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Y Pwyllgor Cydraddoldeb, Llywodraeth Leol a Chymunedau

Equality, Local Government and Communities Committee

07/12/2017

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Janet Finch-Saunders AM
John Griffiths AM Cadeirydd y Pwyllgor
Committee Chair
Rhianon Passmore AM
Sian Gwenllian AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Angela Hughes Cyfarwyddwr Cynorthwyol Dros Dro ar gyfer Profiad y Claf ym Mwrdd Iechyd Lleol Prifysgol Caerdydd a’r Fro a Chadeirydd y Grŵp Gwrando a Dysgu o Adborth Cymru Gyfan
Acting Assistant Director of Patient Experience Cardiff and Vale University Local Health Board and Chair of the All-Wales Listening and Learning from Feedback Group
Chris Vinestock Cyfarwyddwr Ymchwiliadau a Phrif Swyddog Gweithredu, Ombwdsmon Gwasanaethau Cyhoeddus Cymru
Director of Investigations and Chief Operating Officer, Public Services Ombudsman for Wales
Denise Williams Uwch-reolwr Adrodd Allanol, Bwrdd Iechyd Lleol Prifysgol Betsi Cadwaladr
Senior External Reporting Manager, Betsi Cadwaladr University Local Health Board
Disa Young Pennaeth Materion Allanol, Cymdeithas Gofal Iechyd Annibynnol Cymru
Head of External Affairs, Welsh Independent Healthcare Association
Jacky Jones Dirprwy Gadeirydd Cymdeithas Gofal Iechyd Annibynnol Cymru a Chyfarwyddwr Gweithredol BMI Werndale
Deputy Chair of Welsh Independent Healthcare Association and Executive Director of BMI Werndale
Katrin Shaw Cyfarwyddwr Polisi, Materion Cyfreithiol a Llywodraethu, Ombwdsmon Gwasanaethau Cyhoeddus Cymru
Director of Policy Legal and Governance, Public Services Ombudsman for Wales
Marie Anderson Ombwdsmon Gwasanaethau Cyhoeddus Gogledd Iwerddon
Northern Ireland Public Services Ombudsman
Nick Bennett Ombwdsmon Gwasanaethau Cyhoeddus Cymru
Public Services Ombudsman for Wales
Rosemary Agnew Ombwdsmon Gwasanaethau Cyhoeddus yr Alban
Scottish Public Services Ombudsman
Ruth Friel Pennaeth Profiad y Claf, Bwrdd lechyd Prifysgol Cwm Taf
Head of Patient Experience, Cwm Taf University Health Board
Shan Kennedy Pennaeth Ymchwil ac Iawndal, Bwrdd Iechyd Lleol Prifysgol Betsi Cadwaladr
Head of Investigation and Redress, Betsi Cadwaladr University Local Health Board

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Chloe Davies Dirprwy Glerc
Deputy Clerk
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

Okay, everyone, welcome to this meeting of the Equality, Local Government and Communities Committee. We will be taking further evidence on the Public Services Ombudsman (Wales) Bill this morning. But, firstly, as far as item 1 of our agenda is concerned, we've received apologies from Bethan Jenkins, who will not be able to be with us today. Jenny Rathbone is with us after lunch but not before, Rhianon Passmore should join us later this morning, and we've had apologies from Gareth Bennett. So, we're a bit depleted to begin with, but, hopefully, that will change as we—

It's a north Wales committee, Chair, apart from your good self, of course.

—hopefully that will change as we go through our business. Are there any declarations of interest? No.  

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

We'll go on to item 2: evidence session 2 of the Public Services Ombudsman (Wales) Bill. May I welcome Nick Bennett, Public Services Ombudsman for Wales, Katrin Shaw, director of policy, legal and governance, and Chris Vinestock, director of investigations and chief operating officer? Bore da i bawb.

Perhaps I might begin, then, with the first question, which regards the proposals for own-initiative investigations. I wonder, ombudsman, if you could explain to the committee why the own-initiative powers are necessary within the Bill, and what they would enable the Public Services Ombudsman for Wales to do that cannot be done under the 2005 Act. 

Okay, thank you. Well, I think, first of all, if we have the ambition to see world-class public services in Wales, then I think we've got to be ready to adopt what is world-class good practice. So, I think that the provisions for own-initiative in the Bill would be a small step in the world of ombudsmanry because it's pretty mainstream—you know, it's not a big deal internationally. They tend to complement the reactive powers that other ombudsman schemes have.

I was at a meeting looking at own-initiative with colleagues from Europe a month ago, and I took the opportunity to ask them what was the downside, if you like, of having own-initiative powers and had there been any challenges. The oldest ombudsman scheme in the room was the Swedish scheme, the original scheme, which was established in 1807, and I'm glad to say the Swedish ombudsman was able to assure me that they'd had no challenges since 1807.

I would hope that own-initiative could make a real difference, though, for people in Wales. It's about their rights rather than my powers, or, indeed, the powers of the institution. So, I think there are a number of areas where we feel we would be able to do more for public service users in Wales. So, first of all, we would be able to extend investigations where we discover systemic failures. Currently, when I publish public interest reports—section 16 reports—I am, in effect, crossing my fingers and hoping that other public authorities will take note of those systemic failings, which might also exist within their authorities. It also would allow us to deal with other issues that we might discover during the course of an investigation without seeking a further complaint. It would also have the benefit of us being able to do more for those people who don't complain. I think I touched on this last week—and given that we've got good north Walian representation here today, those people who, perhaps, in rural areas are frightened and feel awkward about complaining because they know personally the people who are providing the services, and those people who are voiceless for other reasons. Who complains on behalf of the homeless and the services that they have a right to expect? Certainly, I'm concerned about the number of complaints that we're not receiving from older people who are currently in care. Despite the fact that we've had powers extended there, we're not seeing many complaints come from that area.

Then, I think the other critical issue for me would be one of whistleblowing. Currently, if a member of staff was to contact our office to say that they'd discovered some serious failings, there's nothing that we could do about it unless we received a complaint from the service user rather than the staff member who was involved in that particular public body. So, I think there are a number of good reasons why we do this. In terms of the systemic work, the thematic work that we might seek to do, I think that would have to be very targeted, and we're talking about maybe one, at most two, studies a year. I think we'd have to be very clear that this wasn't duplicating the work of other bodies in Wales, that it was adding value and that there was a clear case for investigating that issue because it was something that's unlikely to be investigated by others, perhaps in a sector that isn't particularly regulated. So, I think that's really where we're coming from on this.

09:20

Okay. And could you then tell the committee whether you believe the Bill as drafted would provide sufficient safeguards to ensure that those own-initiative powers were exercised appropriately and in a reasonable manner?

I think that they do. Certainly, I'll put it this way: I can live with the provisions in the Bill. There might be some who perhaps have a more purist view that actually my accountability is to the Assembly and only to the Assembly, and might feel slightly uncomfortable with the fact that the provisions give the right to Ministers to set the criteria. But I don't have a problem with this. I think that anyone who has own-initiative has to exercise that with responsibility, with measurement and restraint. So, some might feel it's too prescriptive currently, but I understand why those provisions are in the Bill and I could live with them.

You mentioned the possibility of duplication and how hopefully that wouldn't occur, but there is concern in terms of possible duplication and indeed confusion in terms of the office-holder's potential exercise of the own-investigation powers. You've set out what your approach would be that hopefully would guard against those possibilities, but of course we're dealing with the office and the structures here that will potentially, at least, continue for some time and various ombudsmen may exercise those powers. Do you recognise that there is some potential difficulty there in terms of duplication and confusion? Might there be investigations taking place on the same territory, as it were, by the ombudsman and by another regulator or commissioner?

I think there's certainly danger for that type of duplication now, because I have thematic powers. I've exercised those powers twice. One thematic report was on out-of-hours services and the other was on general complaint handling. Certainly, on both of those themes, and the next likely thematic report that we'll do, we certainly do check with other regulators and other corporation soles to make sure that we're not duplicating the work that they do. I meet regularly with all the other commissioners and the auditor general. In fact, we've got a meeting this afternoon. So, we do make sure that there's a proper level of co-ordination.

I can see why the safeguards are in the Bill, because we've got to differentiate, I think, between individuals, office-holders, and then the office itself. I am now halfway through my term of office, so it's important that this is judged in terms of what it does for the institution rather than what I might do with it personally, because in three and a half years I certainly will not be doing the job. Ultimately, the Assembly retains the ultimate sanction because in order to do the job, I have to retain the confidence of the Assembly, and I think it's a clear ruling: if I misbehave in office, then the Assembly can sack me.

09:25

Jest eisiau ymchwilio ychydig bach mwy i'r meini prawf yma. Rydych chi'n eu gweld nhw'n eithaf caeth, ond buasai rhai pobl yn dadlau, efallai, eu bod nhw'n rhy benagored: hynny yw, eu bod nhw'n rhoi gormod o bŵer a gormod o allu i chi fynd ar ôl—nid chi yn bersonol, ond unrhyw ombwdsmon i'r dyfodol. A dyna fydd rhaid i ni feddwl amdano fo: sut fydd y pwerau yma yn cael eu defnyddio i'r dyfodol? Mae perig, efallai, eu bod nhw'n mynd i gael eu camddefnyddio oherwydd nad ydynt yn ddigon caeth ynglŷn â lle rydych chi'n cael mynd a pha fath o gwynion sydd yn briodol i fynd ar eu holau nhw. Beth ydy eich ymateb chi i hynny?

I just want to investigate further into these criteria. You see them as being quite restrictive, but some people would argue, perhaps, that they're too open-ended: that is, that they give too much power and too much ability for you to go after—not you personally, but any ombudsman in the future. And that's what we'll have to think about: how will these powers be used in future? Perhaps there's a risk that they might be abused, because they're not restrictive enough with regard to where you can go and what sort of complaints are appropriate to investigate. What's your response to that?

Rydw i'n derbyn hynny, Siân. Mae'n rhaid inni daro'r cydbwysedd yn rhywle, a dyna pam rydw i'n meddwl eu bod nhw'n rhesymol. Nid oes gennym ni ddim problem gyda nhw. Felly, rydw i'n hapus. Nid ydw i'n trio pwsio yn eu herbyn nhw o gwbl.

I accept that, Siân. We need to strike a balance somewhere, and that's why I think that they are reasonable. We have no problems with them. So, I'm happy. I'm not trying to push against them at all.

Ond mi fyddech chi, efallai, yn dadlau y dylen nhw fod yn fwy penagored.

But you would, perhaps, argue that they should be more open-ended.

Wel, yn y byd delfrydol, ond rydw i'n gobeithio fy mod i'n bragmataidd, ac rydw i'n derbyn bod rhaid cael rhyw fath o griteria, felly rydw i'n—

Well, in an ideal world, but hopefully I am pragmatic, and I do accept that we need some kind of criteria, so I—

Ond a ydyn nhw'n ddigon caeth i'r dyfodol?

But are they restrictive enough for the future?

Wel, rydw i'n meddwl y byddai'n anodd cael rhywbeth sy'n fwy caeth na beth sydd yna ar hyn o bryd oherwydd, ar ddiwedd y dydd, mae'n bwysig bod yr ombwdsmon yn annibynnol, ac mae'n anodd iawn bod yn annibynnol os ydych chi'n cael criteria mwy caeth sy'n rhoi mwy o rym i Weinidogion newid y criteria bob hyn a hyn.

Well, I think it would be difficult to have something that is more restrictive than what exists currently because, at the end of the day, it is important that the ombudsman is independent, and it is difficult to be independent if you have more restrictive criteria that give more power to Ministers to change the criteria once in a while.

Mae'n sôn am gael hawl i ymchwilio i unrhyw beth y byddai person dan anfantais yn debygol o ddioddef o ran anghyfiawnder. Wel, mae anghyfiawnder i un person yn wahanol i anghyfiawnder i berson arall, onid ydy? Mae rhai o'r termau yma yn agored i gael eu dehongli mewn ffyrdd gwahanol gan bobl wahanol. Nid ydw i'n siŵr a ydy'r geiriau yma yn ddigon caeth.

It talks about a right to investigate anything that a disadvantaged person would be likely to suffer in terms of injustice. Well, injustice for one person is different to injustice for another person. Some of these terms are open to be interpreted in different means by different people. I'm not sure whether these words are restrictive enough.

Rydw i'n meddwl eu bod nhw'n help, mewn ffordd, oherwydd rydw i'n meddwl os ydym ni'n sôn am y ffaith—. Mae'n rhaid i'r pwerau yma gael eu defnyddio ar gyfer pobl sydd o dan anfantais neu'n mynd i gael anghyfiawnder, felly mae'n rhaid i mi brofi hynny. Ac mae hynny'n golygu wedyn—. Roeddwn i'n sôn o'r blaen am, efallai, gwasanaethau ar gyfer y digartref neu ar gyfer yr henoed—pobl sydd ddim yn gallu cwyno dros eu hunain. Felly, rydw i'n meddwl bod y pwysau, wedyn, ar bwy bynnag sydd yn y swydd i brofi bod yna achos dros wneud hynny. Ac mae hynny, wedyn, yn golygu bod rhaid i ni brofi bod yna destun o safbwynt diddordeb cyhoeddus, ac rydw i'n meddwl bod hynny'n bwysig.

I think that they are a help, in a way, because I think that if we are talking about the fact—. These powers need to be used for people who are disadvantaged or will face injustice, so I need to prove that. And that means, then—. I was talking previously about, perhaps, services for homeless people or for elderly people—people who can't make their own complaints. So, I think the pressure, then, is on whoever is in the post to prove that there is a case for doing so, and then that means that we need to prove that there is public interest. And I think that that's important.

