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Y Pwyllgor Cydraddoldeb, Llywodraeth Leol a Chymunedau

Equality, Local Government and Communities Committee

29/11/2017

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Gareth Bennett AM
Janet Finch-Saunders AM
Jenny Rathbone AM
John Griffiths AM Cadeirydd y Pwyllgor
Committee Chair
Mick Antoniw AM
Rhianon Passmore AM
Sian Gwenllian AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Chris Vinestock Y Prif Swyddog Gweithredu a’r Cyfarwyddwr Ymchwiliadau, Ombwdsmon Gwasanaethau Cyhoeddus Cymru
Chief Operating Officer and Director of Investigations, Public Services Ombudsman for Wales
Gareth Howells Y Gwasanaethau Cyfreithiol, Comisiwn y Cynulliad
Legal Services, Assembly Commission
Joanne McCarthy Y Gwasanaeth Ymchwil, Comisiwn y Cynulliad
Research Service, Assembly Commission
Katrin Shaw Cyfarwyddwr Polisi, Cyfreithiol a Llywodraethu, Ombwdsmon Gwasanaethau Cyhoeddus Cymru
Director of Policy, Legal and Governance, Public Services Ombudsman for Wales
Nick Bennett Ombwdsmon Gwasanaethau Cyhoeddus Cymru
Public Services Ombudsman for Wales
Simon Thomas AM Yr Aelod sy’n Gyfrifol am y Bil
Member in Charge of the Bill

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Chloe Davies Dirprwy Glerc
Deputy Clerk
Gareth David Thomas Ymchwilydd
Researcher
Naomi Stocks Clerc
Clerk
Osian Bowyer Ymchwilydd
Researcher
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle y mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 09:16.

The meeting began at 09:16.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Good morning, everyone. May I welcome you all to this meeting of the Equality, Local Government and Communities Committee? Item 1 on our agenda today is introductions, apologies, substitutions and declarations of interest. We've received one apology from Bethan Jenkins. Joyce Watson is no longer a member of our committee, and her place has been taken my Mick Antoniw. Mick is not with us yet but he will be joining us later.

I'd like to take this opportunity to thank Joyce Watson for her contribution to the committee's work, which I'm sure all committee members would join me in doing.

2. Bil Ombwdsmon Gwasanaethau Cyhoeddus (Cymru): sesiwn dystiolaeth 1
2. Public Services Ombudsman (Wales) Bill: evidence session 1

Item 2 on our agenda today is the Public Services Ombudsman (Wales) Bill, and our first evidence session. So, today will mark the beginning of our scrutiny of this Bill. We will be taking evidence from Simon Thomas, Chair of the Finance Committee and Member in charge of the Bill.

By way of background, the Bill was introduced to the Assembly by the Finance Committee on 4 October this year, and the Business Committee then referred the Bill to this committee for Stage 1 scrutiny, with a reporting deadline of 9 March.

We launched a public consultation on the Bill on 11 October and we will be taking oral evidence from a range of stakeholders over the weeks to come to inform this work.

So, I'd very much like to welcome this morning Simon Thomas, as I said, Member in charge of the Bill, Gareth Howells of legal services in the Assembly Commission, and Joanne McCarthy of the Research Service in the Assembly Commission. 

Bore da i bawb a chroeso.

Good morning to everyone and welcome.

If you're content, Simon, we might move straight to questions. Okay, thanks very much for that. Perhaps, then, I could begin with the first question, on the general principles of the Bill. I wonder, Simon, whether you might expand a little on the purpose and intended effect of this proposed legislation.

Diolch yn fawr, Gadeirydd. Os caf fi wneud hynny yn Gymraeg i ddechrau drwy jest atgoffa'r pwyllgor fod gyda ni ddeddfwriaeth presennol—Deddf 2005—sy'n ymwneud â sefydlu pwerau'r ombwdsmon gwasanaethau cyhoeddus. Er bod y ddeddfwriaeth ar y pryd yn cael ei gweld fel deddfwriaeth enghreifftiol o'r radd flaenaf, erbyn hyn mae 10 mlynedd o ddatblygiad ym maes ombwdsmon wedi digwydd, yn enwedig drwy Ewrop, ac mae yna nifer o lefydd lle rydym ni'n teimlo bod angen cryfhau rôl yr ombwdsmon i wneud yn siŵr ein bod ni'n gwneud yn iawn gyda phobl—dinasyddion sydd wedi wynebu camwedd—a gwneud yn siŵr ein bod ni'n gwneud yn iawn gyda dinasyddion sydd yn chwilio am gyfiawnder wrth ddelio â chyrff cyhoeddus a'u bod nhw felly'n cael iawndal, yn foesol o leiaf, am y cam hwnnw.

Ac yn benodol, mae'n ceisio, felly, hyrwyddo hawliau dinasyddion tuag at wasanaethau cyhoeddus. Rydym ni'n ceisio gwneud yn siŵr ei bod yn saff ar gyfer y dyfodol a'i bod yn ddigon hyblyg fel darn o ddeddfwriaeth ar gyfer datblygiadau posib. Ac mewn pedwar maes yn benodol, os caf i jest eu crybwyll nhw—ac mae'n siŵr bod gyda chi gwestiynau, ond os caf i jest crybwyll beth yw'r pedwar maes: gwneud yn siŵr bod yr ombwdsmon yn gallu derbyn cwynion ar lafar, nid jest cwynion sydd wedi cael eu hysgrifennu'n ffurfiol at yr ombwdsmon—rwy'n credu yn oes y cyfryngau torfol a'r cyfryngau cymdeithasol fod hynny yn bwysig i ni; rhoi'r hawl i'r ombwdsmon wneud ymchwiliadau ar ei liwt ei hunan, hynny yw edrych ar batrwm mewn gwasanaethau cyhoeddus yn hytrach nag aros am gŵyn a mentro ar ei liwt ei hunan i wneud ymchwiliad; rhyw fath o estyn y maes iechyd preifat, lle mae'r dinesydd wedi cael triniaeth iechyd preifat fel rhan o'r llwybr triniaeth iechyd sy'n cynnwys y gwasanaeth iechyd cyhoeddus; a gwneud yn siŵr bod yna safonau ar gyfer y ffordd mae cwynion yn cael eu delio gyda nhw a'u hateb y tu mewn i wasanaethau cyhoeddus—so codi, os liciwch chi, yr ymwybyddiaeth o'r gyfundrefn ar gyfer delio gyda chwynion a gwneud yn siŵr bod yna gysondeb ar draws y sector cyhoeddus yng Nghymru.  

Thank you very much, Chair. If I may do that through the medium of Welsh, to begin with, by just reminding the committee that we have current legislation—the 2005 Act—with regard to establishing the office of the public services ombudsman and the powers thereof. Even though the legislation at the time was seen as a model of first-rate legislation, there have been 10 years of development in the field of the ombudsman's work, especially throughout Europe, and there are a number of areas where we feel that we need to strengthen the ombudsman's role to ensure that we do offer redress to citizens—citizens who have experienced an injustice—and ensure that we offer redress to those who are seeking justice in dealing with public bodies and that they are therefore compensated, at least morally, for their experiences. 

And it tries to promote, specifically, the rights of citizens with regard to public services. We're trying to ensure that it's secure for the future and that it's sufficiently flexible as legislation for future development. And in four specific areas, if I can just mention them—I'm sure that you have questions on those, but if I just mention them: ensuring that the ombudsman can receive oral complaints, not just complaints that have been written formally—I think that in the era of social media that's important to us; the right for the ombudsman to undertake own-initiative investigations, that is to look for a pattern in public services rather than awaiting a complaint, and that he can undertake his own initiative investigations; some kind of extension into private healthcare, where the citizen has received private healthcare as part of a healthcare pathway that includes public health services; and to ensure that there are standards for the way that complaints are dealt with and responded to within public services—so raising awareness of the regime with regard to dealing with complaints and to ensure that there's consistency across the public sector in Wales. 

09:20

Okay. Diolch yn fawr, Simon. As you say, we will be moving on to the matters that you've touched upon in your opening remarks in a little more detail. Perhaps I could continue, then, by moving on to those powers to initiate investigations of the ombudsman's own accord and, as you say, compared with the 2005 Act, why it's felt necessary to include those own-initiative powers within this Bill, and what purposes they would be used for.    

This is a part of the Bill where we hope to bring the current legislation up to the best international standards, if you like, so own-initiative powers are quite common these days in most ombudsmen who operate. Certainly, we looked at the Council of Europe as the area where ombudsmen share practice and skills. In Ireland, for example, own-initiative powers have been established for something like 30 years, I think. So, it was a recommendation made in the previous Assembly; the previous ombudsman, Peter Tyndall, suggested that this would be an appropriate extension of the ombudsman's powers. And we would imagine that the own-initiative powers would enable the ombudsman to either react in a situation where he or she believes there is a systematic failure amongst a number of similar organisations, so they might feel it might be a problem that's common to more than one organisation, or where he thinks there might be something that could be highlighted by an own-initiative inquiry that could then be used as a template for improvement amongst public bodies in Wales. 

I think one example that—. I think, in fact, you're having the ombudsman for scrutiny on his annual report later on, and one of the things that you might see there is that he issued, I think it was, six public interest reports in the last year, three of which were to do with one particular health board. And that's a situation where you might think that the ombudsman might, in those circumstances, rather than take that approach, use these powers to do a wider own-initiative report about whatever problems he perceives in that health board in dealing with complaints and with system failures. 

So, it's about strengthening—although it's not directly related to the individual making the complaint, it's about strengthening the robustness of the system to deal with complaints and ensuring that we adhere to the highest standards of public services in Wales. And I think those are scenarios where we would imagine that an own-initiative might occur. 

Okay. Do you think it's necessary to have some sort of restriction, some sort of control on the exercise of those powers by the ombudsman, and if so, do you think the Bill as drafted is sufficient in that respect? 

I think people would be concerned that we established in 2005 an ombudsman whose main task was to respond to individual complaints if, in turn, with these new powers the ombudsman could develop into a different sort of organisation, if you like. And I think that we were keen in the Finance Committee to maintain the focus on his—currently him—primary role of dealing with complaints from members of the public and being the citizen's voice within public services. 

So, we have actually amended this Bill from the Bill that was considered in the previous Assembly to put on the face of the Bill some tests for his use of these own-initiative powers. So, the short answer to your question is that, yes, there need to be some tests there. We need to be reassured that the ombudsman isn't enabled to go after hares, if you like, and just follow his own interests, but is rooted to what the public interest is in all this. So, on the face of the Bill, he can only take these own-initiative inquiries if it is in the public interest, and there are other tests there for him as well around how an own-initiative inquiry could be run. So, I think we are very keen to ensure that this is something that is contained, but is also an additional tool in his armoury.

09:25

Before I bring in Rhianon Passmore, Simon, could you say a little bit more about those tests, then? Because I think this might be an area of considerable interest as we take further evidence on the proposed Bill.

Yes, and the safeguards that we have written in there are, as I say, about public interest, about ensuring that it's really to deal with vulnerable people. So, he has to pass, in effect, two tests: he has to establish that there's a public interest, and then he has to use one of two other tests, one of which is that there are systematic failures in public services that need examination, or the second, which might be that somebody who's a vulnerable person or has protected characteristics, for example, is also likely to be affected by the situation. So, at the moment, on the face of the Bill, there's this duality of tests: a firm test of public interest, and then an additional test of one of at least two additional tests that he or she has to be convinced about, and these are the powers that we are suggesting could be extended to the ombudsman.

Now, we have also taken evidence, as ourselves, as a committee, from the ombudsman, in which he stated that he feels that this would be several own-initiative inquiries a year, rather than scores or hundreds, and, certainly, we want to give the clear message in the Bill that the Bill is still rooted in the individual's approach to the ombudsman and not a blank cheque for him to go off and change the nature of his role. This is an additional—as I say, an additional—tool that we think is appropriate.

Thank you. With regard to the comments that you've just made, could you just extrapolate a little bit more in terms of those tests? Because, in terms of protected characteristics and the other comment that you made, it doesn't really mean a lot. So, could you outline a little bit more and give us a little bit more meat on the bones as to those tests and terms? You've mentioned running after hares and rabbits, potentially.

In order to undertake an own-initiative inquiry, he'd have to make a proposal. So, he'd have to publish what his proposed own-initiative inquiry was. He would have to consult with the bodies affected by the own-initiative inquiry. He would have to make it clear that the tests that I've just mentioned are on the face of the Bill have been met. That means that he'd have to explain, in each and every case, what it is that he felt was either in the public interest or affected systematic failure or, as I said, vulnerable people. So, in that case, I think that you'd see, in each and every time, a setting out of an explanation of why this was done. There's nothing further on the face of the Bill, but I think that the fact that we've put tests on the face of the Bill is intended, at least, to give that assurance to people that this isn't, as I said, a blank cheque to be changing the nature of the ombudsman's work, but, rather, to have an additional set of tools that he can use in association with most of the work that is done by the ombudsman now, which is in the field of the 2005 Act. This is a new power; I accept that, but I think those steps ensure that there's accountability and there's also transparency as to why an ombudsman would have taken the decision to do an own-initiative report.

If I may, Chair, with regard to the very nature of this Bill, and the very nature of the role, the proposed new role, who polices the ombudsman?

Well, the ombudsman can be complained about himself or herself, but the Bill, as introduced, does not change the current regulations around the ombudsman. So, it doesn't make him less policeable than he has been in the past. That's all I would add there.

Or more. Can I just add, as well, an important point? Because I think that Rhianon Passmore may be pressing on this as well—it's about the use of resources, and policing the ombudsman isn't just about what powers he is using, but what resources he's allocating to the different powers that he has. That is done, of course, by the Assembly itself through the Finance Committee and through a vote in the Assembly. So, there are quite—they could be said to be nuclear options, but there are quite strong back-stop options on that.

09:30

Onid oes yna gyrff eraill allan yna a fuasai'n gallu gwneud rhai o'r pwerau newydd yma y mae'r ombwdsmon yn eu deisyfu? Ai rhyw ffordd o ymestyn ymerodraeth yr ombwdsmon ydy'r Bil yma, mewn gwirionedd?

Are there any other bodies out there that could undertake some of these new powers that the ombudsman is seeking? Is it a way of extending the jurisdiction or the empire of the ombudsman? Is that what this Bill is doing?

