Written evidence from Local Government & Social Care Ombudsman (HRO0002)

Dear Ms Harman

Thank you for the opportunity to contribute the current inquiry into establishing a Human Rights Ombudsman. Please find our response to Committee’s questions below. We are happy to provide any additional clarification and evidence that will assist the inquiry.

About the Ombudsman

The Local Government & Social Care Ombudsman (LGSCO) is the statutory body for complaints about all local councils and all CQC registered adult care providers in England. It is a free service. Our role is to investigate complaints in a fair and independent way – we do not take sides.

We look into the circumstances of an individual complaint and make judgements on whether the person affected has suffered injustice. We then make recommendations for improvement.

These recommendations can be at an individual level and are designed to put the person affected back into the situation they would have been in had they not suffered the injustice. We also make recommendations for overall service improvements. Although we don’t have formal enforcement powers, we have very high compliance with our recommendations from the bodies in our jurisdiction; our compliance rate is consistently over 99.5%.

We also have a role in improving services as a whole and do this by sharing the learning from our complaints through our thematic reports and guidance

Should there be a Human Rights Ombudsperson? If so, what powers and resources would the ombudsperson need to address the challenges people face in enforcing their rights out of court?

We consider that effective and accessible ombudsman schemes play a key role in safeguarding and promoting human rights. Ombudsman schemes are uniquely placed to provide redress when individual’s rights are neglected, and use the lessons learned from complaints to drive improvements to public services.

We welcome the objectives of the JCHR to promote the role of human rights in the Ombudsman sector. However, we do not believe it is necessary to create a new Ombudsman service to achieve these aims. Our reasons for this are below:

The current Ombudsman framework

We consider the existing Ombudsman framework in the UK provides an effective means for members of the public to seek redress on rights-based issues, outside of the court system:

• As with other UK public sector Ombudsman schemes, the LGSCO already has a remit to assess whether organisations have taken account of human rights as part of their policies, decision making, service delivery, and complaint handling. Where our investigations find individuals’ rights have been neglected, we will say so explicitly in our decisions, almost all of which are published online.

• We equip our casework staff to take a consistent and proportionate rights-based approach to investigations, through providing guidance and regular training on the Human Rights Act and Equalities Act, which we have developed in collaboration with the EHRC.

• We are developing technical solutions to capture qualitative and quantitative data on complaints which relate to rights-based issues, so we can highlight the volumes and types of cases that come to our attention, and the outcomes we achieve. In 2021/22 we published decisions on 158 detailed investigations which touched on rights-based issues. Some examples of recent significant decisions which touch on these issues can be seen here:

• Kent couple lost valuable time together because of council errors

• Rotherham family prevented from spending quality time together in man’s final days

• Family of seven left to live in one bedroom flat by Bromley council

• We also promote learning from our investigations to help councils, and other local services, meet their legal duties to ensure everyone has an equal opportunity to access their services. We recently published a thematic report to highlight common issues we see around how councils arrange reasonable adjustments for people with disabilities.

Risks in creating a new scheme

We consider there are risks in creating a standalone human rights ombudsman scheme, existing alongside current public sector ombudsman schemes. We believe such a scheme would cause confusion, complexity, and fragmentation in an already crowded redress system, and not represent an efficient use of public resource. Our specific concerns are that:

• Members of public would lack clarity about which ombudsman to approach with a complaint. This would particularly be the case where human rights are one aspect of a wider complaint of maladministration. In practice, it would be impractical, resource intensive, and time-consuming to hive-off human-rights issues to a new ombudsman scheme.

• Organisations would lack clarity about where to signpost complainants following completion of the local complaints process. This may cause particular issues in the adult care sector, where signposting to ombudsman schemes is currently poor.

• It would create added complexity in England, where separate Ombudsman schemes already exist for central government departments, the NHS, local government and care services, and social housing.

• It might not be apparent to members of the public that their complaint touches on rights-based issues. Our experience shows these issues often do not emerge until a detailed investigation takes place by an ombudsman. Conversely, members of the public might erroneously approach a human rights ombudsman for matters which do not relate to convention rights. It represents a better use of resources to maintain the current system of sector-based ombudsman schemes, that use their expertise to assess whether human rights are connected to a complaint.

• It is likely that a separate human rights ombudsman would duplicate work already carried out by existing Ombudsman schemes, and not represent an efficient use of public resources.

Scope to improve current system

We believe a more cost-effective and streamlined approach would be to improve the current ombudsman framework through strengthening our legal powers. This could include:

• Powers for the LGSCO to self-initiate investigations, without requiring a complaint from members of the public. This would help in circumstances where there is apparent evidence of human rights neglect, but where individuals or groups are disempowered to pursue complaints. This power is already a uncontroversial feature of the Public Sector Ombudsman for Wales, where it has utilised the power to highlight systemic maladministration in homelessness support services.