Ond mae hynny'n mynd i fod yn digwydd ar ôl i rywbeth ddigwydd. Nid oes, ar hyn o bryd, unrhyw ddarpariaeth i gael trafodaeth neu ymgynghoriad o flaen llaw. Hynny yw, fe fyddai'n fater o graffu ar bethau sydd wedi digwydd ac wedyn dwyn i gyfrif yn ôl hynny, felly. Ond nid oes darpariaeth—. Mae o'n gwbl i fyny i'r ombwdsmon i gychwyn rhywbeth yn ôl y meini prawf. Os oes yna rywun sy'n teimlo, 'O, nid ydy hynny'n cyd-fynd â'r meini prawf', lle maen nhw'n mynd efo'r gŵyn yna—ydych chi'n deall—cyn i'r achos ddod yn weithredol, mewn ffordd?

But that is going to happen after something's happened. At the moment, there is no provision to have a discussion or a consultation beforehand. That is, it will be a matter of scrutinising issues that have happened and then to call into account. But there is no provision—. It's completely up to the ombudsman to start something according to the criteria. If somebody feels that that doesn't comply with the criteria, where do they take that complaint, then, before the case becomes active, in a way?

Wel, fel roeddwn i'n dweud yn gynharach, ar ddiwedd y dydd rydw i'n atebol i'r Cynulliad. Os byddwn i, neu unrhyw un arall sy'n gwneud y swydd, yn penderfynu mynd ar drip pysgota a jest mynd ar ôl rhywbeth nid oherwydd diddordeb cyhoeddus ond oherwydd diddordeb personol, a chamddefnyddio eu swydd, wel, fe fyddwn i'n disgwyl iddyn nhw ddod i'r pwyllgor yma er mwyn amddiffyn beth maen nhw wedi'i wneud. Wedyn, byddai'n rhaid iddyn nhw fynd i'r Pwyllgor Cyllid a gofyn am arian ar gyfer y flwyddyn nesaf, ac rydw i'n meddwl y byddai hwnnw'n job llawer anoddach i'w wneud, os yw'n amlwg eu bod nhw wedi bod yn gwario arian cyhoeddus ar gyfer y trip pysgota yn hytrach na'r angen cyhoeddus. Ac, wrth gwrs, byddai'n bosib iddyn nhw ddod gerbron y Pwyllgor Cyfrifon Cyhoeddus. Felly, rydw i'n meddwl bod yna ddigon o ryddid yn y ddeddfwriaeth fel y mae'n bodoli ar hyn o bryd, ond pan mae'n dod i ddefnyddio unrhyw bwerau sydd gan yr ombwdsmon ar hyn o bryd, mae'n rhaid bod yn hollol agored, ac mae'n rhaid i mi brofi bob tro bod yna ddiddordeb cyhoeddus trwy beth rydym ni'n ei wneud.

Well, as I said previously, at the end of the day I am accountable to the Assembly. If I or anyone else who's in the post decides to go fishing or just pursues something not because of the public interest but because of personal interest, and abusing their role, well, I would expect for them to come to this committee to defend what they've done. Then, they would have to go before the Finance Committee and ask for money for the year to come, and I think that would be far more difficult for them to do if it's clear that they have been spending public money on a fishing trip rather than the public need. And, of course, it's possible that they will have to appear before the Public Accounts Committee. So, I think that there is sufficient freedom in the legislation as it stands, but when it comes to using any powers that the ombudsman currently has, I have to be completely open, and I have to prove at all times that there is public interest in what we do.  

09:30

Ocê, diolch yn fawr iawn. Janet Finch-Saunders.

Okay, thank you very much. Janet Finch-Saunders.

Thank you. Good morning. To what extent do you agree with the NHS Confederation that there needs to be clear guidance on the verification process of the information received through oral complaints in order to avoid an avalanche of additional complaints?

I'm going to ask Katrin Shaw to deal with that question.

Okay. I think the Bill as drafted in section 8 does give quite a good framework already for the provision for oral complaints. It requires the ombudsman to issue guidance, so obviously we will have to issue general guidance on how complaints can be made, which would include how to make an oral complaint.

Also, one of the key aspects that's included in the Bill is the fact that we have to go through the process with a complainant and explain to them—do they understand that a complaint has been duly made? And confirm with them whether they want a copy of the complaint in writing, and if they do, provide them with a written copy of the complaint.

We also will be required to keep a register of oral complaints, and I think it's not really changing the position hugely. In the case of local authorities, they can accept oral complaints now, and they do so, I understand. So, too, do the 'Putting Things Right' regulations allow for complaints to be made verbally. In many cases in the health setting, obviously community health councils assist people when they make complaints, so often they are made in writing. So, we don't expect a huge increase.

Okay. What do you envisage as being the key aspects of the verification process?

Well, we've obviously been thinking about what our guidance would say. We already confirm with people what their name and address is and their contact details. If somebody is homeless, for example, we wouldn't be able to verify a fixed address, but we would verify contact details. Already, when somebody makes a complaint on behalf of another person, we check consent so that we know the person at the centre of the complaint—the person who's actually suffered the harm that's been claimed—is consenting to the process.

So, we don't envisage that to be hugely different. We do it now, when people ask us to exercise discretion and take oral complaints. Sometimes, as we've said previously, those aren't returned to us, so it's wasted resource as far as we're concerned. But we do go through that process on the phone with them, verify the complaint with them, and check that we have the necessary consents to take the matter forward. So, those are the sorts of tests that we will apply. We do currently record phone calls at the front end of our office and retain them for 28 days, so there will be a record there. But, as I say, there will be a requirement on us to keep a register of all oral complaints that are made if the Bill is enacted as it's currently drafted.

Okay, thank you. Do you believe the estimated cost in the explanatory memorandum associated with removing the requirement that a complaint be made in writing is reasonable and realistic?

'Yes' is the short answer. I think there are a number of reasons why we think that the cost will not be huge. Firstly, oral complaints can be accepted, and generally are by local authorities. They are permitted under 'Putting Things Right' regulations, so they can be made already to health boards. And at the moment, although we don’t get a huge number, where we can take oral complaints and then confirm them in writing, we do.

So, I think the numbers we anticipate are not going to be huge, in that there are arrangements in place already, and of course a lot of people, particularly with health complaints, will go through the community health councils. They will deal with the community health councils, sometimes orally, but actually by the time it reaches us it would be in writing. So, there is a gap that needs to be filled, but it isn't huge.

In terms of the details within the explanatory memorandum and the costings, those are by definition—well, they've got to be a best estimate. We can't claim that they're fact. But what I would say is that they were developed by somebody independent who was appointed to do this piece of work, and it took evidence from complaints-handling staff across local authorities and health boards and builds on the information they provided. So, we think they are robust. 

09:35

The Northern Ireland ombudsman stated that in 2016-17 and, in fact, the year to date, she has experienced a significant increase in enquiries and complaints following the removal of the requirement. What are your views? 

I believe you're taking evidence later on, so you may be able to get an update on that. My understanding is that there was a bit of a spike and it has settled, and that it isn't an ongoing trend. I think one of the things—and I think we've touched on this in other sessions in terms of the annual report—is there are always quite a lot of things happening in terms of numbers of complaints and numbers of enquiries, and I think it's sometimes difficult to identify specifically the difference between increases in numbers. In some cases it might just be a change of channel—so, in other words, something that would have come in in writing has come in as an oral complaint—which does have implications, but it doesn't actually increase the total number of enquiries or complaints. So, that's our understanding, but I'm sure that's something you will explore later on. 

Okay. And again, to what extent do you agree with the NHS Confederation that the Bill should include provision for those requiring advocacy support to make oral complaints? 

We don't see that as a necessary step, really. At the moment, people don't need advocacy support to make complaints to us. Sometimes at the front end of our service, we do refer people to various agencies if they need specific help in an area. Obviously, the situation is different in health, but the community health councils will continue to do that in relation to health complaints and, you know—

Well, I was going to say that that's a little bit of a grey area at the moment, isn't it? 

I don't believe the consultation is proposing that the advocacy function is removed; that's my understanding. I know there was the consultation on the future arrangements in terms of the structures and where the body sits, but I don't recall there being a proposal that the delivery of the advocacy support was changing, but I may be wrong, as I say, if I've misunderstood that. 

But what we propose to do when we take oral complaints—and when we do exercise our discretion at the moment, we ensure that the person taking the complaint is not the person then who assesses or investigates the complaint. So, we create that division in the office where the person who deals with that complainant on the phone takes the complaint, verifies it with the person, confirms they are happy with what's being presented and then it's moved across to our assessment officer for consideration of the complaint.   

Just on that, Janet, before you go on, you said earlier, Nick, didn't you, that part of the changes that would take place if the Bill is enacted as drafted would enable the vulnerable in Wales to be better served by the ombudsman and the ombudsman's office. So, this idea of advocacy support to make oral complaints, is that not part perhaps of ensuring that those who are vulnerable get that better service? 

Yes, but currently—and I do feel quite strongly about this, because you could argue that this will, in a way, make the office—. I found it positively feudal in terms of the way in which the current legislation is drafted. I can currently consider an oral complaint should I consider it appropriate using my discretion. I'm sorry; people who might have literacy issues have rights too. They shouldn't be dependent upon what mood I or anybody else doing my job happen to be in as to whether or not you're going to exercise that discretion. So, I hope—certainly through last week's session as well—I've made it quite clear that we're not in the business of looking for more complaints, particularly not additional health complaints; we've seen plenty coming our way. But I think we always, always have to challenge ourselves to make sure that we are reaching out to the people that need our services the most. 

The current evidence that we have is that, where we are receiving oral complaints and we do use that discretion, and our excellent officers will be spending perhaps hours transcribing these complaints, getting to the core of the problem, sending them back to the oral complainant, who will, hopefully, be in contact with an advocate who will be able to advise them that their complaint has been encapsulated sufficiently, and they can then sign the complaint and send it back to us, we only receive 50 per cent of them back. So, current arrangements are not efficient, and we want to make sure that the office, despite the pressures that might exist in terms of ever-increasing numbers, is still doing all that it can to help the most vulnerable that need good-quality public services. 

09:40

But despite those sorts of concerns, and that scenario, you don't believe that advocacy support should be included in the Bill. 

No. I think we're happy with the provisions of the Bill, to ensure that we simply move away—. What's critical here is moving away from this issue of discretion to ensuring—. I'm very sure that we do have a higher incidence, first of all, of literacy issues than the UK average. Therefore, in Wales, this has the potential to be of greater social injustice. The issue is stigma. Some people who might have suffered a real injustice, if they feel that they can only come to my office if they're prepared to write, and there is any fear of stigma or embarrassment—we need to remove that fear factor away. And that's the reassurance I'm trying to give, not just to this committee, but to our staff as well, because, obviously, they're very busy, particularly our complaints advice team. We're not trying to change the office into some kind of call centre, but we do want to make sure that we're sufficiently flexible and that we're serving the most disadvantaged. 

Rwy'n derbyn beth rydych chi'n ei ddweud, ond onid oes perig eich bod chi'n creu rhyw ddiwylliant yng Nghymru o gwyno, yn debyg i wledydd eraill rydym ni'n gwybod amdanyn nhw, lle mae yna ddiwylliant yn bodoli? Onid yw hyn i gyd yn bwydo i mewn i hynny, ac rydych chi jest yn creu rhyw sefyllfa anghynaladwy?

I accept what you're saying, but isn't there a risk that you're creating some sort of culture in Wales of complaining, similar to what's in other countries we know about, where there is a culture that exists? Isn't this all just feeding into that, and you're just creating some sort of unsustainable situation?

Na, nid wyf yn meddwl hynny, oherwydd y ffordd mae'r byd yn newid. Yn sicr, mae'r diwylliant cwyno yna yn tyfu, ac rwy'n meddwl ein bod ni wedi dangos y ffordd y mae'n ffigurau ni wedi tyfu yn ystod y ddegawd ddiwethaf. Ond mae'r ffordd y mae pobl yn cyfathrebu wedi newid yn gyfan gwbl hefyd, os rydych chi'n meddwl am y ffordd y mae pobl yn defnyddio e-bost neu decst, neu Facebook a trydar ac yn y blaen. Ond rwy'n meddwl bod y newid yna yn un bwysig ar gyfer pobl sydd—. Y bobl rwyf i'n trio eu targedu ydy'r rheini sydd ddim yn rhan o'r diwylliant cwyno, ond sy'n ofn gwneud, ac mae'n nhw'n ofn gwneud oherwydd eu bod nhw'n teimlo eu bod nhw'n mynd i gael eu beirniadu oherwydd nad ydynt yn gallu rhoi'r gŵyn ysgrifenedig yna i fewn mor hawdd ag y mae pobl eraill yn gallu ei wneud. Felly, mae'n bwynt o gyfiawnder cymdeithasol. 

No, I don't think so, because of the way the world is changing. Certainly, that culture of complaining is growing, and I think we've shown the way our figures have grown over the past decade. But the way that people communicate has changed completely, when you think about the way that people now use e-mail or text, or Facebook and Twitter et cetera. But I think that this change is an important one for the people who—. The people I'm trying to target are those who are not part of this complaints culture, but are scared of doing so, and they're scared of doing it because they feel that they will be judged or criticised because they can't submit that written complaint as easy as others can. So, it's a point of social justice. 

Yes. Could you explain why the power to investigate matters relating to the private health services element of a complaint in a public or private pathway is necessary?

I will. The current system follows the sector rather than the citizen. So, I currently have powers to investigate private health complaints where they've been commissioned by the NHS, not where they've been commissioned by the individual. This can happen quite often, but there was one high-profile case, Mrs Lewis from Llanelli. I have been in correspondence with her, not recently, but perhaps a year or two ago, the first time that we considered the Bill during the last Assembly. And Mrs Lewis's injustice was that she lost her husband and she had to wait five and a half years to get an answer to her complaint, because, basically, it was a question of ping pong between a public and private investigation. Now, I would prefer a system where we follow the citizen rather than the sector, because I don't think it's acceptable to anyone who's lost a relative to have to wait five and half years in the way that Mrs Lewis did. So, currently we can have a bizarre situation where perhaps somebody has had unacceptable treatment. We can investigate the NHS aspect of the care, then perhaps they've commissioned their own care, then perhaps they've passed away following further NHS care. So, we can do the two public bits, but not the private bits in the middle. That's not acceptable for Mrs Lewis, or anybody else in her position. It's not acceptable for the public or the private providers either, because nobody is getting a resolution of any shape during that five-year period. So, I think that it would be an important reform that would ensure that Mrs Lewis, and others like her, wouldn't have to wait five and a half years in the future.