Wel, mae'n ymestyn ei bwerau fe—nid oes dim dwywaith am hynny. Rydw i'n gobeithio nad yw e'n rhoi unrhyw gysyniad bod yna deyrnas yn cael ei hadeiladu neu ei chreu yn fan hyn. Oes, wrth gwrs, mae yna nifer o gyrff sydd yn gwneud gwaith ar ran y dinesydd yng Nghymru bellach. Y comisiynwyr ydy'r rhai mwyaf amlwg yn y maes yna, ac mae gyda chi Archwilydd Cyffredinol Cymru hefyd, sydd yn gwneud gwaith—nid i unigolion, ond gwaith ar draws sectorau—yn dangos arfer da ac ati.

Mae bron pob dim sydd yn y Bil sydd ger eich bron yn cael ei ailddatgan o'r Bil presennol, felly nid oes dim byd newydd yn y ffordd y mae'r ombwdsmon yn ymwneud â'r comisiynwyr eraill yn y Bil hwn. A dweud y gwir, mae'r Bil yn diweddaru'r sefyllfa, achos am y tro cyntaf rydym ni'n ychwanegu comisiynydd llesiant cenedlaethau'r dyfodol i'r Bil yma, jest i'w wneud yn glir ac yn gyson, ac mae hynny'n rhywbeth a oedd wedi cael ei golli dwy flynedd yn ôl, a dweud y gwir. So, ar hyn o bryd mae'r ombwdsmon yn gorfod gweithio drwy gytundeb gyda'r comisiynwyr eraill a chydag Archwilydd Cyffredinol Cymru. Mae'r cytundeb yna yn seiliedig ar protocols a byddem ni'n disgwyl i hynny barhau. Nid yw'r Bil wedi newid hynny. A dweud y gwir, mae yna ofyniad yn y Bil i'r ombwdsmon gydweithio â chomisiynwyr eraill, ac mae'n rhestru'r comisiynwyr hynny er mwyn gwneud yn siŵr ac yn glir bod hynny yn ddisgwyliedig gan yr ombwdsmon. 

Well, it does extend his powers—there's no doubt about that. I hope it doesn't give any ideas that there is an empire being built or created here. Yes, of course, there are a number of bodies that are by now doing work on behalf of the citizen in Wales. The commissioners are the most obvious in that field, and you have the Auditor General for Wales as well, who does work—not for individuals, but work across sectors—that points to good practice and so on.

Almost everything in the Bill that is before you today is being restated from the current Bill, so there's nothing new in the way that the ombudsman deals with the other commissioners in this Bill. Truth be told, the Bill updates the situation, because for the first time we've added the commissioner for future generations to this Bill, just to make it clear and consistent, and that's something that was missed two years ago. So, at present, the ombudsman has to work through agreement with the other commissioners and with the Auditor General for Wales. That agreement is based on protocols and we would expect that arrangement to continue. The Bill doesn't change that, and there is a requirement in the Bill for the ombudsman to work with the commissioners, and it lists those commissioners to make it clear that that's an expectation of the ombudsman.

Okay. Just following on from those answers, Simon, what could commissioners, statutory advisers or the Auditor General for Wales do if they were to dispute a decision by the ombudsman as regards the relevance of their work to a particular matter that the ombudsman was investigating?

I would very much hope that we would never get to that situation because, as I said to Siân Gwenllian, the protocols and the obligation to consult is supposed to avoid a situation where we have a dispute between the ombudsman and another commissioner as to who's responsible for what. This Bill does not actually change the current arrangements in that regard. So, I invite the committee to consider whether the system has been working to date, and also to consider very clearly, of course, the different roles that the ombudsman and commissioners have.

It does put an obligation on the ombudsman to consult and inform the other regulators or operators in this area, if you like, and they can often jointly commission work—that's a possibility. They can work together, they can agree to work together—there's nothing that the Bill does that stops that and a more effective way of working. The ombudsman, for example, on the own-initiative side, has drawn our attention to the work of the older person's commissioner for Wales, around elder abuse and other issues in Wales, as something that, in the past, he wouldn't have been able to get directly involved in because he didn't have these own-initiative powers, as I mentioned. These sorts of areas are ones where we could see more creative and co-operative working, and I would certainly advocate co-operative working between the ombudsman and the other commissioners in Wales.

Yn sicr, nid ydy'r Bil yma yn newid y ffaith nad ydy'r ombwdsmon i fod i feirniadu comisiynwyr eraill.

Certainly, this Bill doesn't change the fact that the ombudsman is not supposed to criticise other commissioners.

Na, nid yw e'n newid hynny o gwbl, ac nid ydw i'n gwybod a oes gan Siân Gwenllian unrhyw achos penodol yn ei meddwl hi ar hyn o bryd, ond, os caf i ddweud, mae unrhyw beth mae'r ombwdsmon wedi'i ddweud yn ddiweddar ynglŷn â gwaith comisiynwyr eraill yn seiliedig ar y pwerau presennol. Nid yw'r Bil yma yn newid hynny, ac mae'r Bil yma'n gwbl niwtral o ran y pwerau hynny. Ac felly, pe bai unrhyw newid yn mynd i ddod yn y berthynas rhwng yr ombwdsmon a'r comisiynwyr eraill, mewn unrhyw faes arall, byddai hynny'n gorfod cael ei benderfynu drwy ddeddfwriaeth ar wahân, wedi'i llywio gan y Llywodraeth. Nid y Bil yma sydd yn gwneud hynny, neu hyd yn oed yn ceisio neu fynd yn agos at wneud hynny.

No, it doesn't change that at all, and I don't know whether Siân Gwenllian has any specific case in mind at present, but, if I may say, anything that the ombudsman has said recently with regard to the work of other commissioners is based on the current powers. This Bill doesn't change that, and this Bill is entirely neutral with regard to those powers. And so, if any change was going to come into the relationship between the ombudsman and the other commissioners, in any other area, then that would have to be decided by separate legislation put forward by the Government—not this Bill. This Bill doesn't even seek to go anywhere near that issue.

Although I guess it could be argued, Simon, that in enhancing and developing the powers of the ombudsman, that might change the equation in terms of the relationship between the ombudsman and the commissioners and the auditor general and other bodies. Would you accept that?

09:35

I think you have to bear in mind two things here. I accept the premise of the question, and I think that's a reasonable question to pose, because, as a result of this Bill, if the ombudsman were to use all the powers set out in the Bill in the most appropriate manner in the way that we as a committee, the Finance Committee, would expect him to do, there would be more salience to some of the ombudsman's work. I would imagine that some of these own-initiative reports might get a bit of publicity, for example. They might be quite important reports. They might say something that would possibly shake up the pigeon coop a little bit, and people might not be happy about that. So, there's an element of that around that.

But I would also remind the committee that there is a signal difference between the ombudsman and the other commissioners. All the other commissioners that are mentioned in this Bill, and with whom the ombudsman must have a duty to consult, are ultimately accountable to the Government. The ombudsman and the auditor general are accountable to the National Assembly. So, if you are going to be content with this Bill—amended in some form, possibly, but nevertheless the basic way this Bill is constructed—then what you're doing is strengthening the Assembly's own chosen ombudsman for public services in Wales. You're not strengthening the Government's commissioner side, you're strengthening the Assembly's ombudsman side.

So, if there is anything that emerges from that in terms of a greater salience to the ombudsman's role, and in terms of a greater understanding of the ombudsman's role as well, then that's something that, clearly, the Assembly, through this committee, has to be content with. But, if it is content with it, the Assembly knows also that it has an independent actor in this, I admit, rather crowded field of ombudsmen and commissioners and whatever. But if we can remind ourselves that the ombudsman was here first and the commissioners have come since.

It's also important to remember that the Bill doesn't actually greatly enhance the range of actual matters that can be investigated. So, the Bill doesn't create a sudden extra overlap with these other commissioners.

I think you've covered the checks and balances around own-initiative investigations. I'd like to explore further the proposed change to the permission required for investigating individual complaints. It seems entirely sensible that it should be possible to receive complaints by e-mail because that's often—. I think where the issues potentially could arise are around oral complaints. On the one hand, it's sensible because 25 per cent of the population is functionally illiterate but have no difficulty expressing their unhappiness verbally. But how are we going to avoid the problems where, if you like, the guardian or the relatives of the vulnerable person have one view and the person themself has a different view? That is where it seems to me—. Do you think we need to have a bit more detail on that in the Bill? Because that, in my experience, is where we often get contentious issues arising. 

Thank you for that. I think all of us as Assembly Members have been in positions like this. So, this is an area where we can have some common understanding of what the ombudsman deals with. So, if I could just go through the points you made—and I think they're very important ones.

First of all, this Bill is very much designed to strengthen the citizen's voice and access to justice, in effect. Not only are the figures you gave correct, I think, around functional literacy, but in fact we're worse off in Wales—something like 7 per cent worse off in Wales—than the average in the United Kingdom. So, that's the reality of what we've got to deal with, and all of us in surgeries have people who've forgotten their glasses when it comes to looking at anything. So, we know and deal with that in our own daily lives.

The way the ombudsman has to deal with oral complaints is set out on the face of the Bill, but not in detail, I accept that. So, you might take evidence over these sessions about how this might work. But there are two steps there, in essence. First of all, the ombudsman can't just take an oral complaint. He has to check with the person making the oral complaint that they want to pursue it and they want to take it forward. So, there is an obligation to verify, if you like, that. That may not be done in a written way; it may be done in the ombudsman preparing something and verifying that with the complainant. There is also an obligation for him to produce his own procedure for dealing with complaints and to publish that. And that's an obligation to publish, so he has to publish that. It has to be clear about how complaints would be dealt with. I would expect that to set out how he would deal with the situations that you've just posed to me. My own view is that it would be much too onerous to put a detailed complaints procedure on the face of the Bill. But the fact that there's an obligation to produce such a complaints procedure, and to make it public, I think, is where we've sought to try and address that issue.

The other thing, if I can just mention, is: it is conceivable, isn't it, that an ombudsman might receive several oral complaints from people who don't want to take it any further for sensitive reasons. In my own personal experience, social care has been one such area where families have concerns about how their relatives are being treated, possibly, but don't want to shake the boat, if it's the only care home they could find. There are all sorts of difficult situations that emerge there.

What the other powers in the Bill enable the ombudsman to do is: if he has been alerted by a number of oral complaints of an area of concern, he can then do an own-initiative investigation, which means that it avoids doing—. Sometimes, it's another way of dealing with the issue, particularly when people are in a very vulnerable situation, where they're not empowered enough to feel they can make a formal complaint. That's one of the problems that the ombudsman set out in his own evidence. For example, he's said of the oral complaints—he does get oral complaints, because people do make oral complaints—that he has to convert them into written complaints. And his evidence—I think you'll have seen it—states that about 50 per cent of them then do not get proceeded with. He has no way of dealing with those now. The Bill, as it's set out, gives him two ways of dealing with those: either to pursue a normal complaint and to ensure that it's done correctly, or to think, 'There's something going on here, I'll do my own-initiative review.'

09:40

I think that's helpful clarification. So, basically, you're saying that you don't think that this level of detail should be on the face of the Bill. But, clearly, it would either need to be in the explanatory memorandum or something produced by the public services ombudsman to clarify the rules of engagement.

There is certainly an obligation for him to produce that, and for that to be published. You would expect that he operates under the principles of good administrative law as well, in terms of the general obligation to consult about those, and so forth. But the obligation on the face of the Bill is to produce it and publicise it.

Okay. I think that's helpful. Could we just explore the reasons why we need to give the public services ombudsman powers to investigate matters relating to private health services? The previous ombudsman expressed some concern about the potential cost of this. At the moment, the numbers involved are very, very low. As you're the Finance Committee Chair, could you explore what you think the potential costs are likely to be? Because I see there's a note that the ombudsman can pursue costs in certain cases where he thinks somebody's being obstructive, but that obviously won't cover most complaints.

No, it won't. That's very much an in extremis situation. This is quite a complex area, and I think, quite rightly, it needs picking through by the committee and an examination, but I think it is important.

So, the powers to extend the ombudsman's powers to allow him to look at private healthcare are very tightly drawn. This is not a Bill that empowers the ombudsman to look at private healthcare in Wales—that's not the purpose of this Bill. And if it were, we wouldn't be talking about a public service ombudsman then, we'd be talking about a services ombudsman. We'd be talking about a completely different scenario, and that's not what we're proposing.

But there has been, in a limited number of cases—the ombudsman has mentioned something like six or seven a year—there have been cases where he has taken a complaint that originated in the NHS, has followed through that complaint on behalf of the complainant, and then, at some stage, the complainant has gone and got treatment in the private healthcare sector. We know from our own postbags, I'm sure, that that happens. And then, of course, having had the treatment in the private healthcare sector, the complainant comes back into the NHS and continues with his or her treatment. That's quite a common theme, and most of those work perfectly well and there's no problem with them.

But where a problem does arise—. The ombudsman has come across—and he's given us evidence of a case that took five and a half years to resolve—cases where, to understand what went wrong, he needs to be able to resolve the private bit of it, because it might be—well, it would be—a course of treatment—a hip operation is the obvious one that often occurs here—there'll be a course of treatment that is in the NHS and suddenly, the next morning, you're talking to the same consultant in the same hospital, but you're now, suddenly, private, and within three months, you're back again on the NHS. The completion of that complaints journey needs to be understood as a whole. At the moment, without these powers, the bit in the private sector is without his ability to investigate and take forward.

09:45

But it's a loophole, rather than an extension into the private healthcare sector.

Okay. What about the situation—? Most social care is delivered by private services—residential home care. So, where do they sit in the ombudsman's purview? Because, obviously, these are services generally commissioned by the local authority, but delivered by a private body. 

Where the ombudsman can take action under other parts of his current powers, which are just restated in this Bill, around a listed public body, which is, in effect, the commissioning body, then he already has those powers and will continue to have those powers, so it doesn't change that. This is a part that was inserted by the Social Services and Well-being (Wales) Act 2014, so the powers around social care and palliative care have been inserted there. It doesn't matter who is delivering them; if they are public services, then he can investigate them. Really, this particular part is where people opt out in order to take a private healthcare route and then come back into the NHS.

Could I just—? Because I didn't answer your question about costs—

I was just coming back to that. Well, let's take that now. Are you saying that, as a result of this, you don't think—? What do you think the likely increases in costs are going to be? Clearly, we'll be able to cover those who are being obstructive by getting them to pay through the court, but the general run of increase in the business that the ombudsman is conducting—what is likely to be the increased cost?

