsman Act 2002 – public declaration of non-compliance notice – SPSO has not used this, and working with the sector helps;  Water complaints were brought within the SPSO’s jurisdiction under the same legislation as the CSA. SPSO deal with business to business complaints in this area. It is an opt-in scheme, if companies opt-in, customers of that company are treated as members of the public and that company is treated as a listed authority. Other bodies under jurisdiction could bring water complaint;  Government currently working out review/appeal process of the Scottish Welfare Fund and SPSO being considered as an option (to include consideration of merits of a decision). This move could leave SPSO open to judicial review. Possibility of move from recommendations to binding powers. Marie Anderson (NIO) noted that the NIO will be taking on complaints about local government ethical standards this year. There is the possibility that the NIO may have power to impose sanctions in this area of investigation. However this is at odds with the process for complaints about maladministration.

Comments:

 Ian Pattison (OA) queried whether the police were in the SPSO’s jurisdiction. Val indicated that the police are not within jurisdiction but this has been considered in the past.  Freda Sharkey from the office of the Legal Ombudsman (LeO) asked if the SPSO had specialist teams. Val stated that this is not the case.

Ken Macdonald – Information Commissioner’s Office (see handout for detail) Privacy Impact Assessments (PIA)

 New Code of Practice on PIAs launched in February 2014.  May become obligatory for all organisations to have a Privacy Impact Assessment.

Comments:

 Ian Pattison (OA) raised the issue of local authorities selling electoral registers. Ken stated that changes are underway in terms of publishing a limited electoral roll. Spam is covered by the Privacy and Electronic Communications Regulations (PECR). Work is also in progress internationally to prevent spam/regulate spam. There are a limited number of offences and limited enforcement powers under the DPA in this regard.  Ros Foster from Browne Jacobson solicitors raised the issue of data sharing between public sector organisations for health/safeguarding reasons. Ros asked where PIAs sit with these type of agreements. Ken stated that PIAs will cover all data handling whereas data sharing agreements are specific. There is no right or wrong process.  Marie Anderson (NIO) asked if the ICO are considering changing their guidance to reflect the Edem judgment. Will there be a move away from Durant? Ken stated that there has been no indication that the ICO will change its guidance.

Human Rights

 University of Warwick undertaking research into Ombudsmen / human rights;  Marie Anderson (NIO) discussed the current human rights project between the NIO and the Human Rights Commission in Northern Ireland. A manual has been developed between the organisations to deal with complaints that raise issue relating to human rights. Where human rights are involved, NIO investigators will reference the FREDA values. NIO Investigators will not make an assertion that an article of the ECHR has been breached. The manual will be published shortly along with a possible e-learning tool.  Anne Harding from the Parliamentary and Health Service Ombudsman (PHSO) stated that PHSO make findings as to whether human rights issues have been considered.  Ian Pattison (OA) indicated that the Equality and Diversity Group which is chaired LeO are looking for new members. The next meeting will be held in April.