09:45

Okay. Are there enough assurances within the Bill that the private healthcare services investigated under Part 3 of the Bill will be subject to the same rigour and standards as the NHS services?

I'm not sure that that is a legislative issue. I think it's more of an operational issue, if I was honest, in that, certainly, we have one approach to investigating all health complaints within the office. We have one system for clinical advice and we would not be proposing to set up separate private operations for private investigations. So, it would be a common approach for public and private, as it is now where those private aspects have been commissioned by the NHS. So, I can assure you that there'd be no change of provision there.

Could I just ask before you go on, Janet—? In terms of the pathway that you outlined earlier, then, when somebody might go to the NHS for treatment and then go to a private health provider and then perhaps back to the NHS, under the proposals, the private element would be covered as well as the NHS servcies. If somebody went to a private provider first and then went to the NHS, would that also be captured?

Yes. I think the intention is to ensure that where there's—. And it has to be only where there's a combination of public and private and where the private has been commissioned by the individual. Currently, if that private care was commissioned by the NHS, we can look at it, but what I wouldn't want to do, and I think the provisions of the Bill are strong on this, is suddenly just do private provision, and exclusive private provision—that's not our job. But I do think there's a public interest where there's been that combination.

Ar y pŵer i fynnu costau oddi wrth ddarparwyr gwasanaethau iechyd preifat, mae yna gyfundrefn eithaf manwl yn cael ei gosod yn fan hyn, ond a ydy hi'n deg? A ydych yn hapus ei bod yn gyfundrefn deg ar gyfer y darparwyr yn y sector breifat?

On the power to demand costs from private health services providers, there is quite a detailed regime set out here, but is it fair? Are you content that it's a fair regime for the providers in the private health sector?

Rŷm ni yn hapus bod y pwerau—. Mae'r prawf yn un uchel yn y Bil, achos mae'n rhaid bod tystiolaeth bod yr awdurdod preifat wedi 'obstruct-o' yr ombwdsman trwy broses yr ymchwiliad.

Yes, we are content that the powers—. It's quite a high test in the Bill because there must be evidence that the private authority has obstructed the ombudsman throughout the investigation process.

So, the test is a high one, and we don't envisage the test really being used very often because it is a high provision and obviously there has to be evidence of obstruction to the ombudsman. I think the process is clear in the Bill, because it's almost in the form of a statutory appeal to the magistrates' court. We have to serve a notice. So, I don't envisage it being used very often, because I wouldn't expect private providers to be obstructing the ombudsman or to be acting almost in contempt. The provisions say that there needs to be evidence of contempt, as if there were proceedings in the High Court. But I think the process, as outlined, is straightforward, if we ever did need to use it.

Ac mae yna bŵer i'r gwasanaethau preifat apelio ynddo fo hefyd. Mae hwnnw'n gwneud y broses yn deg.

And there is also a power for the private services to appeal. So, that makes the process fair.

Ydy, mae'n deg, achos mae section 19 yn y Bil yn dweud bod providers preifat yn gallu mynd i lys y magistrates i apelio o ran y notis. 

Yes, it is fair, because section 19 in the Bill sets out that pubilc providers can go to the magisrates' court to appeal against the notice.

Continuing with the private health service providers and how they are captured by the proposals in the Bill, I wonder if you could perhaps explain to the committee how you believe that the provisions in the Bill, in terms of the report that might follow an investigation, would ensure that the required remedial action was taken by a private health service provider. Are you confident that there's enough force in the legislation to ensure that that would take place?

09:50

Yes. Again, going back to the issues around how we would investigate, I think we would have one system of investigation and one system for compliance as well. I know this is something that has come up more recently in terms of the importance of us ensuring effective compliance with our recommendations. And I think as I've said before as well, that's going to be a big theme for us this year.

We've had a significant number of additional health investigations—there's a north Wales theme here—and it does mean that we'll be putting a lot more emphasis on that. We would have the same powers to deliver a special report, which I've only had to do once in the last three and a half years—I think that was the only time that we've done it in terms of NHS provision. The power to do that and to issue a special report to the Assembly I think would be a powerful tool for private providers as it is for public.

Okay. And in terms of monitoring the action that should be taken following a report, do you believe the Bill provides sufficiently for that?

Yes, and I think that, again, that needs to be as much an operational as a legislative aspect, if you like. We need to make sure that follow-up is taken seriously, because, back to this point that Siân was making, I'm not sure that we've got the same complaints culture that exists in some places, but there's evidence that we're catching up. One of the ways in which I think we have to ensure better provision, not just for service users but in terms of duty of care to our staff, is to make sure that, where they've investigated something and where they've found failings, they're not confronted then with a very similar complaint about a very similar type of failing from the same body. So, I think there is a commonality of purpose in us making sure that that's done effectively.

Okay. Why do you consider it necessary, in your view, to include a provision in the Bill to introduce a complaints-handling procedure across public sector bodies?

Well, I think it's about openness, I think it's about transparency, I think it's a basic principle of Nolan. It exists in Scotland—I think you're taking evidence from my colleague from Scotland later on. Her predecessor, I think, established the Complaints Standards Authority in Scotland. It sounds, perhaps, quite grandiose—an authority—it sounds regulatory. Actually, what it is is two people working very hard to make sure that there are common sets of complaints standards in different public sectors.

It was first introduced in Scotland in the local government sector. It was done collaboratively, working with the sector. Why? Because there were 33 local authorities in Scotland that had 33 different complaints systems. It was impossible to compare what good practice looked like, and also to drive up standards. So, I think adopting that approach in Wales would ensure that we have evidence, and that you would have evidence, and that Government would have evidence as well, in terms of openness, transparency and accountability about what performance and good practice looks like.

I think that we would then be able to work with a number of sectors to make sure that complaints-handling evidence is available. So, for example, if you as elected Members were in the Scottish Parliament, you would be able to find out very quickly that 95 per cent of complaints in Edinburgh are dealt with within five days, but perhaps in other parts of Scotland that figure might slip to only 30 or 40 per cent. It creates a bigger dynamic and incentive for better complaint handling more generally. Specifically in terms of health complaints, I seem to remember—forgive me if I've got this wrong—I think you actually submitted a question about  the 'Putting Things Right' performance amongst the different health boards in Wales. I don't think that it should be necessary for parliamentary questions or freedom of information questions to get this quite basic information. So, it sounds more regulatory than it is. It's actually about openness, it's about Nolan principles and driving up standards.

I have to be honest, from my own experiences as an Assembly Member, I've been quite appalled by the complaints procedures in some public bodies. My constituents have felt even more aggrieved after they've gone through the complaints process at the lack of attention to their complaint and the time it's taken, and sometimes they go into the ether and then something will come back that doesn't resemble anything or that it's been looked into in the depth that it should be. I mean, I brought two complaints to you and they both ended up with section 16 public interest reports. That, over the lifetime of those complaints, took about two years, and it was only then that people could then move on because, clearly, if there's grief, they can't draw a line and try to move on until their complaint's been—. So, for me, I'm pretty keen to see that all public bodies have a satisfactory and an open, transparent complaints procedure. 

Do you consider whether Part 4 of the Bill, which includes the provision for complaints-handling procedures—does it compromise your independence, as stated by the NHS Confederation?

09:55

No. And I thought that was an interesting use of words from them. Again, you'll be taking evidence from Scotland later on today. I think that there's—. I actually met with the previous Scottish ombudsman as well recently. They assure me there has been no challenge to this system in Scotland—none at all. No assertions of lack of independence. I think that last week as well, when I was in committee talking about the annual report—and I've also given evidence on this to the Finance Committee—there was, certainly from the Finance Committee, broad support for the improvement function that we currently do. Now, is that compromising our independence? It could do if we went about it the wrong way, but we've put in safeguards to make sure that those improvement officers are not dealing with complaints from the very same bodies in jurisdiction.

So, I think it's going back to this point that Siân raised about a complaints culture: what can we do to affect that culture to make sure that public bodies are more responsive? What can we do as well—? We don't want to override—this isn't about overriding the 'Putting Things Right' regulation. I don't know if some of this is a fear factor, really, coming from the NHS, but, clearly, there have been a number of public interest reports recently. Some of them—this has got a great north Wales flavour to it—specifically with Ysbyty Glan Clwyd, and more recently some with Ysbyty Gwynedd as well where—. You know, we've had instances, not just in north Wales but other places too, where the 'Putting Things Right' regulations are not the problem—compliance with those regulations is the problem.

And the openness of the way in which we're seeing compliance with these health boards is an issue as well. So, I think that, actually, it really is in the NHS's interest to support this; it's going to do them good. And it will do them good because, again, going back to this issue that Siân raised about a complaints culture—absolutely right. This week—we were discussing this in the office—I think the Law Society have now said that the reason that NHS claims for negligence have rocketed over the past decade is because of this defensive attitude from the NHS. Now, they're not just talking about Wales, they're talking more at a UK level, but I think the figures that they referred to—. Negligence claims in the NHS over the past decade have increased from £400 million to £1.6 billion—in the course of the last decade. Now, the Barnett share of that—I'm not sure what the figure is in Wales this year—would be about £80 million, if my maths is correct. I always look nervously to Chris when I do anything too arithmetical. But, you know, if they are facing anything like that level of private claims, certainly the redress payments that we award are much, much smaller. You know, I don't think we've even hit £1 million over the past decade in terms of the aggregate level that we've referred to. But I would urge the NHS not to look at these reforms in a defensive way.

Certainly, what we're trying to do on the improvement officer function as well—it's not about the compromise of our independence, it's about us all seeing that there is a common gain from having a better complaints culture. That reduces pressure on my office, pressure on hard-pressed health boards that are facing ever-increasing demands from an ageing population, and it's in the interests of complainants as well so that they can learn from the hell that somebody else has been through, then, hopefully, somebody else doesn't have to go through it again. And then, if it was to have an impact on them—that they face fewer negligence claims—even a tiny reduction in £80 million a year—. I think there is an overriding public interest in them trying to engage with this positively, and I certainly thought some of the other health-related responses that we had—the General Medical Council and some of the responses—were much more positive and productive because we all need to stand back and look at the big picture here and think of what can be done for everyone. This is not about us going after, it's about us having supportive powers.

10:00

Are you saying, then, Nick, that in terms of your office, the ombudsman's office, there would be what are sometimes described as Chinese walls, so that those who were helping organisations implement complaint-handling procedures wouldn't then have a role in reviewing how those procedures have been implemented by that particular organisation?

Certainly, we have a Chinese wall in terms of the improvement office function currently. The biggest wall—forgive me, but I can't resist it—the biggest wall you have to fear is Hadrian's Wall. It is wrong that these powers exist in Scotland and have been operated successfully and they're not extended to other places. So, I would like to see good practice in Scotland. It's going to be extended to Northern Ireland—the legislation has been extended to Northern Ireland. I'm not sure the provisions have actually been implemented because of other constitutional aspects affecting Northern Ireland recently. There were plans for similar-type improvements in England. I think those are now being abandoned by the Cabinet Office because of other issues with Brexit legislation and other pressures on Westminster.

So, this is an opportunity to make sure that the next area that would have a complaints standards authority would be Wales, and that we could do something really good here south of Hadrian's Wall. But if there's any conflict, we'll make sure there's a Chinese wall as well. I'll stop talking about walls now.

Okay, Nick. Moving on, then—in terms of social care and palliative care and investigations of complaints as far as those services are concerned, is it your view that merging the two regimes in Parts 3 and 5 would have any tangible benefits? And would that be a better model for citizens and a citizen-focused service? Or Katrin?

I don't think practically it makes any difference for the citizen, in terms of the service that we deliver. Obviously, at the moment, and it will still be the case under the Bill, publicly funded social palliative care would be investigated under Part 3 anyway, and it's the privately funded care that was introduced by the Social Services and Well-being (Wales) Act 2014 that brought in the separate Part. But as far as the service user is concerned, when they come to us, the investigation process is the same, the reporting outcomes are the same, and so outcomes for the complainant are the same. So, I don't think it makes any practical difference for the complainants.

And you don't think there would be any benefits in joining it up?

It would make the Bill shorter, but in terms of practical effect, as I say, in terms of our service delivery, it doesn't make any difference at all.

A sôn am Ran 7, Amrywiol a Chyffredinol, mae yna sôn am greu strategaeth ar gyfer y Gymraeg. Roeddwn i'n synnu, a dweud y gwir, nad oes gennych chi strategaeth ond mae gennych chi gynllun iaith o dan yr hen drefn. Ond pwy fydd yn monitro hyn i gyd, a beth fydd yr egwyddorion a fydd ar waith yn y strategaeth?

Talking about Part 7, Miscellaneous and General, there is talk about creating a strategy for the Welsh language. I was surprised, really, that you didn't have a strategy but you have a language plan under the old regime. But who will be monitoring all of this, and what principles will be implemented in the strategy?