The costs are set out in the explanatory memorandum and they are low, according the ombudsman's own figures—less than £4,000 a year; I think it's £3,700 or something like that. That's to deal with several cases. In those circumstances, and, given that we've also given powers to levy a charge where there's obstruction, we didn't think, as the Finance Committee—even the Finance Committee wasn't convinced that this was a big enough sum to have some kind of complex levy system or some other way of raising costs, but that this was a small enough sum to be dealt with in the overall work of the ombudsman's envelope, if you like. So, we have not been persuaded, at this stage, that there needs to be a separate cost recovery regime for this narrow and tightly-drawn aspect of public health provision. There are also other avenues for people to complain when they've just had private healthcare themselves—that's a different issue. As I said, this is where the ombudsman is following a case through the NHS, then into private and back to the NHS. So, we were not persuaded, as the Finance Committee, that that needs a very complex fee recovery regime, because the costs are relatively limited and small.

Might that be because time would be saved by not having to constantly walk round the private healthcare element of—

Indeed, and any case that's open on the ombudman's books for five and a half years is a bit of a cost in itself, isn't it?

Can I just—? One final small point, which is: in the event that it involved a private health service provider in England or elsewhere in the UK, would the ombudsman be able to investigate that?

Unlikely, it has to be said. The way the Bill is constructed is very much around powers related to Wales, so it's unlikely to affect private healthcare in England. Gareth might be able to—

The Assembly's general competence is limited to things in relation to Wales and the Bill reflects that.

It might be worth reminding everyone that this Bill is based on our current arrangements and not the new arrangements coming in in April next year. So, it's built on the current Wales Act—or the previous Wales Act, I should say.

09:50

Thank you. I'm just going to follow through on the private healthcare theme before moving on to something slightly more generic. With regard to the compliance with the requirement to take action following receipt of a report—say, for instance, around private healthcare—are we actually saying, then, that a requirement to take action can be served or submitted to a private healthcare provider if it has been subject or part subject of the trail of events that you've talked about in terms of an investigation? 

The ombudsman cannot require a private healthcare provider to take a particular action. He can produce a report, a public report, on any failures or other related issues within that healthcare provider. That report, in turn, would be, as I said, private and would have a potential reputational risk for the private healthcare provider, but also, of course, it would be information of great use to anyone considering commissioning that private healthcare provider. So, we are not extending a public services ombudsman's powers into private healthcare, but we are enabling him to speak openly and in an accountable way on behalf of the citizen who's experienced private healthcare and, in doing that, if you like, throw some light on any experiences that might be there.   

So, in terms of it being private to that provider, it would also be a public document, obviously— 

—people's decisions around that. And that's a reputational risk, yes. 

I think that would be welcome. Okay. If the ombudsman must wait to receive comments from a listed authority or persons on any proposed investigation, can you clarify if that's before starting to investigate? 

It is. Thank you. And how much import or weight is the ombudsman expected to take note of prior to investigation? 

In that regard, we'd rely on general principles of good administrative law, I would say, here, to take all relevant considerations into consideration, to have regard to what people have told him. There's no obligation on the ombudsman in that sense that he or she must do what a consultee has said or suggested he must do. We're not trying to—. I think this is where you have to get the balance right between the independence of the ombudsman and just general good practice about consulting people and making it clear what you intend to do, but in that regard we haven't gone any further because we think there's a need sometimes for an independent voice in this area. 

Okay, thank you. Are there mechanisms in place for a listed body or persons identified in any proposal to challenge the investigatory process? 

They'd be able to do so publicly. Ultimately, they would be able to judicially review the decision of the ombudsman, but I would imagine that a public dispute around where the ombudsman can or cannot undertake an own-initiative would be in itself something that would want to be resolved. And, usually, these would be done through protocols and agreements that are already in place. The Bill, as I said, doesn't change that.  

And, in that regard, are you in this role satisfied that those mechanisms are rigorous enough to be able to deal with that delicate balance, as you said, in terms of those rights, responsibilities and balances? 

I—and, in this regard, I'm speaking on behalf of the Finance Committee, in that sense, so 'we'—think that they are explicit enough on the face of the Bill. This is an area that we've never had the ombudsman do before, so they will be tested, there's no doubt about that, and that's not something to be shied away from, in a sense. You need that open testing. And I think the fact that it's public— so he'll make the proposal, everyone will know about that—the fact that, at the end of the day, the report will also be public and we'll be able to examine how the report was done, and then he will have to return to you as a committee to explain his annual report, why he undertook this number of own-initiative investigations, how he did them, who he consulted on them and how everything was done—you'd have that opportunity to scrutinise him—and, in turn, the Finance Committee will be able to scrutinise how much resources he's apportioned to that aspect of his work—. So, I think you've got a range of safeguards there. Gareth.  

And, again, under the current system a listed authority could dispute a complaint, and again the exact same dispute could arise at the moment. 

09:55

Okay. Finally, going back to the private healthcare theme, are you, or the Finance Committee, satisfied that, in the trail of events, in terms of the complex interweaving between public healthcare and sometimes private healthcare, there are sufficient powers or weight attached to the ombudsman's ability to be able to fully delve into some of the very serious issues that can go wrong in both sectors, and to be able to sufficiently carry out that role effectively in terms of an incentivisation of being able to get all sectors to play an optimum part?

Yes, we are, in as much as it relates to a pathway of care that originates with the NHS, goes into private, and then comes back. If you're asking a more general question around whether we need more accountability within private healthcare in Wales in general, this Bill does not address that and is not designed to address that, because we took the very firm view that we didn't want to change the public services ombudsman's role. He is a public services ombudsman and will remain so. It's where the public services shade over into private healthcare and come back—that's what we wanted to capture, because there was a clear loophole there, but we're not extending his powers into the private healthcare sector. That would be a whole different Bill and a whole different set of considerations. 

Thank you. In terms of complaints handling procedures, what sanctions are available to the ombudsman if listed authorities fail to comply with the statutory model CHP, and how does the Bill provide for that?

There are no sanctions on the face of the Bill. The Bill is based, as I say, on the current powers and, within the public sector in Wales, I think we very much want to see collaboration and co-operation and accountability, so if there is a failure to adhere to the highest standards within the Bill then that would be highlighted with the ombudsman. It would be a matter of name and shame—'name and shame' is perhaps a bit strong, but we all know that public bodies have a reputation, and they need to be seen to be acting in the best interests of their citizens. So, there are no sanctions as such. It's a regime very much based on what the ombudsman can do now, which is to name the body concerned and to express his concerns around that.

Can I bring in Gareth, who might have something to add?

Listed authorities, being public authorities, have to comply with the general principles of public law: acting reasonably, proportionately, not breaching human rights, et cetera. And we'd expect compliance with that in relation to complaints handling, as we'd expect compliance in relation to any public authority function. 

Quite often, in some reports, especially the section 16 public interest reports, there are some very strong, robust recommendations. How are they then followed up? Is it by the ombudsman? Who oversees the following up of those recommendations?

Well, the ombudsman publishes his public interest reports and they're a topic of great public interest, as you will know. The following up on that is very much down to the public body itself and its own governance and accountability structures. There may be failures of those on occasions, which then leads to—we go back to the more systematic failure, which, again—. The Bill would enable the ombudsman to produce an own-interest report then, perhaps, to say what is more rooted in that and a more systematic failure. There would be the ability to publish and highlight that. Again, to be clear, we're not adding to the ombudsman's powers in that regard. We're building on his current powers. 

Okay, thanks. And then investigation of complaints—I've got to be honest, I'm quite surprised, really, that social care and palliative care, but more so social care, aren't included, because a lot of people do fall into those. Certainly, my own—

You're talking about the mainstream investigation process for each—

Yes. The mainstream actually excludes the social care side. And I know, from certainly the work that the older people's commissioner has done, that there have been systematic failures in terms of the provision of social care. And I know from my experiences of working with the ombudsman the kind of thorough investigation process that is entailed in going through that process. And I can't get my head around why it doesn't follow through in terms of social care, particularly when we talk about the integration of health and social care. And I feel a lot can fall through the net there.

10:00

So, for clarity, this Bill restates the current position around social care—and palliative care, as it happens. Now, that was not part of the 2005 Act, but was added as a separate line, if you like, under the 2014 social services and—is it well-being, or welfare? Well-being, yes—llesiant, lles

So, that was added. Now, we did consider as a Finance Committee merging these things together, but there are two considerations, I think, that are important. First of all, the Assembly only decided in 2014 to add this in this particular way. Now, that was a decision of the Assembly. It was only barely—not even three years ago now. So, we're trying to update the 2005 Act, but a very recent decision by the Assembly, in a particular way—. Why? We as a Finance Committee had to ask ourselves why did the Assembly take that decision in 2014, and why didn't it do as you suggested. And because the Assembly didn't do that, we had to step back and think, 'Well, is it better to preserve a recent Assembly decision?'—only, as I say, three years ago.

We also as a Finance Committee did look as to whether we could streamline all these together— 'mainstream' them is a better word, rather. And there are quite complex—I'm sure, if you want to ask the legal questions, Gareth Howells will be delighted to deal with it, because we did look at this. Because of the way it was put in under the 2014 Act, and because of the way the Public Services Ombudsman (Wales) Act 2005 is structured, they are two slightly separate regimes, and making them one would have been a more complex piece of legislation, and was not, in our view, justified, both on the grounds of the complexity around that, and on the fact that the Assembly had only recently decided this was the way it wanted to deal with these issues.

But respondents to your own consultation actually advocated, didn't they, bringing the social care element in and palliative care?

They did acknowledge that this was a clear difference between the mainstream, if you like, and this additional thing. But I think, as I say, we had to bear in mind the recent decision of the Assembly and the fact that they are slightly different regimes. But the Bill itself—just before Gareth might come in—does not change the arrangements that are currently working, and have been approved by the Assembly in 2014.

Just to repeat that: so, Part 5 of the Bill deals with, basically, privately provided social and palliative care. If there is social or palliative care provided by a listed authority, that's covered under Part 3, and we haven't changed any of that at all.

We did consider merging both into one mainstream, one regime. The drafting got so technical, and so difficult, it would have been full of 'ifs', 'buts', and 'provided fors'. And we thought—given that one is listed authorities, in Part 3, and Part 5 is your private social care providers, we thought it best to keep them separate.

Okay. Thanks. And then—. Well, again, about demanding costs from private health service providers—the Member in charge to explain why there are no comparable provisions in Part 5 in respect of private social care and palliative care providers.

Well, because we have kept it as inserted in 2014. You will be taking evidence, I've no doubt, from people on this, and we'd be very interested to see what the committee has to conclude at the end of that.

And, of course, the power to demand costs from a private health service provider always ties back to the public NHS element of a complaint. Under Part 5, it's purely the private social care matter. Under Part 3, there's always that tie back to the NHS element, if you like.

Which is the discussion we're having with Jenny Rathbone.

Diolch. Cwestiwn ynglȳn â'r strategaeth ar gyfer y Gymraeg—Rhan 7 y Bil. Roeddwn i'n rhyfeddu, a dweud y gwir, i sylweddoli nad oes yna ddim dyletswydd statudol ar yr ombwdsman ar hyn o bryd i ddarparu gwasanaethau yn Gymraeg, ac mae'r Bil yn ceisio unioni hynny. Ond a ydy o'n ddigon cryf? Achos beth mae hwn yn ei ddweud ydy bod yn:

'Rhaid i'r ombwdsman baratoi a chyhoeddi strategaeth ar gyfer y Gymraeg'

a

'Rhaid i'r strategaeth gynnwys—

(a) asesiad o'r angen i swyddogaethau'r Ombwdsman gael eu cyflawni yn Gymraeg'.

Rydw i'n cymryd mai asesiad gan yr ombwdsman ei hun ydy hynny. A ydy hynny'n cydfynd efo'r ddeddfwriaeth ynglŷn â'r iaith Gymraeg? Oni ddylai hon fod llawer cryfach a hefyd, os oes yna strategaeth mewn lle, pwy sydd yn gyfrifol am fonitro'r strategaeth a sut y bydd y strategaeth yn cael ei gweithredu? Nid ydy'r Bil yn sôn am hynny chwaith.

Thank you. This is a question about the strategy about the Welsh language—Part 7 of the Bill. I was very surprised to realise that there is no statutory duty on the ombudsman at present to provide Welsh language services, and that the Bill is trying to deal with that, or address that. But is it strong enough? Because what this says is that:

'The Ombudsman must prepare and publish a Welsh language strategy'

and

'The strategy must include—

(a) an assessment of the need for the functions of the Ombudsman to be carried out in the Welsh language'.

I take it that that's an assessment by the ombudsman himself. Is that aligned  with the legislation on the Welsh language? Shouldn't this be much stronger and also, if there is a strategy in place, who is responsible for monitoring that and how the strategy will be implemented? The Bill doesn't mention that.

10:05

Diolch am hynny. Nid ydyw ac rŷm ni'n cau'r bwlch yn fan hyn, a dweud y gwir, achos fel rŷch chi newydd danlinellu, nid oes yna ddyletswydd ar yr ombwdsmon o dan y ddeddfwriaeth—wrth gwrs, mae Deddf 2005 yn dyddio cyn Mesur yr iaith Gymraeg, er enghraifft.

Ar hyn o bryd, mae'r ombwdsmon—os caf i, rwy'n gobeithio, roi gair o eglurhad i'r pwyllgor—yn gweithio'n ddwyieithog ac, yn sicr, nid ydym ni fel Pwyllgor Cyllid wedi gweld unrhyw gwynion ynglŷn â'r ffordd y mae'r ombwdsmon yn gweithredu'n ddwyieithog, ond roeddem ni o'r farn bod hyn yn briodol iawn mewn Bil i unioni'r sefyllfa o ran dyletswyddau. Felly, dyma'r ffordd rŷm ni wedi ceisio gwneud hynny, drwy roi dyletswydd ar yr ombwdsmon, gan nad yw wedi'i enwi o dan y Mesur iaith a gan fod, o bosib, datblygiadau eraill yn y maes yma gan y Llywodraeth ynglŷn â'r iaith Gymraeg. Nid rôl y Pwyllgor Cyllid yw mynd i mewn i hynny, ond roeddem ni yn sicr o'r farn y dylai fod dyletswydd ar yr ombwdsmon i ymateb i'r galw am wasanaethau dwyieithog a gwneud hynny'n glir ar wyneb y Bil hefyd.

Thank you for that. It doesn't and we will be closing that gap here, because as you've just said, there is no duty on the ombudsman under legislation—of course, the 2005 Act predates the Welsh language Measure, for example.