• Powers to recommend remedies for other people/groups of people affected by faults. While this is already a feature of LGSCO’s scheme, it is uncommon to other UK Ombudsman schemes. We have utilised the power to provide remedies for others affected by systemic failures, such as a council failing to manage deprivation of liberty safeguard applications for thousands of local residents.

• Statutory signposting to the LGSCO for all adult social care providers in England, to help raise awareness of the Ombudsman’s role, where our visibility is currently low.

• Additional resource to raise the profile of LGSCO, and to inform the public about the respective roles of ombudsman, courts and regulators.

• Expanding the jurisdiction of the LGSCO so that parents, pupils, and carers have the right to an independent LGSCO investigation of complaints that have not been adequately resolved by their schools. This would introduce an independent redress mechanism for the education system in England.

• Lastly, and more broadly, we consider wholesale reform of Ombudsman schemes in England to create a single Public Sector Ombudsman would provide clearer lines of accountability and redress for the public. It would negate situations where members of public have to pursue separate complaints that span multiple ombudsman services, such as health, housing and adult social care. This move would bring England in line with the devolved nations, which operate single public-sector Ombudsman schemes.

What powers would the ombudsperson need to ensure they provide an effective remedy, as required by Article 13 of the European Convention on Human Rights, for individuals trying to enforce their rights?

The LGSCO consistently achieves over 99% compliance with non-binding recommendations, and we can take effective follow-up actions in those cases where we see non-compliance with recommendations. 

We do not think the LGSCO needs extra powers of enforcement, particularly where that might conflict with the sovereignty of local democracy. Our model works by listening to both parties and investigating robustly. Our decisions have force because they represent a credible and compelling analysis of the facts. And we achieve effective outcomes by operating in partnership with others as part of a wider system of democratic accountability. We will use the media to publicly highlight stories about the rare exceptions when organisations do not comply and let others judge those organisations and their leaders. And we can escalate those isolated cases to regulators, locally elected members, or Parliament to take further action.

When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. We focus on restoring services that have been denied and recommending practical steps to put things right. Where that is not possible, we will try to think of creative remedies that acknowledge the impact of faults. When we recommend a payment, it is often a modest, symbolic amount. It is not our role to assess economic losses or award compensation.

When assessing complaints, we will look closely at the remedy sought by complainants. In cases where members of the public solely seek a determinative and binding judgment on whether their rights have been breached, then it is likely an ombudsman will decide the courts are better placed to consider the matter.

How would the Human Rights Ombudsperson interact with existing mechanisms such as ombudspersons and Commissioners, including in the devolved nations?

There is already well established and effective multi-lateral collaboration between UK ombudsman schemes and wider regulatory sector, including:

• An public sector ombudsman group network, that includes public sector ombudsman from the devolved nations.

• Well-established processes to share intelligence between ombudsman and the wider regulatory sector, and partnership between LGSCO and EHRC on areas of shared interest.

• An effective joint-working team between the LGSCO and PHSO in England to collaboratively investigate complaints that span health and social care jurisdictions.

How would the Human Rights Ombudsperson interact with other bodies tasked with upholding human rights, including the Equality and Human Rights Commission?

As noted above, we consider there is already effective cross collaboration between UK ombudsman schemes, and the wider regulatory sector. With regards the LGSCO, we have worked closely with the EHRC to ensure:

• EHRC standards of best practice are embedded in LGSCO guidance and training

• Our complaints data is used to inform EHRC inquiries, such as its ongoing inquiry into adult social care assessments and care planning

• We have a common understanding of the role and remit of our respective organisations.

• We provide feedback on business planning and projects of shared interests

We consider the current system could be strengthened through promoting better public understanding of the respective and complementary roles of ombudsman schemes, the EHRC, and the courts, so members of public are better informed about the most appropriate avenue for their complaints.

Are there other steps that should be taken alongside introducing a Human Rights Ombudsperson to ensure people can effectively enforce their rights out of court?

For the reasons given above, we consider that specific legislative improvements or wider reform to the existing ombudsman framework in the UK would better support the aims of the JCHR’s proposals, as opposed to creating a distinct human rights ombudsman service.

We hope this evidence and information will be of use to the inquiry. We also look forward to providing oral evidence to the committee next week to expand on any areas of interest to the Committee.

Yours sincerely,

Mr Michael King

Local Government and Social Care Ombudsman for England

Chair, Commission for Local Administration in England

21/06/2022