Yn gyntaf, rydw i'n ddiolchgar iawn bod yna sôn am y strategaeth yn y ddeddfwriaeth. Rydych chi'n hollol iawn, mae gennym ni bolisi ar hyn o bryd, ac rydym wedi rhannu hwnnw'n answyddogol â'r comisiynydd i sicrhau ein bod ni'n adlewyrchu arfer da. Beth ydy'r gwahaniaeth rhwng cynllun a strategaeth? Nid wyf yn siŵr. Yn Lladin, mae strategaeth yn golygu cynllun gweithredu, felly rydw i'n siŵr bydd y strategaeth yna'n adeiladu ar beth sydd gennym ar hyn o bryd. Rydw i'n meddwl taw'r test mwyaf ymarferol yw beth ydym yn ei wneud o safbwynt sicrhau bod y gwasanaethau yna ar gael yn y Gymraeg. Fel rydych chi'n ei ddweud, rydw i'n synnu, i ryw raddau, nad oedd yn Neddf 2005, ond ni wnes i gychwyn yn y swydd tan 2014. Rydw i'n falch—mae'n golygu os ydy o yn y Ddeddf, mae yna sail statudol sy'n golygu y buasai'n rhaid i fi, neu bwy bynnag sy'n gwneud y swydd, adrodd yn ôl yn yr adroddiad blynyddol o ran beth rydym ni'n ei wneud o safbwynt yr iaith. Ac, yn ymarferol, rydym ni eisiau gwneud mwy a mwy.

Mae un o'n swyddogion gwelliant ni ar hyn o bryd ddim jest yn gweithio gydag un o'r cyrff cyhoeddus; mae ganddyn nhw rôl thematig, sef y Gymraeg, i sicrhau ein bod ni'n gwella beth rydym ni'n ei wneud drwy'r amser, ac mae hynny'n golygu y gwnawn ni gysidro gwneud mwy yn y dyfodol. Er enghraifft, beth amdanom ni'n cael presenoldeb yn y gogledd, er enghraifft, ac yn sicr yn gwneud mwy i sicrhau bod mwy o Gymraeg yn cael ei siarad? Felly, rydw i'n meddwl dyna'r testun a dyna'r egwyddorion, sy'n gryf ar hyn o bryd, ac rydw i'n meddwl, trwy roi hyn yn y Ddeddf, rydym ni'n adeiladu ac rydym ni'n mynd i sicrhau mwy a mwy, yn hytrach nag unrhyw beth llai na'r hyn sydd gennym ni ar hyn o bryd.

Firstly, I'm grateful that the strategy is mentioned in the Bill. You are right, we do have a policy currently, and I know that we have shared that unofficially with the commissioner to ensure that we reflect good practice. What's the difference between a plan and a strategy?  I don't know. In Latin, strategy means an action plan, so I'm sure that that strategy will build on what we have currently. I think that the most practical test is what we do in terms of ensuring that those services are available in Welsh. As you say, I am surprised, to some extent, that it wasn't in the 2005 Act, but I didn't start until 2014. I'm glad—it means that if it's in the Act, then there's a statutory basis that means that I, or whoever is in the post, would have to report back in the annual report for what we are doing in terms of the Welsh language. And, practically, we want to do more and more.

One of our improvement officers currently isn't just working with one of the public bodies; they have a thematic role on the Welsh language to ensure that we improve what we're doing constantly, and that means that we will consider doing more in the future. For example, what about having a presence in north Wales or doing more to ensure that more Welsh is spoken? So, I think that's the text and those are the principles, which are currently strong, and I think that by putting this in the Act, we are building and we will ensure more and more rather than anything less than what we have currently.

10:05

Buaswn i'n hoffi jest gofyn un cwestiwn sydd ddim yn uniongyrchol yn ymwneud efo'r Bil, ond mae'n ymwneud efo'r Gymraeg. Rydych chi wedi dangos awydd i ddelio efo cwynion ynghylch diffyg gweithredu'r safonau—hawliau siaradwyr Cymraeg—ac wedi mynegi eich bod chi eisiau gwneud hynny er mwyn lleihau biwrocratiaeth, ond, onid ydy hwn yn mynd i—? Rydych chi'n cael yr holl bwerau newydd yma, onid yw hwnnw'n rhywbeth ychwanegol a ddylai aros efo Comisiynydd y Gymraeg?

I would just like to ask another question, which doesn't relate directly to the Bill, but it does relate to the Welsh language. You have shown a desire to deal with complaints regarding the lack of implementation of the standards—the rights of Welsh speakers—and you have expressed that you want to do that in order to reduce bureaucracy, but isn't this going to—? You have all these new powers, isn't that something that is going to be additional that should remain with the Welsh Language Commissioner?

Rydw i wedi sôn am y ffordd y mae’r gyfundrefn bresennol yn gweithio, oherwydd rydw i’n meddwl ei fod o’n or-fiwrocrataidd. Mae’n or-fiwrocrataidd yn y ffordd fwyaf annheg i’r comisiynydd, oherwydd nid oes ganddi'r pŵer ar hyn o bryd i ddatrys yn gynnar. Mae hynny’n golygu—. Rydw i’n gwybod ein bod yn dod at y Nadolig, a'r llynedd, rydw i’n meddwl fy mod i’n iawn i ddweud, roedd rhywun wedi cwyno yn Wrecsam oherwydd roedd y goeden Nadolig yn dweud, 'Merry Christmas' uwchben 'Nadolig Llawen'. Fe ddaru’r comisiynydd benderfynu peidio ag ymchwilio i’r gŵyn yna, wedyn cafodd hi ei gyrru i’r tribiwnlys.

Yn Iwerddon, i ddangos y gwahaniaeth, mae’r ombwdsmon yn Iwerddon yn cael 400 o gwynion bob blwyddyn. Pum ymchwiliad llawn mae’n ei wneud, oherwydd mae yna tua 200 neu 300 o achosion lle maen nhw’n defnyddio datrysiad cynnar. Felly, dyna beth sy’n bwysig; nid pwy sy’n delio â'r cwynion, ond y ffaith eu bod nhw’n cael eu delio gyda’n gynharach, i fod yn deg i’r achwynydd a hefyd i’r comisiynydd.

I have talked about how the current regime works, because I do think that it is overly bureaucratic. It's overly bureaucratic in the most unfair way for the commissioner, because she doesn't currently have the power of early resolution. That means—. We are coming up to Christmas, and last year, I think I'm right to say, someone made a complaint in Wrexham because the Christmas tree said 'Merry Christmas' above 'Nadolig Llawen'. The commissioner decided not to investigate that complaint and then she was sent to the tribunal.

To show the difference, in Ireland, the ombudsman receives 400 complaints a year. The ombudsman conducts five full investigations, because for about 200 or 300 of the cases, they use early resolution. So, that's what's important; not who deals with the complaints, but the fact that they are dealt with earlier, to be fair to the complainant and the commissioner.

Ond, petai’r broses yn newid, mi fyddai’r comisiynydd yn gallu delio efo’r cwynion yn gynt. Nid yw symud y broses a’r cwynion draw i chi, o angenrheidrwydd, yn ateb i’r broblem. Os mai’r broblem ydy bod gormod o fiwrocratiaeth o fewn y system ar hyn o bryd, wel, newid y fiwrocratiaeth—tynnu’r fiwrocratiaeth yna i lawr, a gadael y cwynion lle maen nhw, achos maen nhw’n ffitio i mewn i’r briff mwy eang sydd gan y comisiynydd.

But, if the process changed, the commissioner would be able to deal with complaints sooner. Moving the process and the complaints over to you isn't necessarily the answer to the problem. If the problem is that there's too much bureaucracy within the system at the moment, then change the bureaucracy—reduce that bureaucracy and leave the complaints where they are, because they fit into the broader brief that the commissioner has.

Nid wyf i’n anghytuno efo hynny, oherwydd, petasem ni’n gweld cyfundrefn newydd gyda datrysiad cynnar, buaswn i’n falch iawn. Nid wyf yn gwybod sut mae’r comisiynydd yn teimlo am hynny. Ond rydw i’n meddwl bod yna ddwy egwyddor lle rwy'n meddwl bod yna ddiddordeb cyhoeddus. Yr un cyntaf yw datrysiad cynnar, ac yn amlwg mae gennyf i’r pwerau hynny; nid ydynt gan y comisiynydd ar hyn o bryd, ond petai hynny’n digwydd, buaswn i’n croesawu hynny. Yr ail bwynt yw annibyniaeth. Nid wyf i am eiliad yn dweud bod y comisiynydd ddim yn trio bod yn annibynnol, ond yn gyfansoddiadol rydym ni i gyd yn gwybod bod pob comisiynydd—nid jest y comisiynydd iaith—yn cael eu hapwyntio gan Weinidog. Rŵan, pan mae'n dod i ddelio efo cwynion yn erbyn y Llywodraeth, rydw i’n meddwl ei fod yn egwyddor bwysig bod yn rhaid i rywun fod yn atebol i’r Cynulliad. Oherwydd, o safbwynt hyder yr achwynydd, mae’n rhaid iddyn nhw wybod, os ydyn nhw’n cwyno am unrhyw adran o’r Llywodraeth, nad yw’r person sy’n gyfrifol am ymchwilio wedi cael ei benodi gan y Gweinidog yna sydd, efallai, yn cael ei feirniadu. Dyna’r sefyllfa o safbwynt y cyfansoddiad.

I do not disagree with that, because, if we did see a new regime with early resolution, I would be very pleased. I don't know how the commissioner feels about that. But there are two principles where I think there is public interest. The first is early resolution, and clearly I have those powers; the commissioner doesn't have those at the moment, but if that were to happen, I would welcome that. The second point is independence. I don't, for one second, say that the commissioner isn't trying to be independent, but constitutionally we all know that each commissioner—not just the language commissioner—is appointed by a Minister. So, when it comes to dealing with complaints against the Government, I think that it is an important principle that someone is accountable to the Assembly. Because, in terms of the confidence of the complainant, they have to know that, if they complain about any department of the Government, the person responsible for investigating has not been appointed by the Minister who is, perhaps, being criticised. So, that's the situation in terms of the constitution.

Okay. I'm going to have to draw a line under those particular items there, I think, because—

Buaswn i’n gallu gofyn mwy o gwestiynau ynglŷn ag annibyniaeth, ond, ni wnaf.

I could ask more questions regarding independence, but I won't. 

Fe wnaf symud ymlaen at gostau—

I'll move on to costs—

Ie. Cost hyn i gyd; cost cymryd mwy o bwerau ymlaen. Mae yna sôn am £7 miliwn o gostau ychwanegol. A wnewch chi jest egluro sut mae'r—? Achos mae yna sôn am drio gwneud rhywfaint o arbedion o fewn y system fel y mae hi ar hyn o bryd o ran yr achosion, ond wedi cymryd hynny i mewn i ystyriaeth, mae o dal yn mynd i gostio £7 miliwn yn ychwanegol plus arian hyrwyddo'r holl gyfundrefn newydd. So, rydym ni yn sôn am eithaf tipyn o arian mewn cyfnod o lymder. 'A ydym ni'n gallu cyfiawnhau hyn?' ydy'r cwestiwn i ni fel gwleidyddion.

Yes. The cost of all of this; the cost of taking on more powers. There is talk of £7 million of additional costs. Could you just explain  how the—? There is talk of trying to make some savings within the system as it is at the moment in terms of the cases, but having considered that, it's still going to cost an additional £7 million plus money to promote a whole new system. So, we are talking about quite a bit more money in times of austerity. 'Can we justify this?' is the question for us as politicians.

10:10

Rydw i'n gobeithio bod y memorandwm yn egluro hynny ac yn dangos bod yna bwynt o fuddsoddi er mwyn arbed yn y pen draw. Felly, nid ydym ni'n sôn am lawer o bres o flwyddyn i flwyddyn. Rwy'n meddwl y bydd costau uniongyrchol ychwanegol i fy swyddfa i yn rhyw £300,000.

Rydw i'n meddwl ei fod o'n bwysig cofio nad ydym ni'n sôn am benderfyniad dros dro. Rydw i hanner ffordd drwy fy nhymor i. Mae'r rhain yn bwerau—efallai bydd rhai ohonyn nhw na fyddaf i'n eu defnyddio. Pwy bynnag a fydd yn cael y swydd ar fy ôl i a fydd yn eu defnyddio. Felly, mae'r costau yma yn rhai tymor hir, strategol. Roeddwn i'n sôn yn gynharach, Siân, am y diwylliant cwynion yma, y ffaith bod costau yn erbyn yr NHS wedi cynyddu o £400 miliwn i £1.6 biliwn yn ystod y ddegawd ddiwethaf. O'u cymharu â chostau fel yna, rydw i'n meddwl bod y costau yn y Bil yma yn rhai bychain iawn. 

Hefyd, wrth gwrs, mae'r memorandwm yn dangos efallai y bydd yna gostau mawr i wneud dim byd. Rydw i'n meddwl ei fod yn sôn am gostau i fyny at £8 miliwn o wneud dim byd. Ond rydw i'n deall bod yna range o gostau yn fanna. Yn ôl yn 2010, roedd fy nghyllideb i'n 0.026 y cant o'r bloc Cymreig. Os ydw i'n cael y gyllideb ychwanegol yn fan hyn, bydd fy nghostau i'n mynd yn ôl i fyny at 0.026 y cant o'r bloc. Felly, rydw i'n meddwl, yn ystod cyfnod o galedi, fod y costau yma'n rai sy'n mynd i arbed arian yn y pen draw a hefyd gwella gwasanaethau cyhoeddus. Fel gwnes i ddweud wrth gychwyn, yn y pen draw, os ydym ni eisiau gweld—. Rydym ni'n gwario rhyw £17 biliwn ar wasanaethau cyhoeddus yng Nghymru bob blwyddyn. Mae ychwanegu rhywfaint o gostau fan hyn er mwyn sicrhau ein bod ni'n symud at gael gwasanaethau cyhoeddus sy'n world class yn werth ei wneud.

I hope that the memorandum does explain that and shows that there is a point in investing to save, ultimately. So, we're not talking about a great deal of money from one year to the next. We're talking about £300,000 in additional direct costs for my office.

I think it's important to remember that we're not talking about an interim decision. I'm halfway through my term. These are powers—perhaps there will be some that I won't use, but whoever comes after me will use them. So these costs are long-term, strategic costs. We were talking earlier, Siân, about the complaints culture and the fact that the cost of complaints against the NHS has increased from £400 million to £1.6 billion over the past decade. Compared to costs like that, I think that the costs in this Bill are very small.