At present, the ombudsman—if I may, hopefully, explain this to the committee—operates bilingually and, certainly, we, as a Finance Committee, haven't seen any complaints with regard to the way that the ombudsman operates bilingually, but we were of the opinion that it was very appropriate in a Bill to rectify the situation with regard to duties. So, this is the way that we've tried to do that, by placing a duty on the ombudsman, because he hasn't been named under the language Measure, and because there may be other developments in this area with regard to the Government relating to the Welsh language. It's not the Finance Committee's role to pursue that, but we were certainly of the opinion that there should be a duty on the ombudsman to respond to the demand for bilingual services and to make that clear on the face of the Bill as well.

Ond byddech yn cytuno, efallai, nad yw hwn cweit ddigon cryf fel mae'n sefyll ar hyn o bryd, a bod yna le i wella arno efallai o ran pwy sydd yn gyfrifol am weithredu'r strategaeth a'r camau pellach. Iawn i gael strategaeth, ond pwy sydd yn mynd i fod yn monitro ei bod yn gweithio?

But you would agree, perhaps, that this isn't quite strong enough as it stands at present, and that there's room for improvement, perhaps, in terms of who's responsible for implementing the strategy and the further steps. It's fine to have a strategy, but who's going to be monitoring that it works?

Pwrpas y rhan yma yw sicrhau bod gwasanaethau ar gael yn y Gymraeg a bod cyfartaledd rhwng y ddwy iaith yn cael ei weithredu gan yr ombwdsmon. Os oes yna ffordd o wella hynny neu wneud hynny'n fwy clir, os, fel pwyllgor, ŷch chi'n cymryd tystiolaeth ar hynny—. Ond, fel roeddwn i'n ei ddweud, nid ydym wedi canfod unrhyw fethiannau gan yr ombwdsmon yn y maes yma, ond mae'n rhaid i chi hefyd feddwl ein bod ni wedi penodi'r ombwdsmon am gyfnod penodol ac nid ydym eisiau dibynnu ar ddiddordeb personol unigolion yn y maes yma; rŷm ni eisiau gwneud yn siŵr bod yna rhywbeth ar wyneb y Bil sydd yn ddyletswydd arno ef neu arni hi i baratoi gwasanaethau dwyieithog. Byddem yn hapus iawn i glywed y dystiolaeth i wneud yn siŵr ei fod yn cyrraedd y pwrpas, a phwrpas y Bil yw gwneud yn siŵr bod yr hawl yna ar gyfer gwasanaethau yn Gymraeg gan yr ombwdsmon.

The purpose of this part is to ensure that services are available through the medium of Welsh and that there is equality between both languages from the ombudsman's point of view. If there is a way to improve it or make it more clear, if, as a committee, you were to hear evidence on that—. But, as I said, we haven't identified any failings by the ombudsman in this area, but you also have to think that we appoint an ombudsman for a specific period of time and we don't want to depend on the personal interest of an individual in this area; we want to ensure that there is something on the face of the Bill that is a duty on him or her to prepare and provide bilingual services. We would be very happy to hear the evidence to ensure that that does achieve its aim, and the Bill's purpose is to ensure that there is that right to receive bilingual services from the ombudsman.

Ac o ran yr agwedd yma am ymgymryd â dyletswyddau ynglŷn â chwynion cyffredinol am y Gymraeg, sydd yn rhywbeth y mae'r ombwdsmon wedi dechrau ei drafod—rhown ni o fel yna—a ydych yn cadarnhau nad y Bil yma fyddai'r lle i wneud hynny ac na fyddai unrhyw welliannau i'r Bil yma ar y mater hwnnw yn briodol?

And in terms of undertaking duties on general complaints about the Welsh language, which is something that the ombudsman has started to discuss—we'll put it that way—are you confirming that this Bill is not the place to do that and that any amendments to the Bill on that matter would not be appropriate?

Byddent yn gwbl amhriodol yn fy marn i. Fe fyddwn i'n gyndyn iawn i weld y Bil yma'n cael ei ddefnyddio at y pwrpas yna. Mae trafodaethau wedi digwydd ac wedi cael eu cadarnhau rhwng yr ombwdsmon a'r Llywodraeth ynglŷn â rôl yr ombwdsmon ynghylch cwynion ynglŷn â'r iaith Gymraeg a chomisiynydd yr iaith. Mae’r trafodaethau hynny'n digwydd nawr ar sail y pwerau presennol. Felly, mae'r pwerau presennol yn caniatáu i'r trafodaethau hynny ddigwydd. Mae'r Bil yma'n gwbl niwtral ar y mater yna ac rwyf o'r farn, yn sicr, os yw'r Llywodraeth am newid y berthynas rhwng yr ombwdsmon a Chomisiynydd yr Iaith Gymraeg mewn perthynas â chwynion ynglŷn â defnydd o'r iaith Gymraeg, byddai'n rhaid i hynny gael ei wneud mewn deddfwriaeth sylfaenol gan y Llywodraeth ynglŷn â'r iaith Gymraeg. Nid y Bil yma ydy'r ffordd i wneud hynny.

They'd be entirely inappropriate in my opinion. I'd be very loathe to see this Bill being used for that purpose. Discussions have taken place and have been confirmed between the ombudsman and the Government with regard to the ombudsman's role relating to complaints about the Welsh language and the Welsh Language Commissioner. Those discussions are now ongoing with regard to the current powers. Therefore, the current powers allow those discussions to take place. This Bill is entirely neutral on that matter and I am certainly of the opinion that if the Government wants to change the relationship between the ombudsman and the Welsh Language Commissioner with regard to complaints about the use of the Welsh language, then that has to be done in primary legislation put forward by the Government with regard to the Welsh language. This Bill isn't the way to do that.

Iawn. Mae hynny'n ddigon clir. Diolch.

Okay. That's clear enough. Thank you.

Diolch yn fawr, Simon. Could we move on to the financial matters?

Faint y mae hyn i gyd yn mynd i gostio? Dyna beth y mae pobl yn mynd i fod yn holi achos rydym yn gwybod bod y llwyth gwaith achosion yn cynyddu'n sylweddol ac y gallai hynny gostio hyd at £8 miliwn dros y blynyddoedd nesaf yma. Ai dyma'r amser i fod yn ymestyn y pwerau, o gofio ei fod yn mynd i gostio gymaint?

How much is all this going to cost? That is what people are going to ask because we know that the case load is increasing significantly and that that could cost up to £8 million over the years to come. Is this the time to be extending the powers, given that it is going to cost so much money?

Mae'r memorandwm esboniadol yn gosod allan dau achos, a dweud y gwir—yn fras iawn: costau gwneud y Bil yma, fel ag y mae, a chostau peidio â gwneud y Bil yma, a rhagolwg pe bai'r cwynion yn cynyddu fel y maen nhw wedi bod yn cynyddu, o ran beth fyddai cost hynny, o bosib, i'r pwrs cyhoeddus. Cofiwch fod y Bil yn ceisio, yn y pen draw, ie, rhoi mwy o bwerau i'r ombwdsmon, ond hefyd gwneud gwaith yr ombwdsmon yn fwy effeithiol—hynny yw, gyda llai o gostau fesul uned, os liciwch chi—wrth drio codi safonau ar gyfer cwynion, wrth drio gwneud yn siŵr bod ymchwiliadau ar ei liwt ei hun yn mynd i ateb y galw ac efallai mynd o flaen gofidiau, mewn ffordd, i wneud yn siŵr bod y gwelliant yn digwydd i'r system gyfan. Rydym ni'n ceisio cael arbedion yn hynny. 

Ond, mae'r costau, rwy'n gobeithio, yn ddigon clir yn y memorandwm esboniadol i bawb. Felly, o edrych ar yr angen am ymchwiliadau ar ei liwt ei hun a hefyd safoni cwynion ymysg gwasanaethau cyhoeddus, a hefyd y costau anuniongyrchol, sydd dipyn yn llai, ond mae yna rywfaint o gostau anuniongyrchol ar y cyrff sydd wedi'u dynodi—rydych chi'n sôn am rhwng £1.8 miliwn a £2 miliwn dros bum mlynedd. Rŷm ni wedi gweithio'r costau mas dros bum mlynedd, sydd yn rhywbeth o dan £400,000 y flwyddyn.

Y cyd-destun i hynny yw un lle mae'r Pwyllgor Cyllid wedi'i gwneud yn glir iawn i bob corff sy'n cael ei ariannu o grant bloc Cymru yn ddiweddar, nad ydym yn disgwyl cynnydd sylweddol yn fwy na'r cynnydd sydd yn y bloc. Rydym ni wedi dweud hynny wrth yr ombwdsmon, wrth yr archwilydd cyffredinol, ac wrth Gomisiwn y Cynulliad ei hun. Felly, y cyd-destun yw y bydd yr ombwdsmon ei hun yn gorfod gweithio yn galetach i ddod â chost y gŵyn—yr uned—i lawr, sef rhywbeth y mae wedi llwyddo i'w wneud yn dda iawn, os caf i ddweud. Mae'r costau hynny wedi gostwng yn sylweddol.

Dyna'r cyd-destun, ond nid ydym ni'n trio celu'r ffaith bod yna gost i'r Bil. Rydych chi'n rhoi mwy o bwerau a chwmpas mwy i waith yr ombwdsmon, felly mae yna gostau.

The explanatory memorandum sets out two cases—in brief: the cost of implementing this Bill, as it stands, and the cost of not implementing this Bill, and a forecast if complaints were to increase as they have been increasing, in terms of what the cost of that potentially could be to the public purse. Remember that the Bill tries, ultimately, yes, to give the ombudsman greater powers, but also tries to make the ombudsman's work more effective—that is, with lower unit costs, if you like—by trying to increase standards when dealing with complaints, and in ensuring that own-initiative investigations are going to meet the demand, and perhaps predict demand, in a way, to try to improve the entire system. So, we are trying to seek savings in that regard.

But, I hope that the costs are clear enough to everybody in the explanatory memorandum. So, in looking at the need for own-initiative investigations, and standardising complaints amongst public services, as well as the indirect costs, which are slightly smaller, but there are some indirect costs for the bodies noted—you're talking between £1.8 million and £2 million over five years. We've worked the costs out over five years, which is below the £400,000 a year.

The context of that is where the Finance Committee has made it very clear that for every body funded from the Welsh block grant recently, we don't expect a significant increase greater than the increase in the block grant. We've said that to the ombudsman, to the auditor general, and to the Assembly Commission itself. So, the context is that the ombudsman will have to work harder to bring the per-unit cost down, and that's something that he's succeeded in doing very well. Those costs have decreased significantly.

So, that's the context, but we are not trying to hide from the fact that there is a cost to the Bill. We are giving the ombudsman greater powers, and greater scope to his work, so there will be costs.

10:10

A beth am y costau i wasanaethau cyhoeddus yn sgil hynny hefyd? Yn amlwg, mae yna knock-on yn mynd i fod wedyn iddyn nhw hefyd. Mewn cyfnod o doriadau, a ydyn nhw eisiau hyn i gyd ar eu dwylo hefyd?

And what about the costs to public services in the wake of that? Obviously, there's going to be a knock-on effect for them as well. In a period of cuts, do they want this on their hands as well?

Rwy'n credu bod hwnnw'n gwestiwn cwbl briodol ac yn gwestiwn, mae'n siŵr, y bydd y Llywodraeth hithau eisiau ei drafod â chi. 

Mae'r costau anuniongyrchol yna o gwmpas y £200,000, os rwy'n cofio'n iawn, dros y pum mlynedd, sydd ddim yn fater bach iawn, ond mae wedi'i wasgaru dros holl sector cyhoeddus Cymru.

Yr hyn yr ydym wedi gorfod ei wneud—a gwnaf i ddweud hyn ymlaen llaw—fel Pwyllgor Cyllid yw dyrannu hynny dros y sector i gyd. Nid oes tystiolaeth, nid oes yna ddim digon o ffeithiau na gwybodaeth gyda ni, i ddweud ym mha ran o'r sector cyhoeddus y bydd y costau yn fwy tebygol o fod yn fwy trwm na'i gilydd. Jest i roi enghraifft i chi, mae costau delio â chwynion yn y sector iechyd yn llyncu 80 y cant o waith ac arian yr ombwdsmon. Felly, mae'n rhoi argraff i chi o'r—.

Os ydym ni'n cael system a fydd yn gwella'r methiannau systemig yn y system yna, fe fyddwn ni'n gallu gwneud arbedion sylweddol iawn. Ond, ar hyn o bryd, nid ydym ni'n llwyddo i wneud hynny. Ar hyn o bryd, mae'r ombwdsmon yn llwyddiannus yn delio â chwynion unigol, ond nid oes yna ddim gwellhad dros y system. Mae yna nifer o bethau law yn llaw yn y Bil yma ynglŷn â mentrau ar ei liwt ei hunan, ynglŷn â gweithio a chysoni safonau, sydd, gobeithio, yn mynd i wella'r ochr yna o bethau hefyd. Felly, dyna pam rydym ni hefyd yn dweud yn glir iawn yn y memorandwm y bydd arbedion yn y modd yna o'r Bil yma, ond, wrth gwrs, beth nad ydym ni'n gallu ei wneud yw rhoi unrhyw bris ar hynny, yn anffodus, a byddem ni wedi dwlu gwneud, fel Pwyllgor Cyllid, rhoi pris ar hynny, ond, yn syml iawn, nid oes yna ddigon o dystiolaeth na ffeithiau inni wneud hynny.

I think that that's an entirely appropriate question, and I'm sure it's a question that the Government itself will want to discuss with you. 

The indirect costs are around £200,000, if I remember correctly, over five years, and that isn't a trivial amount, but it has been spread over the whole of the public sector in Wales.

What we've had to do—and I will say this beforehand—as a Finance Committee is to allocate that across the whole sector. There are insufficient evidence, facts and information to say on which part of the public sector the costs are more likely to fall more heavily than on others. Just to give you an example, the costs of dealing with complaints in the health sector swallow up 80 per cent of the ombudsman's work and funding. So, it gives you an impression of—.

If we have a system that improves those systematic failings in that system, then we can make significant savings. However, at present, we are not succeeding in doing that. At present, the ombudsman is dealing with individual complaints, but there is no systematic improvement. So, there are a number of things with regard to this Bill in terms of the own-initiative investigations and standardising those standards that will, hopefully, improve that systematic side of things. So, that's why we are saying very clearly in the memorandum that there will be savings in that regard as a result of this Bill, but, what we can't do is to give any kind of estimate for that. We would love to do that, as a Finance Committee, but, very simply, there is insufficient evidence or facts for us to do that.

