Written evidence from the Public Services Ombudsman for Wales (PSOW) (WW10)

1. Background

1.1 My role as Public Services Ombudsman for Wales (PSOW) is to investigate complaints from members of the public that they have suffered an injustice as a consequence of maladministration or a service failure from a public body in Wales. I also investigate allegations that members of local authorities in Wales have broken their Code of Conduct.

1.2 Given the nature of my position, it would not be appropriate for me to comment on the broader aspects of the existing constitutional settlement. However, I do wish to make some brief observations on the current arrangements from the perspective of the Ombudsman, especially insofar as they impact upon those wishing to complain about public services in Wales.

2. Devolution and the PSOW's jurisdiction

2.1 My powers emanate from the Public Services Ombudsman (Wales) Act 2005. This lists the bodies in my jurisdiction at Schedule 2 of the Act which can be amended by Welsh Ministers.

2.2 Currently, there is no process for consultation where framework powers may have an impact on the jurisdiction of the Public Services Ombudsman for Wales. The existing arrangements for the transfer of legislative power to the Assembly incrementally will not generally lead to pressure for changes to Schedule 2 but there is the potential that matters so transferred may lead to requirements for extensions to my jurisdiction which do not take place in a timely fashion or which in the worst case are not identified at the time of transfer, thus potentially denying complainants an opportunity to complain where a body had not transferred to my jurisdiction but had ceased to be in the jurisdiction of the Parliamentary or other Ombudsman.

2.3 Another point I would wish to make relates to the situation where legislation is being developed on an England only basis, which has an impact on the jurisdiction of Ombudsmen in England and a lack of early consideration of whether framework powers should enable equivalent changes to happen in Wales. There have been recent examples of this. First, where people in England are now able to complain to the Local Government Ombudsman about privately purchased care services made by users, their family or others affected by the actions of a regulated adult care provider, but people in Wales have no similar right to complain to me. A second example is that people in England are now able to complain to the Ombudsman about the management of schools but where no provision has been made in the legislation to enable the Welsh Assembly Government to introduce similar arrangements in Wales. Therefore, people in Wales have no further recourse for their complaints beyond the Boards of Governors of schools.

3. Other legislative issues impacting on the work of the PSOW

3.1 Another concern I have lies in the area of UK wide legislation which impacts on Ombudsman schemes. Experience to date suggests that consultation with 'devolved Ombudsmen' takes place much later in the day. The Equalities Bill is an example of this where there are specific issues that affect all Ombudsman and yet early consultation was confined to England.

3.2 There are other anomalies that emerge over time, such as in respect of the Code of Conduct for members of Police Authorities. First, they have to abide by the English Code of Conduct and yet this is enforced by the Public Services Ombudsman for Wales. Secondly, councillors have the complexity and confusion of having to have regard to two separate Codes - the Code that applies to Wales when acting in their capacity as a county councillor; and then the English Code when acting in their capacity as a member of a police authority.

4. Legislative issues identified during PSOW investigations

4.1 Another point I would wish to make relates to clarity regarding the case for changes to legislation. On occasions, in investigating a complaint, my staff will find evidence of apparent injustice which has not resulted from maladministration or service failure on the part of a listed authority but rather has occurred even though the listed body has complied with the requirements of the relevant legislation.

4.2 Clearly, I have no power to act in such situations, nor would it be appropriate for me to do so. However, I do have the option of informally drawing such issues to the attention of the appropriate individuals to enable them to consider whether legislative change may be appropriate. In a situation where responsibility for service provision rests in Wales but responsibility for legislation remains with the UK Parliament, the ability to usefully engage in such dialogue is more complex. In a circumstance where responsibility is devolved incrementally, it can be more difficult to identify when and where case for change might usefully be made.

4.3 Examples of areas where legislative changes might be required which have been identified through our caseload include continuing health care and residential care, where major differences in outcome between cases with modest differences in service users' needs create considerable dissatisfaction amongst complainants even where, as is often the case, no maladministration has occurred. Other examples include planning legislation where the system at the moment can be seen to provide decisions more favourable to applicants who do not apply in the first instance, but are able to have approval for retrospective applications, than for people who follow the process correctly.

I trust these points are of assistance and would be happy to explore them further with the Committee if this were desired.

January 2010