Of course, the memorandum also shows that perhaps there will be very large costs to doing nothing. I think it talks about costs of up to £8 million from doing nothing. But I do understand that there is a range of costs there. Back in 2010, my budget was 0.026 per cent of the Welsh block. If I were to have this additional budget, then my costs would go back up to 0.026 per cent of the block. So, I think that, in a period of austerity, these are costs that will save money, ultimately, and will also improve public services. As I said when I started, ultimately, if we want to see—. We spend some £17 billion on public services in Wales every year. To add some costs here to ensure that we are moving to a situation of having public services that are world class, that's worth doing.

Mae o'n mynd i olygu costau ychwanegol hefyd i rai o'r cyrff cyhoeddus, hyd at £300,000 dros y cyfnod. Eto, mewn cyfnod o lymder, nid ydy'r awdurdodau lleol ac yn y blaen yn mynd i fod yn hapus iawn yn wynebu mwy o gostau.

It's going to mean additional costs as well to some of the public bodies, up to £300,000 over the period. Again, in a time of austerity, local authorities and so forth aren't going to be very happy in facing more costs.

Na, ond fel rydw i'n dweud, mae yna arbedion yn y gyfundrefn yna hefyd, a buaswn i'n gobeithio, fel y dywedais i am y gwasanaeth iechyd, os yw pobl yn agored ac yn cydweithio ac yn dod tuag at hyn mewn ffordd bositif, rydw i'n meddwl bod yna arbedion sylweddol, a hefyd, wrth gwrs—

No, but as I say, there are savings in that regime as well, and I would hope, as I said about the health service, if people are open and co-operating and approaching this in a positive way, then there are significant savings, and also, of course—

Ond mae hi'n anodd profi hynny, onid ydy? Mae'n anodd profi bod eich gwaith chi yn mynd i gael effaith uniongyrchol ar leihau cyllideb y pwrs cyhoeddus yn gyffredinol. Dyna ydy'r broblem. Petai yna ffordd o ddangos yn uniongyrchol—. A oes yna enghreifftiau o le mae yna—? A fedrwch chi ddangos enghreifftiau lle mae yna arbediad yn gallu digwydd oherwydd eich gwaith chi?

But it's difficult to prove that, isn't it? It's difficult to prove that your work is going to have a direct impact on reducing the public purse budget in general. That's the problem. If there was a way of showing exactly, directly—. Are there examples where you can show savings that can happen as a result of your work?

Oes, mae yna, ac rydw i'n meddwl dyna pam mae'n werth ystyried y memorandwm yn fanwl iawn, oherwydd mae'r costau y tu fewn i hwnnw yn dangos bod yna achos busnes da iawn dros fabwysiadu'r pwerau yma.

Yes, there are, and I think that that's why it's worth considering the memorandum in great detail, because the costs in that show that there's a good business case for adopting these powers.

Can I just ask, finally, Nick, in terms of the review of IT that I think you're going to undertake, to understand the level of additional costs that could be absorbed, as it were, within existing resources, whether it might be considered premature to introduce a Bill to expand your powers before you really know the extent of funding that will be required to implement those additional powers?

Well, first of all, the use of the word 'premature'—I think this is the second time that I've been through Stage 1 on this Bill. It's been three years of making the case for adopting best practice. As it happens—and I'll turn to Chris on this matter—we already have considerable need for good-value IT, given that we're dealing with an awful lot of healthcare complaints, information security issues and issues around future functionality, which mean that we will be reviewing our IT systems come what may over the next year, and we're going through a procurement process, so actually it's not premature. This is the sweet-spot opportunity for us to be able to do this. There would be an economy to us doing this, and to go back to Siân's point as well about the cost of promotion, similarly with IT: we have an IT budget anyway. We have to look at our needs all the time. Similarly with promotion, we have a promotions budget. Should this legislation be adopted, we would be seeking to use our current resources for promotion to make sure that happens.

10:15

Did you say you wanted Chris to come in on this, Nick?

Only briefly to say we recognise, obviously, the pressure on public resources, and you will know from the consideration of the annual report that we've been trying to be more efficient, with a 75 per cent increase in complaints since 2010-11—sorry, complaints and enquiries—and a 60 per cent reduction in unit cost. We also talked last time about some of the other things we're trying to do in terms of the performance of staff and attendance, and about our processes. So, it's not that this is seen in isolation. What's included in the Bill is specifically to do with the new powers, and as Nick said, I think this is a very good time to be thinking about this and making sure that it's integrated into our systems. Actually we are reflecting and working on one of the recommendations of the Finance Committee in terms of our three-to-five-year IT plan. So I think this fits very well, and I think the timing is actually right.

I think in general there's been some criticism of the financial aspects in terms of requirements that would be made of Welsh Government, for example, if it was bringing legislation forward, and what's been set out in relation to this Bill. Do you recognise those concerns?

Well, I think that financial concerns have to be taken very, very seriously and not treated lightly during a period of ongoing austerity. But, as I've said earlier, our proportion of the Welsh block has decreased from 0.026 per cent in 2010 to 0.024 per cent presently. The additional budget resources that we would receive would only bring us up to where we were in 2010. You will see from the explanatory memorandum that there are a number of costs examined there, including the costs of doing nothing, and there are sums of up to £8 million, I think, in terms of looking at future trends. So, I would say in that context that this is good value for money. We've seen the Welsh block, which is £17 billion now—I think the idea of spending £300,000 a year for these powers, which would be reflecting world-class best practice is a bargain, not least given the fact that we got rid of that pensions deficit last year, which came to £300,000, which is exactly the same sum. So, it's a bargain in those terms.

I think the questions that have been raised are more about whether it's robust in terms of what's set out in terms of the costs that will be involved.

Okay. I can only tell you there, Chair, that as far as I can see, in terms of the regulatory impact assessment and explanatory memorandum, there's been a lot of work put in there. I think a lot of it has been done independently by the Old Bell 3 consultancy, and I think a lot has been done wherever possible to look at evidence from other jurisdictions. So, this can only ever be a best estimate, but I do think it's been done as thoroughly as one can under these circumstances.

Okay. Thank you very much for that. Thank you, all three of you, for coming in to give evidence to the committee this morning. You will be sent a transcript to check for factual accuracy in the usual way. Diolch yn fawr.

Thank you very much. 

Diolch yn fawr iawn i chi i gyd.

Thank you very much to you all.

Gohiriwyd y cyfarfod rhwng 10:19 a 10:30.

The meeting adjourned between 10:19 and 10:30.

10:30
3. Bil Ombwdsmon Gwasanaethau Cyhoeddus (Cymru): sesiwn dystiolaeth 3
3. Public Services Ombudsman (Wales) Bill: evidence session 3

Welcome back, everyone, and welcome to the committee to our four witnesses for our third evidence session on the Public Services Ombudsman (Wales) Bill. I wonder if you could introduce yourselves please, perhaps starting with Denise. 

I'm Denise Williams, and I'm a concerns manager for Betsi Cadwaladr University Local Health Board, and I look after the ombudsman's process. 

Hi, I'm Shan Kennedy. I work for BCU. I currently head up the investigation and redress team for BCU. 

Hi, my name is Ruth Friel. I'm head of patient experience in Cwm Taf health board. 

Hello, I'm Angela Hughes. I'm acting assistant director of patient experience at Cardiff and Vale University Local Health Board, and I also chair the all-Wales listening and learning from feedback group. 

Okay, thank you all very much. Perhaps I might begin questions, then, with one on the general principles of the Bill. Do you believe there's enough transparency and clarity in the role and functions of the ombudsman and other bodies within the provisions of the Bill as set out? Who would like to begin? 

I think there are probably certain areas of the Bill where a little bit more explanation is required around what the role of the ombudsman would actually be. Would you like me to elaborate on that? 

I think for—. I'm broadly supportive of the majority of the Bill, but I think there are areas around the complaints standards authority because we have 'Putting Things Right' in Wales, so that's a particular concern for me. I think 'Putting Things Right' has been embedded now. I know when Keith Evans did his review in 2014 he found there was great variation. I think there's been lots of work. It's not perfect, but I think it's much, much better around the fact that if people raise the concern, it's actually dealt with in a proportionate way and a more equitable manner, and in a more timely way as well. I think that the learning from that is something that's really key to take forward, and I think we share that much more across Wales. So, that would concern me that there isn't reference to 'Putting Things Right'. 

However, I think the idea of having a critical friend in the ombudsman and having a role in the standardisation of concerns is something that, actually, already happens, but I would bear in mind that it's a small percentage of concerns that we have that actually go to the public services ombudsman. So, I think if you're going to have a standard, you have to define what does 'good' actually look like, which is quite important. I think if you look at the percentage of concerns that actually go to the ombudsman, the majority of those are there because people aren't happy with the resolution that they had of their issues, and there are always things to learn from them, and I think that's really important. But, actually, what you don't see is the vast majority where, actually, organisations have managed them and we have come to a resolution that the person raising the concern is actually content with, and we can demonstrate the learning. 

So, I think that's an issue, and I would also say around the own-initiative investigations. So, those would be the two areas that I would want more detail around.  

Okay. Would anybody like to add to those areas, or would you agree with that? 

Yes, I would agree with that. Just adding, really, with 'Putting Things Right' regulations, corporate and clinical staff are used—over the last six years—to working within those regulations. With a model of complaints handling, would there be significant changes for the teams, when we're only now really getting the regulations embedded into clinical practice?  

Okay. Well, Angela, you mentioned own-initiative investigations, and I wonder if you, or indeed any of you, would like to tell us whether you support that particular provision in the legislation or not. 

I think, for me, there's just a little bit more detail that is required. If it's own-initiative investigations to find out why people don't raise concerns—so, there are particular members of society that we can't assume they're necessarily having a good experience of healthcare, but don't actually raise issues—so, if we're looking at equitable access to raising concerns, I think that's something that needs investigating, so I would fully support that. However, around own-initiative investigations, we do have Healthcare Inspectorate Wales, we do have the community health councils, we do have the Welsh risk pool, we do have our own internal inspections. And I would just want clarity around some terms of reference. Is it that the ombudsman would recognise a theme? Would he then ask an organisation for information about that? If further investigation needed to be done—actually, we have the Welsh Health Specialised Services Committee as well; obviously, if they commission a service, they can also escalate to investigate—then should that be handed over to the appropriate organisation?

So, for me, just a little bit more clarity around what the purpose of that actually is, because, if I said about Mid Staffordshire, one of the issues around that was, actually, you had lots of regulators and investigation bodies, but it's that sharing of the information that's really, really important. So, for me, it is about that connectivity that would really need to happen, so that you've got the right people undertaking an investigation, with the right terms of reference and the right questions to actually identify what the issues really are. 

10:35

Yes. I think this is a positive change and it will provide an objective view for the organisations. Just looking at my own clinical practice, in maternity services, if there's a concern over patient safety, we would ask another health board to come in and do an independent review, recognising that that health board, with that maternity service, would have sufficient skills and expertise to look at that investigation in depth, rather than asking perhaps a nurse to look at a maternity setting or an orthopaedic surgeon to look at urology. It's just using the right skill set and expertise with the investigation. 

Yes. Do you think that the Bill as drafted has sufficient safeguards in terms of your concerns around own-initiative investigations, or would you like to see any additional safeguards?

I think the safeguards would be, especially when somebody makes the complaint initially, that whoever's listening to that complaint needs to have good listening skills, understanding and background knowledge to be able to make decisions about that, and whether to escalate at that time. There is a risk that things would not be investigated appropriately in a timely manner, and those sorts of safeguards, and more clarity around that, is what I'd like to see as well. 

Okay. Would anybody like to add anything to that? No. Okay—

I think it is just clarity around the connectivity with the other organisations—I think that is key, and it's not apparent. It looks as if it is done separately. That may not be the intention of it. 

Okay. So, you would see like to see more structure, then, that brought the ombudsman together with the health regulator and maybe others to decide how these own-initiative investigation powers might be used. 

And I think, if you listen to the ombudsman talk, that's something he talks about quite a lot, having that, but it's not actually coming across when you read the information that I've read around the Bill. 

There has been the odd occasion where HIW have been involved through information that's come through from the ombudsman, but I think that's something the ombudsman would probably have more ability to answer than I do. My view of it would be fairly limited from my own experience. 

Okay. Thanks very much for that. We'll move on then. Janet.

Thank you. Mr Chairman, clerk, I'd just like to place on record, for the interests of transparency and accountability, that I do have a continuing and unresolved complaint with Betsi Cadwaladr health board as regards the treatment and care of a now lost relative. 

Could you expand on the provisions relating to the removal of the requirement to accept written complaints only, and the view that this would ensure a consistent process across all public bodies in Wales?

I'd welcome this. I think a proportion of the population, particularly in my area in Cwm Taf, are without basic literacy skills. So, this change would be really welcome. We need to consider the type and level of information that would be required prior to starting an investigation and this should be clarified, as there's a risk that the work could be commenced on very little information or evidence.

10:40

Okay. And, collectively, as witnesses, would you expect to see specific provisions within the Bill on the development of guidance by the ombudsman for the making of, and referral of, complaints?

Yes. I think guidance would be really valuable so that we're all consistent.

On the extent to which the Bill makes provision for clear guidance on the verification process for information received by oral complaints—do you have any views?

No, I just think it's a really welcome initiaitve, yes.

I would have some views. I think the verification of oral complaints is really, really important—about how are you going to maintain contact with that individual. So, is it because they haven't got literacy skills and, therefore, you need to maintain contact orally? Some people can be incredibly grief-stricken and bereaved and are so chaotic that they can't actually put in writing their concerns, and you need to do that, or you might need to go and meet with them—sit down and talk it through with them. I think you can't underestimate the skills that are required and the time that that actually takes.