Ac wedyn, beth am hyrwyddo'r Bil? Mae hynny'n mynd i gostio arian hefyd, neu nid oes yna ddim pwrpas rhoi'r pwerau newydd yna os nad oes neb yn gwybod amdanyn nhw. A ydych chi wedi gwneud asesiad o faint y bydd hynny'n ei gostio?

And finally, what about promoting the Bill? That's going to cost money as well, or there's no point in having the new powers if nobody knows about them. Have you made an assessment of how much that's going to cost?

Wel, ydym ac nac ydym, yn yr ystyr ein bod ni wedi trafod hynny â'r ombwdsmon, ac â swyddfa'r ombwdsmon yn benodol. Mae e wedi'i gwneud yn glir er bod yna gostau, fel rŷch chi'n dweud, er enghraifft, yn mynd yn ôl at y cwestiwn yr oedd Jenny Rathbone yn ei ofyn, mae yna gostau gwneud yn siŵr bod pawb yn gwybod sut mae cwynion ar lafar yn mynd i gael eu delio â nhw. Mae'r ombwdsmon wedi dweud ei fod e o'r farn bod modd iddo fe wynebu'r gost yna o gostau cynnal a chadw ei swyddfa o flwyddyn i flwyddyn. Felly, nid yw e'n rhagweld neilltuo arian penodol i hynny, mae'n rhagweld y bydd yn gorfod, os liciwch chi, llyncu'r costau yna ei hun, fel rhan o'i waith i hyrwyddo ei swyddfa yn gyffredinol.

Well, yes and no, in the sense that we've discussed that with the ombudsman, and with the ombudsman's office in particular. The ombudsman's made it very clear that even though there are costs, for example, going back to the question that Jenny Rathbone asked, there are costs to making sure that everyone knows how oral complaints are going to be dealt with. The ombudsman has said that he is of the opinion that he can face those costs and pay them from the maintenance costs of his office from year to year. So, he doesn't see that there will be specific funds allocated to that, he will have to swallow those and deal with those costs himself, as part of the general promotion of his office.

10:15

Could I ask, Simon, again, on the financial matters? I know the Finance Committee made a series of recommendations to Welsh Government recently. I think we'd be interested in terms of what financial considerations should be around this proposed legislation, and why costs associated with post-implementation reviews and subordinate legislation, for example, are not included in the RIA.

Yes, you're quite right to remind us that we've made recommendations to Government about this. So, as a Finance Committee, we should also examine these. We have looked at that, obviously. I think there's a difference here because the ombudsman is accountable to the Assembly through the Finance Committee and this committee. We would therefore think that post-implementation reviews, and indeed the review of the Act that the Bill sets out, which has to happen in five years—it can happen earlier, but has to happen in five years—that those are all part of the day-to-day work of this committee, and also the Finance Committee. Therefore, we don't think that's an additional cost that we need to factor into the costs of the Bill. And, there is likely to be very limited use of subordinate legislation, if at all, with this Bill. There are abilities to do that, but our experience is that that has not been the case with the 2005 Act. A lot of it is restating what is in the 2005 Act. Therefore, we hadn't thought that it was necessary to apportion costs for that.

Still on the RIA, Simon, it doesn't include detail on the probable cost of dealing with the private healthcare cases. Is that a deficiency?

I think it does include an outline cost; it doesn't factor it in, if you like. The costs are, as explained by the ombudsman's office, under £4,000 a year, so we didn't think that that merited an individual approach to that cost. So, it's stated in the explanatory memorandum as a cost, but it isn't dealt with separately in terms of how you might meet that cost or whatever. It's expected to be met with the general funding of the ombudsman's office.

Right, okay. Just in general, as we're more or less out of time. We know there may be increased costs: there's the own-initiative investigations; the private healthcare, although, as you say, it might not be that significant; setting complaints standards; and we've talked about promotion. There might be a general view that it is quite likely that the costs of the ombudsman providing services and fulfilling responsibilities under the new regime, as it were, would be considerable. I think there may be a view that more detail should be provided on that. What would be your response to that?

First of all to say there are certainly costs around own initiative and the complaints standards regime. Those costs are mainly associated with staff costs within the ombudsman's own office, and some indirect costs on the organisations that would have to respond, particularly to respond to the complaints standards regime. Those are set out in detail in the explanatory memorandum. They're based on an independent report commissioned by the ombudsman's office, so it's an independent consultancy that's looked at that. Clearly, if you as a committee get further evidence around costs, then we'd be very interested as the Finance Committee to examine that.

But, I think we've tried to meet the standards we set ourselves as the Finance Committee in terms of setting out these costs. We haven't shied away from saying that there are costs there. What are the costs over five years? That's between £1.8 million and £2 million, spread over the five years. We can't go beyond five years because the costs get too intangible after five years or so, and the ombudsman himself has said that this can be implemented over three years, so I think we've been generous to make sure that we've got an understanding of what these could be over five years.

We're doing this at a time of general cost cutting, at a time of austerity, at a time of difficulty for many budgets in public services; we understand that. But, we also feel very strongly that people still have to have access to justice and access to a fair treatment for their services, and particularly some of the things we've been discussing in this committee about making sure that the people who, today, are not feeling empowered enough to make complaints to the ombudsman are included, and that the ombudsman has those wider initiative powers to make wider reports about improving public services in Wales. 

Ultimately, our belief is that this would improve the work of the ombudsman, the salience of the ombudsman, and improve the efficiency and effectiveness of public services in responding to citizens' needs and complaints. I very much welcome the fact that that's going to be scrutinised, and we will then examine the evidence as to whether we've got that balance correct.

10:20

Okay. Simon, thank you very much—and thanks not just to Simon but also to Gareth and Joanne for coming in to give evidence this morning. You will be sent a transcript to check for factual accuracy in the usual way. Diolch yn fawr.

Okay. The committee will break briefly until 10.30 a.m.

Gohiriwyd y cyfarfod rhwng 10:20 a 10:30.

The meeting adjourned between 10:20 and 10:30.

10:30
3. Craffu ar adroddiad blynyddol Ombwdsmon Gwasanaethau Cyhoeddus Cymru 2016-17
3. Scrutiny of the Public Services Ombudsman for Wales annual report 2016-17

Welcome back, everyone, to committee. May I take this opportunity to welcome Mick Antoniw as the new member of the committee? I'm sure you'll enjoy the committee's work, Mick, and it's good to have you on board, as it were.

Item 3 today is scrutiny of the Public Services Ombudsman for Wales annual report 2016-17. I'm very pleased to welcome Nick Bennett, as the ombudsman for public services in Wales; Chris Vinestock, chief operating officer and director of investigations; and Katrin Shaw, director of policy, legal and governance. Welcome to you all. Perhaps I might begin, then, with the first question, which is whether, Nick, you anticipate the upward trend that we've seen over recent years in case load continuing over coming years and, if so, what would be the impact of that trend?

Good morning. Bore da i chi gyd. Thank you very much. 

As you'll see from my annual report, I'm afraid that the pressure on the office—the number of complaints coming to us—has increased by 75 per cent over the past five or six years. I would like to see that trend coming down, not just so that my office can cope but so the users of public services in Wales hopefully have a more positive experience than some of them currently have. We monitor this now on a monthly basis, and I'm pleased to say that, this year, so far, complaints coming to my office are down by about 6 per cent. However, health cases continue to increase. So far this year, they're up 19 per cent, and that's why I think—. The Chair of the Finance Committee was alluding earlier to the fact that 80 per cent of my investigation resource is now devoted to health matters, and it's why I'm so delighted that this committee will be giving scrutiny to the new Bill, because I feel that there is a Welsh reason why we can put this in some historic context.

In 1978, there was a Welshman, Sir Idwal Pugh, who was the parliamentary and health ombudsman for the United Kingdom. In 1978, he was concerned that the complaints coming to his office, from across the UK—from across the UK—totalled 712. This year, I've received over 800 just in Wales. Sir Idwal's successor, Rob Behrens, in England will receive over 24,000 health complaints. There'll be another 3,000 or so in Scotland and a significant number in Northern Ireland as well.

So, I hope that would give the committee some idea of the historic trend here, in terms of what's been going on, particularly with health complaints, and that's why I'm very keen that we are as innovative as possible in the way we go about dealing with them. That means that issues such as early resolution have become increasingly important. It's why you'll see from the annual report that early resolution has gone up 26 per cent during the past 12 months. But I do think that using statutory powers to innovate is vital, because I do not expect, given the financial circumstances that this Assembly finds itself in, that I can come back here and ask for a 75 per cent increase in my budget to deal with the 75 per cent increase in casework going forward.

So, what would you say, in essence, is driving this increase in enquiries and complaints, and how does that fit with action taken to improve the quality of public services?

I think there are a number of things going on. Some of them are specific to the health service; some of them are more general issues. I think, first of all, people are more ready to complain. I think, quite often, that can be a very positive thing. It gives feedback; it can be a currency in a non-market environment in order to drive improvement, so I think that can quite often be a very good thing. I think the pressure on the NHS in particular has increased. We've seen a 75 per cent increase in complaints coming to the office. I would say—and I was discussing this with health professionals yesterday—that, over the last 20 years, they've probably seen a 40 per cent increase in demand for health services. I also think, perhaps, that the NHS has been a great success—is it a victim of its success, in the sense that it's over 70 years of age, so you'd have to be quite long in the tooth to remember a time when you didn't have the benefits of a free health service? So, I think that might be an additional issue.

There's also the issue of the strain, which, again, should be positive in some ways, of an ageing population. In the old days, people died younger, normally of one thing. Nowadays, people are tending to live much longer, and when they have treatment, it tends to be much more multidimensional and there's more scope for things to go wrong, and when they do, getting to the bottom of that is a much more demanding issue. But I do think, as well, that there's a challenge here in terms of the culture of public service, and we have to make sure that we've got, I hope, a passionate culture that treats complaints seriously and uses them to improve public services. And I'm pleased to say, and I think I allude to this in the report as well, there are some sectors, certainly, where we've seen a reduction in complaints over the past few years. Local government would be one area of success; we've seen a significant decrease over the last few years.

10:35

Diolch yn fawr iawn. Mae swydd yr ombwdsmon yn atebol i'r Cynulliad, nid y Llywodraeth, wrth gwrs. Pa mor bwysig ydy annibyniaeth y swydd i chi?

Thank you very much. The ombudsman's office is accountable to the Assembly, not the Government, of course. So, how important is the independence of the office?

Rydw i'n meddwl ei fod o'n hollol bwysig. Dyna pam rydw i wedi lleisio barn pan mae'n dod at ddyfodol cwynion ar yr iaith Gymraeg, wrth gwrs, oherwydd nid jest Comisiynydd y Gymraeg, ond rydw i'n meddwl bod pob comisiynydd, ar hyn o bryd, yn cael eu penodi gan Weinidog. Rydw i'n glir iawn fy mod yn cael fy mhenodi gan y Cynulliad. Felly, os ydy rhywun yn rhoi cwyn i mewn am wasanaethau unrhyw adran y Llywodraeth, mae gan yr achwynydd yna yr hyder fy mod i'n hollol annibynnol o'r Llywodraeth.

I think it's vital. That's why I've expressed an opinion about the future of the complaints on the Welsh language, of course, because not just the Welsh Language Commissioner, but I think every commissioner at present is appointed by a Minister. I'm very clear that I'm appointed by the Assembly. So, if someone submits a complaint about the services of any department within the Government, the complainant has the confidence that I am entirely independent of the Government.

Onid ydych chi wedi cyfaddawdu annibyniaeth yr ombwdsmon trwy drafod materion yn ymwneud â chael pwerau'n ymwneud â'r Gymraeg efo'r Llywodraeth? Er enghraifft, mewn cyfarfod ar 13 Medi, mi wnaethoch chi drafod â staff Llywodraeth a dweud bod—mae'r cofnodion yn Saesneg—

But haven't you compromised the independence of the ombudsman by discussing issues related to acquiring powers over the Welsh language with the Government? For example, in a meeting on 13 September, you discussed with Government staff, saying that—and the minutes are in English—

ombudsman Wales could provide a more cost-effective way of handling and investigating complaints about Welsh language standards.

Gyda'r drafodaeth yna efo'r Llywodraeth ar fater yn ymwneud â Bil y Gymraeg, onid ydych chi wedi cyfaddawdu'n sylweddol eich annibyniaeth chi fel ombwdsmon Cymru?

With that discussion with the Government on an issue with regard to the Welsh language Bill, have you not compromised significantly your independence as Welsh ombudsman?

Naddo. Nid wyf yn derbyn hynny, oherwydd ers cychwyn y swydd tair blynedd a hanner yn ôl, rydw i wedi ymateb i 14 ymgynghoriad gan y Llywodraeth neu gan Gomisiwn y Gyfraith. Mae Cymru'n le bach. Rydw i'n trafod â gweision sifil yn eithaf aml, ac weithiau rydw i'n ffraeo efo gweision sifil. Rydw i'n cofio pan wnes i gyhoeddi adroddiad thematig ynglŷn â'r gwasanaeth iechyd a gwasanaethau tu allan i oriau, fe wnes i ddod o dan bwysau aruthrol gan weision sifil, a chan Weinidogion hefyd, i beidio â chyhoeddi, i beidio â sôn am safon gwasanaethau tu allan i oriau. Fe wnes i gario ymlaen. Fe wnes i gyhoeddi'r adroddiad, yn hollol annibynnol, ac rydw i'n falch iawn i ddweud, ers hynny, mae'r Llywodraeth a'r ddau Weinidog, Mark Drakeford a Vaughan Gething, wedi bod yn ddigon aeddfed i ymateb a sicrhau bod yna adolygiad o wasanaethau tu allan i oriau yn ystod y flwyddyn yma.