Members’ jurisprudence

 LeO – (Freda Sharkey) there have been challenges to the process used by LeO. Processes should be quick and informal as stated in governing legislation. However the legal profession has pushed for an adversarial process. A recent interesting case is Rosemary v Office of Legal Complaints (Crawford scheme) – very recent judgment relating to public access schemes (i.e. barristers working with clients directly);  Eric Burger v Office of the Independent Adjudicator for Higher Education – (Imran Abrahams) the court will look at ombudsmen in more general terms than a judge;  JR55 v Northern Ireland Ombudsman – (Marie Anderson) NIO in capacity as the Northern Ireland Commissioner for Complaints made a recommendation of financial redress following an investigation against a GP. GP indicated non-compliance and NIO raised possibility of making a special report to the Northern Ireland Assembly to highlight this refusal. GP argues that NIO does not have power to make recommendations of financial redress nor to produce a special report. NIO won the case at first instance but lost by majority in the Court of Appeal and are seeking to appeal to the Supreme Court. Court of Appeal stated that if the power to make a recommendation of financial redress does exist, the NIO did not give proper reasons for doing so in the present case and the amount was disproportionate. Court of Appeal judged that the statutory bar on disclosure of information in the Ombudsman’s legislation prevents a special report from being issued. NIO felt that the court’s decision was inconsistent with case law;  NIO case – (Marie Louise Lowry, Elliott Duffy Garrett Solicitors) litigant in person challenged findings of NIO. NIO successful at first instance and subsequent appeal to the Court of Appeal. Litigant attempted to seek leave of the Supreme Court but this has been refused.  Armagh District Council v Northern Ireland Commissioner for Complaints (NIO) – (Marie Louise Lowry, Elliott Duffy Garrett Solicitors) two judicial review actions have been initiated against the NIO in respect of this case. One focuses on the jurisdiction of the NIO to accept a complaint from a group of GPs. The Council has argued that GPs are unable to complain to the NIO because their source of funding is from the public purse – NIO has concerns about the future impact upon 'groups' bringing a complaint to his Office as a result of this case. The NIO won the case at first instance and this was appealed to the Court of Appeal in February. Judgment is awaited. The second judicial review challenge lodged by the Council centres on the substantive issues in the Ombudsman’s investigation of the complaint. This case will be heard at the beginning of June.  LGO case – (Emma Dellow-Perry, LGO and Tony Child, Browne Jacobson) party litigant did not attend court and judge effectively proceeded to make the case on litigant’s behalf, judgment remains outstanding;  LGO case – (Ros Foster, Browne Jacobson) complainant argues that the LGO failed to make reasonable adjustments by not offering a face to face meeting,. The LGO has since offered a meeting but the complainant is pursuing their case via the court. Ros to provide an update at the next meeting;  McCourt (Ombudsman for Defence Forces in Ireland) – (Ian Pattison) challenge to the appointment of Ombudsman. Case not upheld as no objection to retired member of the defence forces taking up the appointment (not excluded in the legislation);  Pensions Ombudsman – (Peter Whiteley) judicial review regarding fire fighters’ annuity rates. The Ombudsman felt the issue complained of had come from an administrative function but the Government Actuary’s Department (GAD) challenged this. GAD lost at judicial review court and Court of Appeal. Supreme Court proceedings commenced but GAD withdrew. Complaints from fire fighters to the Ombudsman had to be halted in the interim. In another case, a litigant in person tried to take a judicial review action against the Ombudsman when the Ombudsman had not actually made a decision.

Marie Anderson (NIO) asked members to send cases to Andrea McIlroy (NIO) to circulate.

Legal database

Legal database not yet ready. Members to provide cases in the format of citation / key words / couple of lines summary. Concerns raised about converting old cases into this format – fine for new cases going forward – may be that old cases only have a reference (may have old / new section of database, including BAILII reference). New cases to be sent to Andrea.

Ian Pattison – OA matters

 EU ADR directive to be implemented next year (in England & Wales);

- All members to have ADR mechanism in place for anyone buying goods & services; - Contains opt-out clause; - BIS consultation produced recently, have until June to respond – what are members looking for over the next five to ten years; - Aim will be to ‘fill gaps’ as opposed to replacing what is already there; - Directive lays down eight criteria for entities (akin to OA criteria for offices, but goes further); and - Need to work out how this will fit in with current ombudsmen (could there be different standards between public / private sectors?). - Consultation process with all members which will conclude in time for May annual meeting. May lead to resolutions to look at OA going forward (e.g. should governance / membership change);  OA Annual General Meeting to be held on 15 and 16 May 2014 in Manchester;  OA Newsletter became electronic May 2013; decision has been made to replace it with a blog. However this has been put on hold, following Grainne Byrne’s departure. An ‘emergency’ newsletter will be produced before the AGM in May;  Ian retiring at end of June. OA currently advertising for an Interim Secretary for six months (may be a secondment opportunity) as the OA are currently deciding on the form of the role of secretary for the future and  Marie Anderson (NIO) thanked Ian for his significant contribution to the OA and Legal Interest Group over his nine years with the organisation.

Open Forum

 Freda Sharkey (LeO) raised the issue of privacy issue when using the ‘cloud’. Freda had sent a prior email to members seeking information on members’ experiences as there is no clear framework for performance level standards (Cabinet guidance not especially helpful). Concern is that privacy could inadvertently be risked and so looking for thoughts / problems experienced / maybe template SLAs;

- Marie Anderson (NIO) responded to say NIO has a very detailed SLA with its IT providers but this wouldn’t be in the context of the ‘cloud’.

 Date / location of next meeting – to be held by FOS in October who have volunteered to host, details to follow; and  Marie Anderson (NIO) thanked Val Malloch and SPSO for hosting meeting.