My other issue would be around advocacy support at that point. I think that's really important: sometimes people need to have somebody who is not part of the investigating body, but actually completely independent, to sit down and talk through with them and help them formalise the concerns. If you don't get that bit right and you don't know the issues to be investigated, you will not end up with a satisfactory resolution at the end of it because you may start an investigation and they are not the real key issues that the person actually wants to look at. So, I think it's very welcome, and I think it's absolutely right; it fits in with 'Putting Things Right'. People should be able to raise concerns in many different formats—I'm fully supportive of that.

Chair, we heard this morning from the ombudsman that he doesn't think that there's a need for the advocacy. What's your response to that?

I'd echo Angela's views on that because my experience with complainants is that a lot of them do need support to tell their story. Some of them are still grieving and need that support to guide them through the process. Also, it's somebody to turn to who's not an official character. We need to be assured that these complainants and their families can speak to somebody in the language of their choice as well—that's very important.

Mi wnaeth o sôn hefyd ynglŷn â rôl y cynghorau iechyd cymuned a'u gwaith nhw fel eiriolwyr a chyfeirio at hynny fel ateb.

He also mentioned the role of the community health councils and their work as advocates and referred to that as an answer.

Rwy'n ei weld o'n bwysig ofnadwy, wedi gweithio efo nhw ers blynyddoedd hyd rŵan. Pe buasem ni'n colli'r rheini, ni fuasai fo'n dda iawn i'r patients o gwbl yn fy marn i.

I see it as being very important, having worked with them for many years until now. If we were to lose them, it wouldn't be very good for patients at all in my opinion.

Y gwaith eirioli, rŷch chi'n ei feddwl.

The advocacy work, you mean.

Y gwaith eirioli, ie.

The advocacy work, yes.

In your experience, is there enough advocacy support available at the moment, generally?

There are many advocacy services. There's the community health council that we know of, but there are several advocacy services within the mental health groups. I'm sure we could all benefit from some more. I think this is key to anybody who wishes to raise a concern—either the patient or their family, especially those who are on their own: they need that support.

Would you suggest anything in particular that might be included in this Bill as far as advocacy support is concerned?

Part of 'Putting Things Right' always says that there is the advocacy service there for patients and their carers, so I think we need to reinforce that within the Bill so that's continued for the patients.

A allaf ofyn cwestiwn y gwnes i ei ofyn i'r ombwdsman hefyd? Onid ydym ni mewn perig o greu rhyw ddiwylliant o gwyno wrth greu mwy a mwy o gyfleon, mewn ffordd, i bobl roi eu cwyn ymlaen, yn enwedig ar lafar? A ydym ni'n mynd i agor y llifddorau i bob math o waith ac, yn y pen draw, bydd yr holl beth ddim yn gynaliadwy?

Can I ask a question that I asked the ombudsman as well? Aren't we in danger of creating a complaints culture here and creating more and more opportunities, in a way, for people to present their complaints, in particular orally? Are we going to open the floodgates for all sorts of work and, ultimately, all of it won't be sustainable?

I think we have to welcome complaints and we have to recognise them as actually being a way of measuring patient experience. They are one of the ways, if you look at the four quadrants of patient experience that we have in Wales: I think they shouldn't be taken in isolation from everything else. But, I think they are a way for an organisation to learn. It's really important to what does it feel like to be a patient.

I always put it in the context of, actually, given the number of contacts that we have from patients, the number of complaints that we have, obviously, is a very, very small percentage, but for an individual who has actually felt strongly enough, it's a really emotional experience to go through to raise a concern, and I don't think that can be underestimated. So, I actually welcome the ways of raising concerns, I think, since 'Putting Things Right' has come in. I can talk about Cardiff and Vale. We have about 2,600 concerns a year raised. We were at about 800, prior to 'Putting Things Right', and I think that's because—. And this is in line with all other organisations, but I can quote you the figures from mine because I know them. We deal with 70 per cent of those informally, which I think is really important. People want a resolution. If you're going to complain about a discharge that's happening, it's no good us saying, 'We'll respond in 30 working days.' You need somebody to take action quickly on that and to actually address the key issues at the time.

So, I think we should welcome complaints. And I still worry there are areas of society where people don't raise complaints. Parents of children with complex needs, carers—they use the service so much. Are they really representative? They're a big part of the service users, but do they really represent the percentage of concerns that we would expect them to raise? I think there are issues around that, and you have to look at all of the patient experience, but I never take the number of concerns to be a negative. In fact, I would say a good organisation should be receiving a high number of concerns and compliments and patient feedback. It's what are they doing about them, and actually grading those concerns. So, you might start off with more significant ones, but if you're an organisation where your culture's working and embedding, you would expect to see, looking at the grading of the concerns, which you raised—. I hope that sort of answers that.

10:45

The power to investigate matters relating to the private health services element of a complaint in a public/private pathway—do you consider that appropriate and necessary? You know, where you could have treatment in the NHS, and then part of it goes private—paid for, if you like, by here, the Welsh Government—and then back into the NHS. Not privately with, you know, an individual paying for it.

I think you should. I think healthcare is healthcare, wherever it's provided.

Yes, and clinicians that provide healthcare in the private sector are often people who work in the NHS as well, so if there is an issue with competence or behaviour, then I think that's something where those conversations should occur anyway, and that investigation. I think, probably, one of the issues that perhaps needs looking at is the sanctions that you would be able to apply against private healthcare, because, obviously, within health bodies, there is an obligation to undertake the recommendations and work with those. I don't think there would be quite the same power—and I don't know whether the Act addresses that, so I'm sorry I can't answer that in totality—around the sanctions that you could actually apply to private healthcare. But I think looking at the whole patient journey and being informed by those concerns—. Because I'm sure there are concerns raised in private healthcare; we don't know how they're investigated. It's also not fed back to organisations where the individuals may be practising. And if there are practice issues, actually there's a responsibility to do that. So, I would welcome it.

Okay. Could you expand on your assertion that there was a need within the Bill to ensure that investigations into private medical provision are subject to the same rigour and the same standards as NHS services?

I think it should be. When we look at care, it should always be based on what was the reasonable standard of care that should have been provided. You know, that's recognised in law as being the standard that we use, and I think that standard should be a standard that's applied across.

I think the example was the Ian Paterson case, where he practised in both the NHS and private healthcare, and it wasn't transparent. He had a number of complaints against him, but it wasn't translated into NHS. So, I think it does need to be an open and transparent standard of care. And also, we outsource a number of patients with our waiting list initiatives. So, a number of our NHS patients are going into private healthcare, and we're not always sure about that experience and that feedback either. I'm not sure if that informs the commissioning process either.

So, do you think it's possible to have that rigour within the private sector in the same was as it is in the public sector?

If the standards were laid out and we had transparency and a clarity around the service level agreements within those healthcare settings, then we'd be able to look at it in greater detail and measure.

10:50

Felly, mae o'n broblem ehangach na dim ond y cwynion sydd yn dod drwodd. Mewn ffordd, mae o'n broblem ehangach ynglŷn â sut rydym ni'n monitro ac yn rheoleiddio'r sector breifat. 

Therefore, it's a wider problem than just the complaints that come through. In a way, it's a broader problem about how we monitor and regulate the private sector.  

Wel, mae hi'n anodd gwybod, achos mae'r cleifion yn mynd yna ac nid ydym ni'n cael gwybod bob amser beth sydd wedi digwydd iddyn nhw. Os ydy'r cwyn am damaid o'r ysbyty, ac wedyn maen nhw'n mynd i ysbyty breifat, nid ydym ni, yn aml, yn gwybod beth sydd wedi digwydd iddyn nhw yn y fanna. 

Well, it's difficult to know because patients go there and we don't know at all times what's happened to them. If the complaint is about part of the hospital and then they go to a private hospital, we often don't know what's happened to them there.

Ond mi fyddai hwn yn helpu hynny.

But this would help that. 

Buasai. My fuasai hwn yn ei helpu fo ac yn ei wneud o'n fwy streamlined. 

Yes, this would help it and make it more streamlined.

Heblaw nad ydyn nhw'n gallu mynd i mewn mor ddwfn i'r agwedd breifat yn y daith, mewn ffordd. Ac mae yna dal gwestiynau ynglŷn â hynny. Buasai hwn yn helpu, efallai, ond byddai yna dal gwestiynau ynglŷn â pha mor ddwfn y buasai gan yr ombwdsman hawl i fynd i ymchwilio yn y sector breifat, a beth rydych chi'n ei ddweud yw efallai bod angen edrych—mae o'n broblem mwy na dim ond delio â chwynion ynglŷn â'r sector breifat; mae o'n ymwneud â'r ffordd mae'r sector yn cael ei rheoleiddio'n gyffredinol. 

Except that they couldn't investigate as thoroughly the private element of the journey. There are still questions about that. This would help, perhaps, but there would still be questions about how deep a right the ombudsman would have to investigate in the private sector, and what you're saying is that perhaps there is a need—that it's a problem that's more than dealing with complaints in the private sector; it's the way the sector is regulated in general. 

Ie, ond mae gennym ni'r regulatory bodies eraill, fel yr NMC a'r GMC, i sbio ar bethau felly hefyd. 

Yes, but we have the other regulatory bodies, such as the NMC and the GMC, to look at things like that as well.

Okay. Diolch yn fawr. Just going back to sanctions on private health service providers, would any of you like to suggest what might be included in the Bill in terms of sanctions? 

Shouldn't it be the same as NHS healthcare? 

It might be useful if you were able to tell us whether there are any sanctions at the moment on public health service bodies if they fail to comply with recommendations. What exists at the moment to ensure that the recommendations are implemented?

The ombudsman could choose to issue a public report on the fact that you'd failed to comply with the recommendations. I think the ombudsman's office is very good at actually looking at recommendations with organisations to make sure they are reasonable recommendations and will actually address the issues, which I think is really, really important. I think it's very difficult with private areas because they may not want to have something publicly published about them, but I think it's different to an organisation. A public organisation is quite different. But you have got the financial sanctions, obviously, of redress that's paid to an individual, and the idea is, if you take it from the legal premise, about putting people back to where they would have been before what's actually happened. So, whether there should be financial penalties against private providers, which would have effect—I don't know. I don't know what the authority would be able to be to act against private providers. I think that is quite difficult. 

Yes, but certainly in terms of reporting and making recommendations, the ability for the ombudsman to do that in terms of private healthcare providers would put them on the same footing then as the public health bodies, but your question is whether it would be as effective with the private organisations as it is with the public bodies because accountability, I guess, you know, is rather different, isn't it? 

Yes. I'm absolutely supportive of this point, because I think that people having private healthcare should have their concerns properly investigated, and it would be nice to be able to see then—to take it to the next step: well, actually, if there are issues, what can actually be done about them? So, what the sanctions can actually be. 

Yes. And as you say, if there were to be something additional for private health service providers, it might be in the nature of the financial aspects that you mentioned. Okay. Janet, complaints handling, then.

The NHS Confederation doesn't agree with the provisions in the Bill for a CHP. Can you just explain a little bit more about your position in relation to the provisions relating to complaints-handling procedures? 

As I said, in Wales we have 'Putting Things Right'. It's been around since 2011. We're working really hard across Wales to embed that. Actually, I think we've come a long way from the Keith Evans review. It's not perfect, however I think we do deal with more things in line with the regulations. The regulations are very clear that that's what we should be doing. I think the fact that we're working to say to all organisations, you know, 'You should have comparable data sets', for example—we're at the point now where we'll be able to produce comparable data sets, which will allow us to do more thematic analysis around the concerns that are raised. The idea is, wherever you raise a concern, you should be treated in the same way. We don't always get that right. A lot of the time, we do. Sometimes it doesn't go as well as it should and, actually, those cases go to the ombudsman. Not all of them, obviously; not everybody chooses to go to the ombudsman.

I think for me, what would it add from a complaints standards authority—? I don't have a problem with a critical friend and the learning from it, but I suppose I would go back to my point that the number of concerns that go to the ombudsman are a minority of the concerns that organisations deal with. To be a standards authority, you have to decide: what does 'good' actually look like? So, what is the model that is absolutely right? Well, I think the model is embedded in 'Putting Things Right', and I think that's where we're different to any other places in the UK, in that we do have 'Putting Things Right'. You see lots of things around what's happening elsewhere. There is a duty of candour embedded in 'Putting Things Right'. It is about openness and transparency. It is about proportionate investigation. It is about making sure you keep the person informed. I think they're all key points of good complaints handling.

10:55

I think the complaints-handling model could enhance PTR. When you look at the public services ombudsman in Scotland, they've got excellent training materials, an excellent website, so I think that could certainly enhance complaints handling across Wales by supporting PTR—but certainly not replacing that, because it's embedded into everything we do. 

Could you explain more around your concerns with the provision in relation to the ombudsman's independence in his investigatory role?

Sorry, could you repeat that?

Could you explain more about concerns with the provision in relation to the ombudsman's independence in his investigatory role?

So, whether his ability to set complaints-handling procedures across the piece, as it were, might compromise his independence.

What you're saying in the written evidence is,

'The more operational and involved the PSOW role becomes, there is a risk that it may be seen as less objective when reviewing how a body has implemented that procedure.'

What do you mean by that?

The closer you get, it's more difficult, isn't it?

What we heard earlier was that, within the ombudsman's office, there are Chinese walls, as they're sometimes described—you know, procedures to ensure that those that help set the complaints-handling procedure for an organisation wouldn't then have a role in reviewing the implementation of that complaints-handling procedure. Do you find that convincing or do you think there is a question there in terms of necessary independence for the ombudsman and that being compromised?

From a public point of view, I think the public would see it as maybe a compromise, and that it should be independent, rather than, you know, integrated with health and working with NHS bodies.

Okay. So, you think in terms of public perception there might be an issue there.

Yes. That might be a concern for the public. 

It's a bit like marking your own homework, isn't it? It could be perceived in that way.