Ar ddiwedd y dydd, fe fydd gwasanaethau, pan mae'n dod i'r rheini y tu allan i oriau, yn gwella oherwydd na wnes i gyfaddawdu'r adeg hynny. Ar ddiwedd y dydd, Siân, mae'n rhaid i fi fod yn annibynnol, ond hefyd mae gen i i un o'r swyddi hynny—ac nid oes llawer ohonyn nhw, yn anffodus, yng Nghymru—lle mae'n rhaid i chi fod yn barod i ddweud y gwir wrth rym, ac mae hynny'n golygu fy mod i'n ypsetio pobl yn eithaf aml. Weithiau rydw i'n ypsetio'r gwrthbleidiau, ac weithiau rydw i'n ypsetio'r Llywodraeth. Pob tro rydw i'n delio â chŵyn, rydw i'n ypsetio'r achwynydd os nad ydw i'n ffeindio o'i blaid. Os ydw i'n ffeindio yn erbyn y bwrdd iechyd, y cyngor neu unrhyw gorff arall, rydw i'n eu hypsetio nhw. Yn anffodus, nid yw'n un o'r swyddi mwyaf poblogaidd yng Nghymru, ond rydw i'n addo i chi, fy rôl i ydy dweud y gwir wrth rym, ac mae gennyf i ddyletswydd gyhoeddus i wneud hynny.

Dyna pam y gwnes i sôn am y gyfundrefn ar y ffordd i wella cwynion Cymraeg hefyd. Oherwydd rydw wedi gweld ymarfer da mewn llefydd eraill. Rydw i'n gweld beth sy'n digwydd yng Ngwlad y Basg, rydw i'n gweld beth sy'n digwydd yn Iwerddon, ac yng Nghatalonia hefyd. Os oes yna hawliau gwell, ac os oes yna ffyrdd gwell o ddelio â chwynion ieithyddol mewn llefydd eraill, rydw i'n meddwl bod gennyf i ddyletswydd i sicrhau bod y wybodaeth yna yn dod yn ôl i Gymru.

No. I don't accept that, because since I started this job three and a half years ago, I have responded to 14 consultations from the Government or from the Law Commission. Wales is a small place. I discuss with civil servants quite often, and sometimes I argue with civil servants. I remember when I published a thematic report on the health service and out-of-hours services, I came under great pressure from civil servants, and from Ministers as well, not to publish and not to talk about the quality of out-of-hours services. But I proceeded and I did publish the report, entirely independently, and I'm very pleased to say that, since then, the Government and the two Ministers, Mark Drakeford and Vaughan Gething, have been mature enough to respond and ensure that there is a review of out-of-hours services during this year.

At the end of the day, out-of-hours services will improve because I didn't compromise at that time. At the end of the day, Siân, I have to be independent, but also, there aren't many of them in Wales, but I have one of those roles where you have to be ready to tell the truth to power, and that means I upset people regularly. Sometimes I upset the opposition parties, and sometimes I upset the Government. Every time I deal with a complaint, I upset the complainant if I don't find in their favour. And if I find against the health board, the council or any other body, I upset them. Unfortunately, it's not one of those roles that's very popular in Wales, but I do promise you that my role is to speak the truth to power, and I have a public duty to do that.

That's why I mentioned the regime in terms of improving Welsh language services. Because I've seen good practice in other places. I've seen what's been happening in the Basque Country, in Ireland and in Catalonia as well. If there are better rights and if there are better ways of dealing with linguistic complaints in other places, I think I have a duty to ensure that that information comes back to Wales.

10:40

Ond mae yna brotocol, wrth gwrs, rhyngoch chi a'r comisiynwyr nad ydych chi ddim i fod i adolygu eu gwaith nhw, nac, yn wir, i feirniadu gwaith y comisiynwyr yn y Cynulliad. Yn eich tystiolaeth chi i'r Papur Gwyn ar Fil y Gymraeg, rydych chi'n dweud bod system gwyno Comisiynydd y Gymraeg 

'yn rhy fiwrocrataidd ac yn gymhleth a’i bod yn gallu bod yn wastraffus.'

Beirniadaeth ydy hynny, yn torri'r protocol sydd rhyngoch chi a'r comisiynwyr—

But there is a protocol, of course, between you and the commissioners that you're not supposed to review them or criticise their work in the Assembly. Now, in your evidence on the Welsh language Bill White Paper, you said that the complaints process for the Welsh Language Commissioner

'is over-bureaucratic and complicated and that it can be wasteful.'

Now, that's a criticism; you're breaking the protocol between you and the commissioners—

I'm coming to an end on this now.

Rydw i'n meddwl ei fod o'n fater pwysig. Mae mater annibyniaeth yr ombwdsmon yn bwysig, ac nid wyf i'n ymddiheuro am fynd ar ôl y mater, achos mae o'n sylfaenol. Os oes yna dorri'r annibyniaeth yna, mae o'n fater difrifol. Felly, nid ydych chi'n derbyn bod yna brotocol yn bodoli rhyngoch chi a'r comisiynwyr ac nid ydych chi'n derbyn eich bod chi wedi ei dorri fo.

I think it's an important issue. It's related to the independence of the ombudsman; it is important, and I don't apologise for pursuing that matter, because it is a fundamental issue. If there is a breach of that independence, then it is an important issue. So, you don't accept that there is a protocol between you and the commissioners and you don't accept that you've broken it.

O, nid wyf i wedi ei dorri fo. Yn sicr, mae o'n bodoli. Rydym ni'n cytuno ar hynny. Hefyd, rydw i'n ddiolchgar ichi, Siân, am godi'r pwyntiau yma, oherwydd mae'r mater yma wedi codi ers cychwyn Hydref, ac rydw i'n falch iawn i gael y cyfle i sicrhau bod pawb yn dallt yn union beth rydw i wedi ei ddweud a beth nad ydw i wedi ei ddweud.

Mae yna nifer o bethau sydd wedi cael eu dweud sydd ddim yn wir, er enghraifft y ffaith rydw i wedi rhoi cais i mewn i fod yn gomisiynydd iaith. Gallaf i ddweud wrthych chi yn glir ac yn blwmp ac yn blaen nad ydw i eisiau bod yn gomisiynydd iaith. Mae fy mhapur i'n glir iawn yn dweud ei fod o'n rhy wleidyddol imi sôn am ddyfodol y comisiynydd, ac mae fy mhapur i'n dweud yn glir iawn bod yna rôl glir ar gyfer rhywun i reoleiddio'r iaith Gymraeg, ac nid fy swyddogaeth i ydy hynny. Nid wyf i'n rheoleiddiwr, rydw i'n ombwdsmon, ond rydw i'n gweld y ffaith bod ombwdsmyn yn delio—ac yn delio yn gyflymach, os gallaf ddweud—â chwynion ieithyddol mewn gwledydd eraill yn bwynt pwysig.

Pan mae'n dod i'r memorandwm, nid wyf i wedi ei dorri fo. Mae'r memorandwm yna er mwyn sicrhau nad ydym ni'n cystadlu pan mae'n dod i gwynion ieithyddol, ac rydym ni wedi parchu hynny. Ond, fel rydw i'n meddwl bod y llythyr sydd wedi dod gan Adam Price yn ei ddweud, 'ni ddylen nhw adolygu'r modd mae'r naill neu'r llall yn cyflawni swyddogaethau oni bai fod darpariaethau statudol yn caniatáu hynny'. Wel, byddwn i'n dweud bod darpariaethau statudol yn cynnwys y ffaith bod yna ymgynghoriad gan y Llywodraeth. Y cwbl rydw i wedi ei wneud ydy ymateb i ymgynghoriad y Llywodraeth. Fel rydw i'n ei ddweud, mae'n brif ffrwd o'm swydd ac rydw i wedi ei wneud o 14 o weithiau. Gydag 13 ohonyn nhw, rydw i wedi cael fy anwybyddu'n llwyr, ond mae hwn wedi cael proffeil eithaf uchel. 

Oh, no, I haven't broken it. Certainly, it does exist. We agree on that. And I am grateful to you, Siân, for raising these points, because this issue has arisen since the start of October, and I'm very pleased to have the opportunity to ensure that everyone understands what I have said and what I haven't said.

There are a number of things that have been said that aren't true, for example the fact that I've put a request in to be the language commissioner. I can tell you plainly that I don't want to be the Welsh Language Commissioner. My paper states very clearly that it's too political for me to talk about the future of the commissioner, and my paper also states very clearly that there is a clear role for someone to regulate the Welsh language, and it's not my function. I am not a regulator; I am an ombudsman. But I do see the fact that ombudsmen do deal, and deal more quickly, if I may say, with linguistic complaints in other countries as an important point.

When it comes to the memorandum, I haven't broken it. That is there to ensure that we don't compete when it comes to linguistic complaints, and we have respected that. But, as I think that the letter from Adam Price says, 'they shouldn't review the way in which either fulfils their functions unless the statutory provisions allow for that.' Well, I would say that statutory provisions do include the fact that there is a consultation from the Government. All I've done is to respond to the Government consulation. As I said, it's a mainstream part of my job, and I've done it 14 times. Thirteen have been ignored entirely, but this has had quite a high profile.

Okay, Siân, I think we've given that a reasonable airing.

Can I just return briefly to costs, Nick, in terms of the projected increases in case load? I think you'd indicated earlier that there are ways of addressing the pressures that might come from increased workload. Are you reasonably content with the resource that your office has?

Yes. I've been very grateful to the Finance Committee for the amount of resource that they've made available to my office. However, it hasn't kept up fully with our share of the Welsh block. If I look back at the proportion back in 2010, then I think my office budget—. It's small, relative to the whole of the block, but at that point, it was about 0.26 per cent—or 0.026 per cent—of the Welsh block. That's now down to 0.24 per cent. It would come back up to 0.26 per cent with the additional costs for the new legislation, but, as I say, I think this is about innovation. It's about looking at the best practice that's existed in Scotland in terms of the Complaints Standards Authority, in Ireland and other places internationally in terms of own-initiative. So, it's about us being as flexible and as innovative as we can be, given that we need to futureproof, because, given that there were only 712 health complaints across the UK 40 years ago and I currently get more than 800, I need to make sure that we're as fleet of foot as we can be to deal with the pressures that emerge for the future. Nobody says they could do with less money, but I've tried to be realistic—prudent, I think the Finance Committee referred to it as. But I'm grateful to them for the resource that they've made available. We try and cope as best we can within that financial envelope, but I think it's wise to look at other tools, legislative tools as well as financial ones, in order to cope with the pressures that exist.

10:45

Okay. Thanks for that. We'll move on, then, to public body complaints and Jenny Rathbone.

Thank you. In your introduction you highlight the importance of learning—that the learning from complaints is acted upon. Do you attribute that acting on the learning from complaints to a decrease in the complaints from local authorities?

Partly, yes. I am grateful to the local government sector for the way it has engaged with us, the way that it has tried to do more local or early resolution, and the fact that we've had a good, very constructive relationship with the 22 complaint handlers. I think that they've done a lot to try and improve, certainly when we look at what we've tried to do in terms of appointing six or seven improvement officers to help the cultural development of some of the public services that provide the highest volumes of our complaints.

I would say that the biggest success that we've had was with one local authority, Ceredigion. We appointed an improvement officer for Ceredigion about three years ago, and Ceredigion, as you know, is a small, rural area. It accounts for 2 per cent, only 2 per cent, of the Welsh population. At the time, it also accounted for a third of all upheld local government complaints in Wales, which is quite staggering. We've worked with them, and that proportion has come down. I think last year it was 17 per cent. This year, so far, we have no upheld—I think we've got one early resolution, but no upheld complaints with Ceredigion.

Clearly, that could change. If anything serious comes up, then we would obviously look at it, the same as we would in any other place. But I do think, again, that there's been an engagement there where they took it on the chin and they've really looked at trying to improve, genuinely trying to improve, the way in which they deal with complaints. I think that's been true of most local authorities, and the figures demonstrate that. Despite austerity, and despite, perhaps, the expectation that with further pressure on local government budgets a higher level of complaints was inevitable, actually, they've come down, and I think that's good. 

How much do you think the rise and rise of NHS complaints is due to the failure to learn the lessons from a previous complaint?

Well, as I hope I made clear earlier, there are, in fairness to local government, other factors at play there. I think the issue of an ageing demographic, the fact that pressures are increasing—

But the elderly are not the most likely people to complain. We know that. 

We've had a number of issues, a number of public interest issues in particular, particularly in north Wales recently, where a significant number were to do with the ageing population. Prudent healthcare—there is the example there of somebody who unfortunately passed away, an elderly patient who passed away on a trolley, having been bussed on an ambulance from Llandudno to Bangor and back. More recently we had a complaint—and again, perhaps this is an issue about the culture of complaint handling at some of our health boards—about an elderly patient who passed away in Ysbyty Gwynedd. Their daughter pursued the complaint and the daughter worked for Ysbyty Gwynedd, and it says something when people who are part of the system feel that they have to come to my office because the system perhaps isn't doing all it can.

Having said that, I have found some reasons to be cheerful in terms of health learning. We are monitoring this. As I say, health complaints overall are up this year. I've met with some health boards. I meet, certainly, with all those that have improvement officers on a regular basis. I've had more regular meetings with Betsi Cadwaladr because of some of the specific issues that were going on there. And certainly the chief executive—more recently I've met with the director of nursing as well. I think they are genuine about seeking a culture change, and I think often when you go along that journey, things sometimes can get worse before they get better. We saw a substantial increase in the level of complaints for Betsi last year. I'm pleased to report so far this year that that's one of the few health boards where we've actually seen a decrease in numbers. 

So, I do hope that we can see an ongoing improvement when it comes to the culture of complaint handling with health boards. We've done a lot more work with them. We've had a specific seminar, networks and other issues that Chris has led, which has led to more work there. We had a sounding board with the health sector just yesterday, which provides them with a safe space to throw things at us in terms of where they think we are perhaps getting things wrong, or need to reflect a bit, perhaps, on our own performance. So, we're trying to do more, but, again, I think the legislation would help us as well, because we have had some public interest reports more recently where it's not the Government policy that's a problem in terms of the Putting Things Right policy—it's a good policy—it's the issue that sometimes health boards have not been consistent in applying that. That's where the service failure or the maladministration has been. 

10:50

That clearly is an issue, because the complaints that come to you are ones where it's deemed that local resolution has not achieved anything. So, is it that most health boards are just not using the local resolution mechanism to resolve enough of the complaints? 

They're using it more, but as well as the health complaints that I receive, we still receive a substantial number of complaints that are simply about complaint handling, or sometimes something snowballs: it's a relatively minor issue, but it's not dealt with, and because it's not dealt with it spirals, and because there wasn't this—not necessarily an early resolution, but a quick resolution, sitting down, having that duty of candour that I think is referred to in the Government consultation on health, which I also responded to, which I think is very important. So, I think we've got to make sure that that duty of candour is there and that we ensure that there's this less defensive attitude. The last thematic report we did was groundhog day.

We must not be defensive when people have complaints. We've got to respond and be upfront. It's something that we try and preach to ourselves. If we're going to preach that message out there—sometimes people will have issues about our performance. It's quite right that they're able to raise those issues, but we try and encourage that with local authorities as well, because there have been one or two—and these have been public reports—where I felt that they'd been a bit disingenuous now and again, and things could have been done quicker.

It's been quite outrageous occasionally where somebody perhaps has lost a loved one. They're looking for closure. They're looking for closure and people have dragged their feet. That is adding insult to injury at a very, very difficult time for an individual or their family. So, we need to have some humanity around this, and that's what we're trying to do. We're not trying to—. We're trying to provide an independent service. We are providing an independent and impartial service, but we're not looking to find blame where blame doesn't exist, and we want to encourage people to be upfront, to be honest, to make sure that they learn and to make sure that we provide justice sooner rather than later. Slow justice is no justice. 

Before you go on, I think Mick would like to come in on this point. 

Can I just explore a little bit about the defensive culture that you talk about? Firstly, whether you think there is change occurring, because of all the many people I see from time to time, there clearly is still a very significant defensiveness, because people perceive a complaint as being about a blame, and not a failing of process or procedure or resources, or whatever. And also the internal reaction of that with the whole idea of whistleblowing, which is about, basically, exposing early on. And I think probably as Assembly Members we all come across the people who say, 'These things are going on but don't mention my name' et cetera. There's still this very much strong—. How do you tackle that or how do you actually measure how you are tackling that? Because it seems to me that is still a significant cultural point in our public services.

It is a cultural point, and as Peter Drucker famously said, culture eats strategy for breakfast. We need the tools that improve culture, and there are certainly issues that worry me in terms of people being afraid to complain. That's why I'm seeking own-initiative powers; I know that's something we'll discuss again. But certainly, those are used in other places because people might be afraid to complain. Who's afraid to complain or who cannot complain? People who live in rural areas. In rural areas you know the doctor and you know all the local people who are providing that service. It's so much more difficult to make that complaint when you're in a more sparse rural environment. So, I think there is a rurality issue in Wales that we have to look at. There's a vulnerability issue here as well. For all the talk and also the evidence that's been provided, for example, by my colleague the older person's commissioner about what might be going on when it comes to older people's care, her report, which talked about people being given the wrong spectacles, the wrong dentures, all kinds of service failures, I have not seen a significant increase in the number of complaints coming to my office about those types of issues. So, it does raise the question: is there a fear factor here, where there's a lack of availability of care for older people? Are people scared that there'll be repercussions because there'll be a relationship breakdown if they complain about their uncle's or auntie's treatment? So, there'd be some real value in looking at those issues.

Own-initiative would as well allow me to look at whistleblowing. Currently, I am constrained in terms of the complaints that I can deal with. So, it's very much about being reactive. So, if a service user, or somebody close to them, comes with a complaint, I deal with it. I'm looking at Siân again here, because of north Wales issues. Whistleblowing—I never receive—. I received 130 or 140 complaints, at least, last year from users of services in Betsi Cadwaladr. Not one was about Tawel Fan. Not one. 

10:55

Tawel Fan—the mental health institutionalised abuse that has occurred there. Had I received any complaints there from a concerned member of staff, I would not have been able to investigate it because I don't have the whistleblowing powers. So, again, in terms of own-initiative, I'm not saying that I definitely would have thought, 'Ah, right, we'll go and have a look at that specific case', but, certainly, in terms of having those additional powers, it would allow me to make it clear to those people who work in the health service, who work in other public services, who have concerns and can't come to my office currently—I think that would be able to change where they sorted some of those issues.

But there are still reasons to be cheerful. There are people who are more positive and constructive. Some of this is anecdotal, but certainly we've had medical practitioners who've called in junior doctors and asked them to sit down and witness the way in which they've dealt with a complaint, saying, 'I want you to see this. This will happen to you. This is how you should go about it.' So, it does happen, and it's about making sure that, where there's that good practice, it spreads. But I'm afraid, too often, good practice can be a bad traveller, so the more that we can do through legislation and other issues to support it, then I think we will see some improvements. 

Jenny, just before you do come back in, there are a couple of other Members on these particular points, I think. Janet.

Yes. Two of the public interest test reports were obviously ones that I'd had to alert you to. There were some very robust and strong recommendations. And I was asking earlier how those recommendations are then—. So that, in a way, lessons are learnt by the health board so that no other family has to go through that. At any time, do you ever go back and look?

We do all the time, and I'm—. What's cydymffurfiaeth?

Compliance. Thank you. In terms of compliance, we've done an awful lot more. I'm very grateful to my colleagues, Katrin and Chris here, because they've made sure that we've got a lot tougher in terms of compliance over the last few years. And I've been told—actually Katrin told me—that next year's theme is 'compliance'. We're going to have a seminar on compliance in February, and it's going to be a big theme for us. And I want to do more. I do go and visit all health boards regularly, but, specifically given that we had a number of issues coming up with specific hospitals in north Wales over the past year, then I think, next year, in terms of that compliance theme, I want to go back up north and I want to make sure that compliance has occurred in those specific areas.

That's reassuring to hear, because, yesterday, I had to raise with the First Minister about people's— you know, people with health and social care, in terms of the Mental Health Act 2007, and whether people are actually complying with that in terms of treatment and care plans for very vulnerable people. And, certainly, I'd be very interested to watch how you go forward in terms of compliance. 

Thank you. With regard to the Bill and the investigatory powers, and the issue around whether there's sufficient weight attached to social care and palliative care in Part 3 and Part 5, do you feel that you would need to have more weight attached to those elements within the Bill?

11:00

No, I don't believe—. I think it's fine, as I think the Chair of the Finance Committee explained in the previous session.

In actual fact, we will be hearing from Nick on the Bill next week, but today we need to stick with the annual report and associated matters. Jenny, did you want to continue?

Sticking with the annual report and the persistent increase in the volume of complaints, complaints upheld and public interest reports that you've had to do in Betsi Cadwaladr, is it possible to give any insight into the drivers around this? Is it the failure to empower front-line staff to resolve complaints there and then, rather than having to escalate them? Is it because there's been so much publicity about Betsi Cadwaladr that it's become a political football and there's a way in which everybody piles in and it's difficult to turn the corner there? Or is it just that Betsi Cadwaladr's local resolution of complaints is just completely inadequate, still?

I've been to see some of the leaders of Betsi Cadwaladr on a regular basis. I've met the chief executive, the chairman, director of nursing, and I've shared with them not just the quantitative issues in terms of numbers but some of the qualitative issues around complaints happening. I do think that their desire to see an improvement is genuine and I think some of the changes that they are making are to be welcomed. I think that the last time I had a conversation with the director of nursing, some of the innovation there was going back to the good old tradition of having a matron on the ward who would resolve things there and then. That's a great example of early resolution and it reassures people. That's a type of public service delivery that I think resonates with people.

We've worked with them and we've worked with the other health boards as well to ensure that there's good practice in terms of ensuring that front-line staff are empowered, that they know when to escalate, they know when to deal with things. But also I think governance, not just for Betsi Cadwaladr but for all health boards, is absolutely critical. One of the challenges we have for all of them is: right, who's looking at these complaints? Is it just somebody down the corridor or in another building somewhere that gets to deal with all the grief? Or is the chief executive thinking, 'Right. This is providing me with insight. This is telling me where I've got systemic issues in a different part of the health board'? Particularly a big health board—you know, the whole of north Wales—'Right, what's going on in Wrexham today? What's going on in Llandudno? What's going on in some of the community hospitals?'

So, I think there's more of that going on, but, again, I think that is essential for all of those health boards. As I say, as we speak, the most recent numbers I have, Betsi Cadwaladr is the only health board this year that's had a reduction. It's a small reduction, but it's a reduction nonetheless, a welcome reduction, in the number of complaints coming to my office. So, I hope that this is the beginning of a greater pace of improvement. But, as I say, there are other things that you will have the opportunity to legislate, I hope, on, in terms of providing scrutiny to my Bill, and other things that I hope we can discuss next week that would make a real difference.

Okay. So, to dwell on the positives, could you just explain why Cardiff and the Vale no longer needs an improvement officer attached to it?

Yes. We initially designated Cardiff and Vale and, I think, another five organisations to be improvement bodies. This was a new departure. Chris and I agreed this early on, when we both started in the job. We thought it was a sensible innovation given the fact that such a huge number of our complaints were coming from a significantly small number of organisations. Cardiff and the Vale's figures improved significantly quickly. We also felt that their response times improved significantly quickly as well. However, if things were to reverse—. This is not a one-way street. If we were to see a deterioration, then we would certainly seek the flexibility to designate them again. We designated Cwm Taf because their population share of complaints was significantly above the average. Since then, as well, we've also designated Powys council because there are specific issues there with complaints handling.

11:05

Okay. Obviously, though, we continue to need to be concerned about all this. The new framework you've established for your own organisation in relation to decision and investigation times—80 per cent of obtaining of information within six weeks looks like a success story. Is that what, or—? Because, presumably, there will always be some facts that a consultant is refusing to hand over, or whatever it might be. Did you think that is—? Is that the target in your mind, or would you regard that as still not good enough?

I'm going to ask Chris to answer this question, but before I do—and, again, this was down to him and Katrin; it's a brave thing that they've done. In the past, we used to stop the clock when somebody stopped providing us with information. That is not complainant centred. So, what we're trying to do through this new system is to see it through the eyes of the complainant, who says, 'Look, you say you've been waiting a year; I've been waiting 18 months.' So, this is down to Chris and Katrin, so they might want to answer that one.

Yes. So, the introduction of the new approach was to make sure that we were seeing things in the same way as the complainant, as Nick has said, and also to be a bit more sophisticated so that we did actually differentiate between different outcomes of the initial assessment of a complaint. And if you wait eight or nine weeks and are told that the body you've complained about isn't within our jurisdiction, you may think that six or nine weeks is a bit of a long time to wait for that answer. So, what we've tried to do is be much more specific about what targets you would expect for each outcome. Sometimes it's very clear cut. If somebody complains about British Gas, that's not within our jurisdiction—you know quite immediately that that isn't the case. There are occasions when the jurisdiction is a bit more complex, for example, where there's a mix of private and public service, or where it's not quite clear who's commissioned what. So, sometimes, it can take a while.

The logic of the timescales reflects the amount of work involved in getting there. We have achieved more than 90 per cent on the first three of the targets, which are about premature complaints or outside jurisdiction, about a decision not to investigate following a detailed assessment, and seeking early resolution within nine weeks. The reason that nine weeks is longer is because sometimes it takes a while to work out what the resolution should be. But, very often, it takes a few weeks for the body to consider that suggested resolution and agree.

I think that leads in to the last one, which is about decision to start an investigation, and our target is within six weeks of having all the information that is needed. Last year, it was 80 per cent. We have improved on that this year. I think it's 90-something per cent, 93 per cent, around that, at the moment, and we are working to improve that. There is a tension there, though, because the one before is seeking early resolution within nine weeks. If that early resolution fails—in other words the body declines to implement what we've agreed—then, obviously, nine weeks have passed and we then have got to go to investigation. So, on those ones, we're not going to hit the six weeks because we're already at nine weeks, if you're with me. But that is something we are working on to try and make sure that the initial decision is as quick as it can be. And we are focusing our measurement of our own performance as an organisation, but also looking at how staff perform against those targets so that we can help them to achieve well.

Okay, I think we need to move on at this stage, Jenny. We've still got a fair bit to get through. Rhianon, improving services.

Thank you. With regard to the impact of improvement officer roles since they've been introduced, how would you assess them? And, with regard to clarification, how many organisations are you currently assisting?

I would say that, to some extent, it's still too early to tell. Cultural change takes a long time. However, we have seen some positive issues. First of all, I think the engagement, more generally, with health boards and with the two local authorities that we've designated has been positive. Secondly, I certainly think that the figures so far from Ceredigion, in terms of the proportion upheld from local government, have been incredibly positive, so I certainly welcome that. I think, when the Finance Committee looked at our estimate for the next year, they welcomed what we'd done in terms of developing the improvement role, and suggested that we could extend it to other areas. That is something that I think we would find challenging at the moment, to be honest, because if we were to find resource, we would probably try and intensify the engagement that we're having with those improvement bodies. Currently, we have a cadre of improvement and investigation officers. They have to deal with day-to-day investigations and the improvement relationship. They can only give, perhaps, one day out of every five to the cultural development. So, if I had more resource, I might like to free them up to do two, three, four, five days a week on cultural improvement, because I think there's probably enough demand and need for them to do that, rather than spreading the butter or spreading the jam so thin that it has less impact on improvement more specifically.

11:10

So, would that be purely capacity? Yes. Thank you. With regard to the improvement role, obviously it's there for a reason. Do you see any blurring of boundaries in terms of your role and in terms of that improvement agenda? Or is it completely—

No, but I was—. If it was, I wouldn't say controversial, but it might have been radical for people that had, perhaps, a traditional view of what an ombudsman does, which is basically: you're neutral, you deal with complaints, you don't do anything else. That is probably the traditional view of ombudsmanry, certainly in the United Kingdom. It's changing. It's changing because of what's going on in Scotland, in Ireland, and globally—not just in Europe but other parts of the world as well, where they do have an input into the broader system. But what we've been careful to do from the beginning—and Chris is chief operating officer and the way in which he's supported improvement officers, as has Katrin as well—is to make sure that that line doesn't get blurred. The fact that you're dealing with a specific body in our jurisdiction, trying to really find out what drives their culture, what their governance is like, what their leadership is like—don't go native. Don't go native, and don't get sucked in either, so that you're dealing disproportionately with them and with their complaints. I think we've walked that line pretty well, but we're aware of the fact that it's a risk you've got to manage.

I think the general approach is that the improvement officers do not deal with complaints about the body they're an improvement officer for, so that there is a degree of independence. They're not going to be swayed on an individual case decision, because they won't be involved in that. They're actually stepping back and looking at the overview.

So, do you feel your processes, systems and frameworks around that are adequate?

Yes, I think they are, and they do maintain that independence.

Okay. Could I just ask, in terms of the seminar on health complaints, what sort of outcomes you would envisage resulting from that?

Well, I can report on the outcomes because it happened some months ago, the seminar, and it was a huge success. I didn't attend, but Chris was there, and I'm very grateful to him for representing me, and he's got, I think, some good news to report.