I suppose there is a degree of needing to be objective, isn't there? So, you have to be objective, and sometimes you can become more subjective if you're more engaged and setting those rules. So, I think there is that. However, I suppose there is also the argument of, 'We're all here to benefit the patient', so whichever way we have of actually analysing the information we have and making it better—. That isn't something that we would want to lose, so I would welcome some of the ways that the ombudsman is working with organisations to improve things. I feel that should be welcomed, but I would actually agree with Ruth around the public perception of independence. I think that is quite important. We talked about advocates being separate, and that's important for people to use it. I think, with the ombudsman, people would want to see that as being very separate and independent to trust the reports that actually come from there. So, I think that is quite a key point. 

Could you expand further on your assertion that the role for standardising complaints procedures should be the responsibility of the Welsh Government?

11:00

'Putting Things Right' is something that's regulatory and it's something that the Welsh Government is very involved with us on through listening and learning from feedback to make sure that we interpret them in the same way across Wales, and working very much with the organisations to do that. So, I think it feels comfortable where it is at the moment, and I think it's actually developed such a long way with organisations sharing learning, sharing good practice, talking together, talking about things that have happened and how we learn. Patients are patients in whichever health board they're in, and often the challenges are the same and I think we've got much, much better at sharing that learning. And I think that's been very much through Welsh Government supporting us with things like our listening and learning events, and the Welsh risk pool and the networks that have been set up recently to share learning and to look at that. I think that's really useful and has actually moved on an awfully long way, really.

Okay. I don't know if there's anything you'd like to add in terms of 'Putting Things Right' regulations and the processes that an NHS body must adhere to when handling complaints. Is there anything perhaps that the committee should be aware of in terms of the importance of those regulations and the purpose that you haven't already mentioned this morning?

I think the impact on claims is really important because we use redress at every opportunity that we can across organisations, and we are seeing a different trend to the rest of the UK in Wales with our clinical negligence claims. So, they're more static. Lots of areas in the UK have seen a huge increase: we're not seeing that as much in Wales because we do use redress. And redress isn't just about financial compensation: it can be an apology, it can be remedial treatment. But, actually, if there is an allegation of harm, we have a duty to explain whether or not we feel we have breached our duty of care, and I think you then identify people who would go on to make a claim and you're dealing with them under the redress regulations, which is, actually, to me, saving a lot of public money, which is really important. It's not in any way good for the individual raising the concern, because they have their access to free legal advice as well, so they're protected and supported through it as well. But I think anything that actually saves public money is important, and the important element of 'Putting Things Right' is putting things right: how do we learn from what's happened and make sure we're not having to make those payments again because we haven't actually put in place things that we need to do? So, I think that's quite a key element as well.

Okay, thanks very much for that. If we move on then. The way that the Bill is currently framed, there would be a continuance of separate provisions for social care and palliative care, compared with listed authorities. We heard from the ombudsman earlier that, in practical terms, that wouldn't make any difference to the individual, to the citizen. I just wonder whether you have any concerns. Some people think they should be joined up, as it were, in the legislation. Would you have any views on that?

I feel like a record talking about 'Putting Things Right', but, actually, I think one of the things that we would really like to see is actually being able to investigate social care, because patients' journey often doesn't just involve going through a health body; it more and more now involves people actually being involved in social care. And, actually, it isn't right that they have to go through two different complaints processes.So, I think I would welcome the fact that the ombudsman would be able to do one investigation for them.

I would say my experience under 'Putting Things Right'—. If you have two health bodies, for example, involved in a concern, often people will ask for separate investigations, because I think there are still those who fear that there would be collusion between organisations if they didn't have two separate responses. And that's their right to do so, and it should be respected. But I think more and more we are seeing cases that go across social care, and it is absolutely right that there should be one system for people to be able to raise their concerns. We don't always make it easy for people, I don't think, to actually navigate through systems, and we should make that a lot easier. So, I think the ombudsman is right that they should be able to do that.

11:05

Okay, thanks very much for that. We'll move on to financial matters and Siân Gwenllian.

Diolch yn fawr. Yn amlwg, mae ymestyn y pwerau yn mynd i gostio ac mae yna un asesiad yn sôn am tua £7 miliwn yn ychwanegol o arian. A ydych chi wedi cael cyfle i weld yr achos busnes? A beth ydych yn meddwl o'r ffordd mae'r achos busnes ariannol yn cael ei gyflwyno?

Thank you very much. Obviously, extending the powers will cost money and one assessment mentions about £7 million extra funding. Have you had a chance to see the business case? And what do you think of the way that that financial business case has been presented?

Nid wyf i wedi astudio'r ochr ariannol.

I haven't studied the financial side of it.

I haven't had the opportunity to see the business case. We certainly did do a little bit of work with the ombudsman's office previously into looking at how much an investigation within an organisation costs, and that's quite difficult to determine because they go to different levels of investigation. One would assume that there would be a higher number of concerns that would come through investigation, and I think we have to consider the reciprocal impact that that would have on organisations. It is quite difficult to cost, and I haven't seen the business plan in detail, so I'm probably very limited in what I'm able to answer, I'm afraid.

I think one of the points that they're making in the business case is that, yes, there would be costs, but there would be savings as well for the public purse because you're tackling complaints, finding out the problems and then making systematic changes that means that the service is better and costs less. I think that's one of the arguments that's been put forward.

That's probably an argument for 'Putting Things Right' as well, isn't it? As we said, we're seeing a stabilisation of clinical negligence claims and a reduction.

And within 'Putting Things Right' the emphasis is on concerns raised at the time, on the spot, and enabling the clinical teams to resolve those problems, and for them to learn from them very quickly from that patient experience and feedback. So, we are seeing, certainly in my health board, the number of formal complaints reducing, but we're capturing an increasing number of informal complaints because that tells us, then, that clinicians are listening to patients' concerns and resolving them at the time, on the spot—within the 'Putting Things Right' framework.

Going back to the financial implications—there would be implications for the NHS, presumably, a knock-on—.

Unless there's some duplication with the model, really. That's what I'm concerned about, and possibly duplication and over-scrutiny, which could have a knock-on effect with increasing investigations, with some things already maybe being reviewed—I'm not sure if that would impact. But looking at the papers, that's one thing that sprung to mind, really—that there's a possibility of some duplication and over-scrutiny.

It goes back to the clarity about what they're already thinking and talking to each other—. We've already got HIW and other agencies, so you'd have to have that clarity about what their roles are and functionality, and talking together, otherwise, we are in danger of being over-scrutinised, which does have a knock-on effect on health services. So, there would have to be that discussion.

And are there other unintended consequences that you could see arising from the Bill?

I think one positive could be working more closely together in a more proactive way to resolve issues. But, again, we should be doing that within the 'Putting Things Right' framework anyway, and centring on learning from patient experience, and having support around that, because that's what lots of health boards struggle with. We have this plethora of patient-experience feedback, and how do we manage that feedback and put things right? I think the support would be very welcome there in terms of the learning from patient experience and feedback.

Yes, I would say so.

They have similar ways in Scotland, don't they, with the ombudsman?

It's ad hoc sometimes, the learning. We have got a listen-and-learning group, but sometimes that learning needs to be shared very quickly. And if something's happened in one health board, how do we ensure that's transferred to another health board in terms of learning? We have very good working relationships within the teams across Wales—and Wales is quite small—but I think there is a role to play for the ombudsman there, really. Looking at the Scottish Public Services Ombudsman's website, like I mentioned before, they've got excellent training materials for people to access, both public and healthcare workers. That's something that possibly could be shared.

11:10

Could I just ask one final point, then, on financial matters? You've highlighted that there isn't any clear method for the ombudsman to decide on financial penalties for public sector bodies. Is this something that you think the Bill should address? And if it did, what would be the likely financial implications, do you think, for public bodies and, indeed, complainants?

I think there should be some equitable framework that actually decides on what the sanctions actually are financially. Whether that should be the same as 'Putting Things Right', and you look at the tariff and, obviously, we use the judicial guidelines then. Because there is sometimes a risk that somebody can have financial compensation from the ombudsman. So, for example, for perhaps £20,000 you're talking about an avoidable death, and then they could also bring a claim. I think there is something about how we actually manage that interface. It's quite important. But I think there should be some guidance around how you decide how much you compensate for poor complaints handling—it could be quite varied. There should be some transparency around how you make those financial decisions.

And as far as you're aware at the moment, there isn't anything, then, is there, that sets out how the ombudsman decides on the level of a financial payment?

It's something that we have asked previously, and we certainly see—and I think my colleagues would probably agree—a variability in the financial penalties that are imposed. It would just be nice to see something equitable and something in writing that explains how you come to those decisions. Because I think, absolutely, it is about being transparent about how you come to that decision and we certainly, under 'Putting Things Right', with redress, have to be very clear about on what basis we have made a financial offer and I think that's absolutely right, because it's public money that we're dealing with and so we should be very clear about it. Sometimes people can not like the decision, but, actually, the process has to be very clear in how you've reached that decision. So, I think that should be something that's made a lot clearer.

Okay. Well, if there are no further questions, may I thank you all very much for coming along to give evidence this morning? You will be sent a transcript of your evidence to check for factual accuracy. Thank you very much indeed. Diolch yn fawr.

4. Bil Ombwdsmon Gwasanaethau Cyhoeddus (Cymru): sesiwn dystiolaeth 4
4. Public Services Ombudsman (Wales) Bill: evidence session 4

Good morning. Okay. This, then, is our fourth evidence session on the Public Services Ombudsman (Wales) Bill, and I'm very pleased to welcome Rosemary Agnew, the Public Services Ombudsman in Scotland, and Marie Anderson, the Northern Ireland Public Services Ombudsman. It's a bit odd to be referring to you as 'ombudsmen', really, rather than 'ombudswomen' or 'ombudspersons', but there we are, that is the title you have. Thanks very much for coming along today to give evidence on this proposed legislation.

I wonder if I might begin by asking some questions about the proposals for own-initiative investigations. Obviously, it's proposed that the ombudsman should have the power to take forward investigations on his or her own initiative, rather than on the basis of a complaint that's been made. Would you like to outline your positions on those proposals, please?

11:15

Yes. Chair and Members, good morning, and thank you very much for the opportunity to speak to you about the proposals in the Welsh ombudsman's Bill. I currently, or I will from April next year have the power over own-initiative investigations, and in Northern Ireland, it was seen very much as a power that was essential in order to improve public services and to give a voice to those who fear making a complaint, who fear retribution, or, indeed, who are unable to make a complaint because of vulnerability, disability or other potential difficulties.

The power commences in April 2018, but, Chair and Members, we have done a lot of work and research in Northern Ireland, looking at other jurisdictions and looking at how that power might operate. In terms of the Northern Ireland position, I have a discretion to commence own-initiative investigations based on a reasonable suspicion that there has been systemic failure or that there has been systemic injustice in relation to health and social care. So, the threshold is reasonable suspicion. I'm not obliged to consult, as in the Welsh legislation, with listed authorities that are in my jurisdiction, but I must send a proposal when I do intend to commence an own-initiative investigation. I believe that's something similar to what's in the Welsh legislation.

In terms of our preparation, as required by the Act, I have prepared own-initiative criteria, which I haven't launched yet but I'm happy to answer some questions on if you'd find that useful. In terms of the Northern Ireland legislation, I must publish an own-initiative investigation report. I don't believe that is similar in Wales. I believe that's left to the discretion of the ombudsman.

In terms, generally, of the value of own-initiative, I believe that there's only a handful of bodies in the Council of Europe where ombudsmen do not have both the reactive power to act on a complaint and own-initiative. It was very much seen that, in Northern Ireland, we were catching up with other ombudsmen internationally, because if you look across the globe, globally, ombudsmen usually have complaints investigations and own-initiative. So, it was very much saying that, in terms of Northern Ireland, as the first region or country to have own-initiative powers in the UK, that was something we were really catching up on. I do welcome the fact that Wales have considered this, there's been consultation, and that this power is proposed for the Welsh ombudsman. I believe it is part of the ombudsman's toolkit to deal with maladministration and systemic failure.

Okay, thank you very much for that. It's very useful. If you could say, perhaps, a little bit more about the criteria, I think that would be useful.

Yes, I'm very happy to do so, because I think that one of the key criteria must be that there is evidence of systemic failure, so that there is evidence from the complaints that I receive, or the Welsh ombudsman or other ombudsmen receive, of systemic failings. Can I just give you some data from another jurisdiction? The Irish ombudsman has a very broad discretionary power to commence own-initiative, and we looked at this when we were considering asking for this power in Northern Ireland. For the period between 2001 to 2010, only five own-initiative investigations were launched by the Irish ombudsman. So, it was a small number, but all of those were based on the trigger of complaints about the issue, so that there is evidence of systemic failure. I think that must be a key criteria for any ombudsman, albeit I appreciate that the test for the Welsh ombudsman is public interest, and I appreciate that there is a different mechanism there.

So, some of the criteria—the first one, I would say, is evidence of systemic failure or systemic injustice based on existing complaints. The second criteria—and you will appreciate I haven't published this, and this is the first time that I've discussed this in the public domain, but it is based on other ombudsmen's jurisdictions, both in Ireland and across Europe and internationally. The second is where the issue is likely to affect more people. It's not just about a single individual sustaining injustice. It's actually an issue that affects the many. It's about the many, not a small number. So, I think that is where own-initiative powers can be very powerful, so that if there is an area in health or in social care, for instance, that affects many people, then the ombudsman should have the power to look at that.

The other criteria is one that you have on the face of your legislation, which is when it is in the public interest to do so. I think it is very important that, as you have provided for in the Welsh Bill, it is left for the ombudsman to decide what the public interest factors are. But those could be around issues such as patient safety, protection of the environment, or indeed the public interest in accountability of public bodies where there are systemic failings—that they are held to account.