Yes. It was a hugely positive event. We weren't quite sure how it would go, but it was well attended from across Wales. What struck me was, quite apart from any detail, that there was an almost tangible feeling within the room that there was scope to improve, that there was a willingness to work together and to learn from each other. One of the key things that came out of the seminar was that, I think, nine networks had been set up for health boards across Wales, and the intention of those networks is to try and bring together people who are doing similar roles in terms of complaints handling or claims or investigations into complaints, so that they can share experience, share best practice, and actually support each other in doing their work better, and also where they think there's a need for change. For example, if they think there's a benefit in changing the 'Putting Things Right' guidance or regulations, that that is then a means of actually focusing those voices into a single voice that can actually try and precipitate some change.

So, it was very positive: suggestions about how you can make sure people own the complaints they're involved in—clinicians and complaint handling; the networks that I've just talked about; clarity about responsibilities and different ways of having responsibilities in different health boards and discussion about whether that could perhaps be reviewed and changed; and, as I said, some initial thoughts about how PTR could be tweaked and 'Putting Things Right' could be changed to better suit the circumstances. What struck me was how positive people were, and that, actually, there was scope to change and there appeared to be a willingness to do that. We will see how that translates into actual action and actual improvement, but it was very positive.

11:15

Okay, thanks for that. We'll move on then, and Janet on the code of conduct.

Yes, code of conduct complaints. Nick, could you expand on the reasons why there was a decrease in code of conduct complaints received in 2016-17 but an increase in complaints reaching full investigation?

Yes. I hope the reason for that—and I was very pleased to see the decrease—. Normally, code of conduct complaints, funnily enough, spike just before elections. [Laughter.] A number of them in the past have been vexatious, blinderus. My classic example of one that I rejected on the issue of being vexatious was pen clicking. I once had a complaint that a councillor was clicking their biro in an aggressive manner. Now, given what's going on in terms of broader issues of public interest, I don't think any of you, or indeed any of your colleagues in the Finance Committee, would be very pleased with me if I was spending public money investigating the rhythm of pen clicking. So, it's not something that we do, but something that we have done—and I'm indebted to my colleague Katrin here for this—is develop the public interest test. So, that is very, very clear. We are not going to waste resources on vexatious low-level issues, but where there is a misuse of power, where there is bullying, where there is corruption, where there is the use of public office for private gain, then we will certainly throw the book. I think that's why it's happened. Katrin, would you like to expand on that?

Yes. We certainly are applying that public interest test throughout. What we've done is set up a code of conduct advisory group so we continuously review each stage of the investigation and then if at any time we find that the public interest test isn't met—for example, if we've had information that changes the picture, which often happens because, in the beginning, when we start investigations, we only go, obviously, by what is in the complaint plus whether the accused member has responded. So, when we find then, when we're reviewing, that there is no need to continue with the investigation, we do either discontinue or make a finding that there's been no breach or that no further action is required.

So, I think the full investigations have gone up slightly last year, but I think you'll see from the report that more of the investigations are concluded in under six months, and that's why—because we have that review process embedded in our investigation process for complaints.

Can you just define for me: what is your public interest test? How do you define it?

It's a two-stage test. First, does the complainant come forward with some direct evidence of a breach of the code? If yes, we go on to consider then: is the matter serious enough to investigate in the public interest? So, for example, in Nick's guidance to elected members, he outlines the factors that we take into account. Is it a case of bullying or harassment, discrimination or, as Nick said, using office for personal gain? Is it something where, really, the complaint, if proven, would knock confidence in public standards in Wales? So, it's quite a high threshold, and it's been quite effective to knock out some of the lower level complaints.

Just on that one, is there any additional detail on the reasons for the increase in the proportion of complaints you've received that are related to matters of disclosure and registration of interests—23 per cent in 2016-17 compared to just 14 per cent in 2015-16?

I don't think there is a particular problem in the disclosure of interests regime, because, if you look at the cases that we did refer through to local standards committees and the adjudication panel for Wales, they weren't actually about the registration and disclosure of interests. Sometimes there is confusion on the part of members about the interests regime. On occasion, then, we've perhaps started an investigation, decided it didn't need to go any further, but recommended the monitoring officers provide some training to members, particularly town and community council members, on this. But, certainly, although the complaints through the door last year more were about interests, the ones that went through for hearings weren't actually about interests. So, I don't think there's a particular problem about that.

11:20

More a lack of knowledge. Have you thought that, maybe, going forward, there needs to be more training on members' interests?

Yes, we can do—we do try and deal with it very clearly in our guidance that Nick issues. It is quite a complicated area, because of the difference between personal and prejudicial interests. I know the monitoring officers are keen. But I know they have done a round of training following the elections, and Nick did a video, not on interests, but generally on the application of the code. But we can certainly look to do more on that.

You mentioned earlier—you didn't mention it much, but it did come up—the sounding board concept that you've been doing in the last year or so. How do you think that's been going?

It's been going pretty well. It's a concept that I borrowed from Scotland. My colleague the previous ombudsman developed it there, and his aim—mine is much the same—is to provide a safe space for bodies in jurisdiction to tell us what they really think about not just what we do, but how we do it. It's been useful in terms of clarifying certain issues.

We've got three sounding boards: one on health, one on local government services and one for third sector and advocacy bodies. So, the health one's been very useful. I think we've had two or three of those to clarify occasional misunderstandings in terms of what's expected of the community health council in terms of the time limits that we will put on health complaints, in terms of the way in which we would deal with a counter-view coming from a health board when it comes to the role of the medical directors. So, that's been useful. Local government has only met, I think, once, but, again, that's been useful.

I have found particularly useful the one that we have with the users of our services and with third sector bodies—so, those people who deal with tenants, or the homeless, or people suffering different disabilities—because they can really give us feedback. Sometimes, you think you're speaking human, but, actually, to some of those groups, we're still speaking another language. So, we've had great feedback from them in terms of what we can do to be as accessible as possible, particularly to vulnerable groups, which are perhaps some of those groups who need our services the most, and to make sure that we really are speaking human and being as understandable and as appropriate as we can for people who might be in quite vulnerable circumstances. 

It can be quite challenging. It's good for the soul to get some of this feedback, but I think, overall, it does us good.

I'm just going to bring Siân Gwenllian in on this point.

Ar y pwynt ynglŷn â'r arolwg bodlonrwydd, roedd 12 y cant ddim yn hapus â'ch swyddfa chi, wedi derbyn 62 o gwynion ynghylch eich swyddfa yn 2016-17, sef yr un nifer a ddaeth i law'r flwyddyn gynt, sydd yn dangos nad oes llawer o wella wedi bod yn lefel y bodlonrwydd. A fedrwch chi egluro beth ydy'r cwynion yna? Pam nad yw pobl yn hapus?

On the point with regard to the satisfaction survey, 12 per cent stated that they weren't content, and you received 62 complaints with regard to your own office in 2016-17, which is the same number as the previous year and which therefore demonstrates that there has not been much improvement in the level of satisfaction. Could you explain what those complaints are and why people are not satisfied?

Mae yna nifer o ffactorau yn y fan yna, Siân, ond buaswn i'n dweud yn gyntaf ei bod hi'n od iawn ein bod ni wedi cael yn union yr un nifer ddwywaith mewn dwy flynedd, sef 62. Ond, wrth gwrs, mae niferoedd y cwynion yn gyffredinol wedi cynyddu yn ystod y ddwy flynedd yna. Felly, mae'r 62 yna yn ganran llai eleni na beth oedd hi'r flwyddyn gynt, sy'n beth positif. Hefyd, mae'r nifer lle'r ydym ni wedi ffeindio bod rhywbeth wedi mynd o'i le wedi lleihau o 15, rydw i'n meddwl, y flwyddyn gynt, i 11 eleni.

Ond pan mae'n dod i'r themâu yn y rheini, rydw i'n meddwl eu bod nhw wedi eu rhestru yn yr adroddiad blynyddol.

There are a number of factors there, Siân, but, first of all, it's very odd that we've had the exact same number in two years, namely 62. But, of course, the number of complaints generally has increased during those two years. So, that 62 is a smaller percentage this year than it was the previous year, which is positive. Also, the number where we found that something has gone wrong has reduced from 15, I think, the previous year, to 11 this year.

But when it comes to the themes, I think they are listed in the annual report.

Gwnawn ni edrych ar fanylion hynny, ond efallai byddai nodyn gennych chi jest yn egluro beth ydy'r breakdown o'r themâu a beth ydy'r materion sydd yn codi cwyn—. Ac, eto, rydych chi'n dal yn deisyfu cael mwy o bwerau, sef pwerau dros y Gymraeg a phwerau yn sgil y Bil newydd. Oni fyddai'n well i chi ddatrys y problemau mewnol ynglŷn â'r cwynion yma mae'r cyhoedd yn eu gwneud cyn ymestyn, byddai rhai'n dweud, er mwyn creu rhyw fath o ymerodraeth? 

We'll look at the detail of that, but perhaps a note from you just explaining what the breakdown of the themes is and what the issues that have been raised are—. Again, you still want further powers, including powers over the Welsh language, and powers as a result of this new Bill. Wouldn't it be better for you for you to solve these internal issues with regard to these particular complaints before extending, some would say, just to create this empire?

11:25

Wel, nid wyf yn trio creu unrhyw fath o ymerodraeth, ac nid wyf eisiau bod yn frenin cwynion. 

Well, I'm not trying to create any kind of empire, and I don't want to be the king of complaints.

Can I say as well, as I said earlier, obviously, we'll go on to scrutiny of the Bill when you appear before us in due course? We don't need to stray too much into that territory.

Ocê. I ymateb i'r cwestiwn, rwy'n gobeithio ein bod ni wedi delio yn effeithiol iawn gyda'r nifer o gwynion sy'n dod i'n swyddfa i. Fel rydych yn gweld, yn ystod y flwyddyn diwethaf rydym ni wedi gwneud 16 y cant yn fwy na'r flwyddyn gynt, gyda mwy o gwynion yn dod i'r swyddfa. A pan mae'n dod i'r cynnig ynglŷn â'r iaith Gymraeg a thrio creu rhyw fath o ymerodraeth, gallaf egluro rŵan y rheswm pam wnes i ei wneud o: datrysiad cynnar. Nid wyf erioed wedi beirniadu comisiynydd yr iaith. Rwy'n beirniadu'r system. Pam? Nid yw'n deg ar y comisiynydd, nid yw'n deg ar hyn o bryd ar yr achwynydd o ran yr iaith Gymraeg, nac i'r cyngor chwaith os yw'n cymryd chwe mis—chwe mis—i ymchwilio i'r ffaith bod rhywun wedi camsillafu un gair neu'r ffaith bod y comisiynydd yn cael ei gyrru i'r tribiwnlys os yw'n penderfynu peidio ymchwilio. Ar hyn o bryd, mae'n methu gwneud datrysiad cynnar ei fod o'n ultra vires. Rwyf o blaid y grym yma oherwydd mae'n bodoli yng Ngwlad y Basg, Catalonia, Iwerddon a nifer o lefydd eraill. Os yw'n gweithio yn fanna, os oes hawliau ar gael yn fanna, rwy'n meddwl y dylem ni gael yr un hawliau ar gyfer Cymry Cymraeg.  

Okay. To respond to the question, I hope that we have dealt effectively with the number of complaints that have come to our office. As you see, over the last year we've done 16 per cent more than the previous year, with more complaints coming to the office. And when it comes to the proposal on the Welsh language and trying to create some kind of empire, I can explain now the reason why I did that: early resolution. I've never criticised the Welsh Language Commissioner. I am criticising the system. Why? It's not fair for the commissioner, it's not the fair for the complainant about the Welsh language, or for the council either if it takes six months—six months—to investigate the fact that somebody has misspelled one word or the fact that the commissioner is sent to a tribunal if she decides not to investigate. At present, she is unable to undertake early resolution, that it's ultra vires. I'm in favour of that power because it exists in the Basque Country, Catalonia, Ireland and other countries. If it works there and if the rights are available there, I think we should have the same rights for Welsh speakers.  

Ond, wrth gwrs, y Cynulliad ddylai benderfynu hynny; nid chi fel yr ombwdsmon ddylai ddweud eich bod chi eisiau mwy o bwerau. Mae fyny i'r Cynulliad edrych ar y sefyllfa, ac nid yw lobïo y Llywodraeth yn briodol yn yr achos yna.

But, of course, it's the Assembly that should be deciding that; it's not your place as the ombudsman to say that you want more powers. It's up to the Assembly to look at the situation, and lobbying the Government isn't appropriate in this particular case.

Rwy'n derbyn hynny, Siân, ond pe bawn i wedi lobïo'r Llywodraeth mi fuaswn i wedi sicrhau bod y cynnig tu fewn i'r Papur Gwyn; doedd o ddim. Y cwbl rwyf wedi ei wneud yw ymateb i ymholiad y Llywodraeth, ac rwyf wedi ei wneud 14 o weithiau.

I accept that, Siân, but if I'd lobbied the Government, I would have ensured that the proposal was in the White Paper, and it wasn't. All I've done is respond to an inquiry by the Government, and I've done it 14 times.  

Wel, rydych wedi gwneud mwy nag ymateb i'r ymgynghoriad, ond fe wnaf adael hynny yn fanna.

Well, you've done more than respond to the consultation, but I'll leave it there. 

Well, I think we've had a fairly robust and extended exchange on these issues. As I said earlier, in terms of the possible passing of legislation to increase the ombudsman's role and powers, obviously we'll be hearing from Nick and taking evidence from Nick, I think, next week. So, we will return to those matters. 

May I just thank Nick very much for coming in this morning to give evidence, and also Chris and Katrin? You will be sent a transcript to check for factual accuracy in due course. Diolch yn fawr.

Diolch yn fawr iawn i chi gyd. 

Thank you very much to you all.

Thank you very much. Thank you.

4. Papurau i’w nodi
4. Paper(s) to note

Okay, then, item 4 on our agenda today is papers to note. We have four papers to note, some of which we will possibly return to when we discuss our draft budget report later on the agenda. Is committee content to note those papers at this stage? Yes. Thank you very much.

5. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
5. Motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

The next item, then, item 5 is a motion under Standing Order 17.42 to exclude the public from the remainder of the meeting to discuss the evidence that we've heard this morning, and also the draft budget report. Is committee content to pass that motion? Okay, thank you very much. We will move into private session. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:29.

Motion agreed.

The public part of the meeting ended at 11:29.

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