Another criteria, I think, might well be something where to investigate is the best use of investigative resources. So, I'm very much aware, from consideration of your financial memorandum, that in an era and times of financial constraint you must use your investigative resources proportionately and effectively. So, for instance, when the Northern Ireland Assembly was considering this issue, they looked at—and there is a paper that has been published I'm happy to share with committee—the savings to the ombudsman of investigating individual complaints where an own-initiative investigation deals with that issue. So, there are some data there. So, there can be savings on the investigative resource. What does that mean? Well, that means that instead of investigating 10 or 20 complaints about a particular issue, the ombudsman investigates under the own-initiative power, and that systemic failing is addressed, and you merely need to look at the individual for issues of remedy. So, that is another criteria.

I'd like to share with you, Chair and committee members, the fact that, in our preparations for own-initiative, what has been interesting is that we have spoken to many advocacy bodies—Age NI is an advocacy body for older people, and also the Patient and Client Council, who provide advocacy services for patients who want to complain about the health service in Northern Ireland—and what has been interesting, and I think this is a trigger, and possibly a criteria for own-initiative, is that those advocacy bodies are saying that people in residential care homes, or their families, are frightened to complain. So, while the advocacy bodies are getting issues, one of the questions is: are you going to complain or have you made a complaint? And they are frightened to complain. That, certainly, is an area—where there are no complaints, that can be a trigger or criteria for the ombudsman to investigate. For instance, I get a very small number of complaints about social care in Northern Ireland, even though, from April last year, like the Welsh ombudsman, I can actually look at social care decisions without first finding maladministration. That's a concern to me. Complaints about the independent healthcare providers, nursing homes, are small—less than 1 per cent of the complaints that come to my office. So, where there are no complaints, that can also be a trigger of concern, and that's where the ombudsman can make a difference.

11:20

Marie, thanks very much for that. If you would furnish us with the information that you mentioned, that would be very useful indeed. Could I ask you: from what you said about the criteria that apply and what's proposed in our ombudsman Bill, would it be your understanding, then, that the safeguards that will apply in Northern Ireland are greater?

Well, can I start, Chair, with a fundamental safeguard, which is that an ombudsman as described is a responsible person, a trusted official, so that one must expect that, having appointed an ombudsman, this will not be a rogue ombudsman who will go off on a frolic of their own and start looking at things where really there is no merit? I believe that any ombudsman's decision—. I'm sure Rosemary will agree with me, and my other colleagues in the UK ombudsman world—we are all subject to judicial review. If a listed authority believes that we are overstepping the mark, that we're stepping outside our remit, then it is always open to judicial review challenge.

So, there is the safeguard of the reputational protection for the office and the ombudsman that they are not seen as acting irresponsibly, but there is also the fact that there's the oversight of the judicial review court. But in terms of protections and safeguards, the ombudsman, both myself and as proposed in the Welsh Bill, cannot look at something that is not already in his remit; he cannot look at issues where there is an available alternative remedy, such as a legal remedy, and he cannot look at other issues. There are already safeguards.

I think the duty, and it is a duty in your Welsh legislation, to consult is something that probably goes a bit further than the position in Northern Ireland. I have a discretion to investigate, and I must inform a listed authority by way of a proposal, but I am not required to consult. Now, obviously, good administrative practice and the principles of good administration mean that if I do issue a proposal that sets out the criteria and the reasons for an investigation, like the Welsh ombudsman, I should be considering those and giving them due consideration. But ultimately in Northern Ireland, that is a decision for me. 

I think the important thing for me is that one of my concerns—I hope you will forgive me—when I read your Bill is that Welsh Ministers can set criteria or can amend, delete or remove criteria in relation to an ombudsman's investigation on own-initiative powers. And I do have concerns that that may in some way undermine the independence of the ombudsman, and I don't have that similar constraint. I do believe there are adequate safeguards in the Bill, and I think also that the value of own-initiative—and I'm very happy to come back and speak to you at any time about my experience—the value really is in picking the right subjects and looking at the right areas to identify systemic failing, and reporting on those. 

One of the safeguards that I have in my Bill that is not in the Welsh Bill is that I must publish an own-initiative report—I have no discretion. And I think that's very important because with publication and openness and transparency, I am accountable not only to the wider public but to the Assembly in terms of publishing any investigation report, so that the public, the Assembly and other stakeholders can scrutinise my work. 

11:25

So, the reports would be published individually at the end of a particular investigation.

Yes, I must—. I have no discretion; I must publish where I investigate and issue a report. I must publish. And I think—

No, it is an entirely separate—. The provisions in Northern Ireland legislation provide for a duty to publish. In fact, it is the only investigation report that I must publish. I have discretion with my other investigation reports to publish when it's in the public interest to do so. I think the Northern Ireland Assembly felt that it was such a significant power and that, obviously, it had to be exercised responsibly, but also there are issues around value for money and whether the investigation raises public interest issues by itself. And, therefore, the duty to publish is on the face of the Public Services Ombudsman Act (Northern Ireland) 2016. 

And would there be any scrutiny before you went off and did an initiative—?

None is proposed. I currently don't have a formal reporting mechanism to a committee of the Assembly. Sadly, the committees are not in operation at present, but I hope that that will happen in the future. I report to the Audit Committee of the Northern Ireland Assembly in relation to my resources, but not in relation to the subject matter. If we did have a fully operational Assembly, I would expect that a subject committee like the Committee for Justice or the Committee for Health or the Committee for Education—that that's something that—. While I'm not required to lay my report before the Assembly, I would welcome presenting those reports to the committees of the Assembly where the relevant subject matter can be debated, perhaps other evidence taken, and I see that—

Would you welcome that step to happen before you actually embark on an investigation?  

No. Just simply, the safeguards that are available obviously are that I could be judicially reviewed on a decision to commence an investigation, and that I must share my proposals with the listed authority. So, there is no scrutiny of that before. And I think that's important, because I think on ombudsman's discretion, I think it's important that the ombudsman is able to exercise his or her discretion, and then the scrutiny is left until after the event. But can I just add on that, on own-initiative powers? I say that it's a toolkit, it's part of the ombudsman's toolkit, but it is also, I think, a very valuable tool for committees of an Assembly or a legislature, because they could invite an ombudsman to commence an own-initiative, or, indeed, they can use an own-initiative report to scrutinise the activities of Government and to hold the Executive to account.

11:30

And how many of these reports do you envisage you will be producing?

With the former ombudsman, I was very clear—. Formerly, I was the deputy ombudsman in Northern Ireland. We were very clear when we asked for the power that we did not envisage large numbers of own-initiatives. A small number of high-impact cases—I mentioned the criteria about having impact on the wider public, not just on an indiviudal—and to have a programme of those—

Well, I think there is a practical bit to this, which is, from my discussions with the European ombudsman, who also has this power, and with her staff, you may have a number of proposals, say you have half a dozen, or eight proposals ongoing in a year, and some of those proposals may fall away. So, it is perfectly open. As in Europe, what the ombudsman for the Netherlands does is if you present a proposal, which I think is an important part of the safeguards, but also an important part of the process, if you present a proposal to a body, you may find that they say, 'We are aware of this issue. Thank you for highlighting some of the issues and we would like to enter into negotiation to settle this issue.' And I think there should always be a discretion on the part of the ombudsman to allow the body to say, 'Yes, thank you for that, we will settle.' So, there may be a number of the proposals that fall away and may not reach full investigation and then be reported on.

Okay. Thank you very much for that. Rosemary, would you like, please, to tell the committee your position from a Scottish perspective on these matters?

Good morning. Thank you for inviting me. It's lovely to be back in Wales, if only for one rainy morning. [Laughter.]

Well, it was like getting off the plane in Scotland, only warmer. [Laughter.] We don't currently have own-initiative powers in Scotland, but it is something that we have made a business case to the Scottish Government, to the Ministers, to consider. I'll try not to repeat some of the common points that Marie and I have, but I think it is really important to emphasise the context.

We're seeing it as something as new and innovative here, but particularly amongst European ombudsmen, it is the norm. And when you say to them, 'I am seeking own-initiative powers' they sort of look at you and say, 'Why? Don't you have them already? Isn't that part of what we do?' And I think that is a really fundamental point. If you want a modern, progressive, impactful ombudsman service, and ombudsmen, then we have moved on considerably from simply looking at individual complaints.

They are really important, and remedying personal injustice as a result of maladministration, you can't argue the importance of that. But we now are in a position, and the way public services are delivered, where I don't think that's enough anymore. You don't get to systemic points in the same way through individual complaints. What they provide is a really good indicator of where there may be something that you need to look at. And if somebody doesn't have the powers to look at them, and look at them independently, impartially, in a structured and constructive way, then I think you're losing or missing a very important thing.

I'm also deeply envious of Marie for having these powers, and I commend you all for having it in a Bill that we're now discussing. But if I explain a bit more about the context: as we see it, it's part, not just of a toolkit, but a cycle, where, if we're not careful in relation to public services—and let's keep public services and service users at the heart of this because this is about people—we're in this circle of individual injustice that, very often, can be the result of systemic failure, but you may not, within the scope of one complaint, be able to get to the root of that. What you then would hope would happen is that there is learning and you will put right the systemic failures that will lead to improvement and that will reduce the amount of individual injustice over time. But in reality, that circle doesn't always go smoothly because you need to be able to do a bit more than look at a series of complaints. So, it's about trying to turn what could almost be a vicious circle into a virtuous circle, and you need, as Marie said, that toolkit.

In Scotland, our rationale is predominantly the same, but we have a few other points that are probably worth considering. Under my jurisdiction at the moment, if a complaint is abandoned or the complainant no longer contacts us and we can't pursue it, then I cannot pursue that—I have no locus to do that. This is not uncommon; it's not prevalent, but it's not uncommon in complaints from particularly vulnerable groups. So, for example, somebody who complains to us at the point that they're becoming, or have become, homeless, they might just fall off the radar. Somebody who has come out of prison may not have an address to go to and may not wish to pursue it, and there could be something of huge public interest in what that individual is complaining about. At the moment, I just have to park it; I can't do anything. And it does come back to Marie's point about public interest, but it's also an opportunity to look cross-sectoral, but also between sectors—health and care; education and health—because there are often links that you don't realise until you start analysing the intelligence that you have about your own complaints: what we are learning through the Complaints Standards Authority as well, and what we are learning through being part of wider networks like Health Improvement Scotland.

But it also, I think, really highlights the need to be able to take a multidisciplinary approach in what is now, predominantly and increasingly, a multidisciplinary public service that we have, particularly in health and social care. Because, without that ability, what you have is a danger that people will fall through the gaps, and it is people—I keep coming back to this, but it is my bugbear—this is all about people and what we have to be careful of is that we don't put in place too much in terms of legislation that has lots and lots of detail and, 'You must do this; you must do that.' What I think is really good is a framework that enables us to work together on this. It comes back again to: you have to trust your ombudsman. We're all good guys really, you know, and girls, I suppose.

The other thing that struck me when we were putting our business case to Parliament—the Scottish Government—was that I tried to put myself in other people's shoes: what would worry me about this? What would worry me is that, however well-meaning, an ombudsman might go off on one, and you've just heard me use the word 'bugbear'—it's not inconceivable—what would worry me is that it would commit resources to something that shouldn't have them committed to. What would worry me is that somebody, somewhere, has to fund it. What would worry me is that ombudsmen might try and start getting involved in political issues that are outside their remit.

What holds us to account very often is this issue of transparency. I was information commissioner before I was ombudsman, and I'm very committed to concepts of transparency, and they have to be transparent at the point of delivery to be really effective. So, how would we be transparent? We would be transparent by telling people what we were going to do. We would be transparent by reporting on what we have done, although I probably differ slightly from Marie as I would prefer to retain a discretion there, because there are some subject areas where, although I can publish in the public interest, I sometimes have to not publish or publish in a different way because of data protection or personal issues where you might be able to identify individuals. 

The other thing that we've proposed that is a different model to the Scottish Government is that, in addition to whatever you do as you go along and at the end of a particular investigation, I have a duty to make a single report each year to the Parliament, explaining how I've used my powers, even if it is to say, 'I have not done any this year.' That also comes back to this point that the evidence from talking to my colleagues around Europe and in Ireland is that this is a sparingly used power. This is about making a very clear, very focused investigation of something, where you go into it with a reasonable view that there will be something that needs to be said and you can have impact.

So, in terms of all of this, yes, I support entirely Marie. I've added those points to it, but I feel I can't commend strongly enough for you to pursue this one, because from my own selfish point of view what you would be continuing is a development of modern ombudsman services in the UK. I think it is so important for us that we're not left behind in terms of how we can contribute to consistency across the board.

11:40

Can I just raise one general point that we've haven't covered? This business of duplication. I can see completely systemic failures across different sectors and the need for that kind of overview, but if it's a systemic failure within health, say, shouldn't it be up to the health sector to be learning from that experience and moving on?

It's a genuine concern and one that was raised during the debates on the own-imitative powers in the Northern Ireland Assembly. A key provision, which I believe you have in sections 64 and 65 of the Welsh Bill, is that there must be information sharing between the ombudsman, other ombudsmen, and regulators in the relevant sectors. In this, I have to say, we entirely plagiarised what was in the Public Services Ombudsman (Wales) Act 2005. So, in this, we borrowed from you in terms of information sharing. Information sharing avoids duplication.

What has been my experience in working towards the own-initiative powers from April next year is that I've had a number of discussions with the RQIA, which is the Regulation and Quality Improvement Authority for Northern Ireland—the equivalent of Care Quality Commission in the health and social care sector. I've actually now signed a protocol, because I'm under a duty to consult RQIA and to co-operate and to share information about an investigation with that body. I've signed the first ever information-sharing protocol for the purposes of avoiding duplication. 

I have also entered into discussions with the Northern Ireland Audit Office, with the comptroller and auditor general, to enter into a similar arrangement, and with the Northern Ireland Human Rights Commission. It's early days, but my discussions with those bodies were not that they saw this as duplicating what they can do, but actually that it is complementary, and that where there are gaps—. For instance, recently, the Comptroller and Auditor General for Northern Ireland looked at the costs of homelessness in Northern Ireland. What the comptroller and auditor general could not do, and is not mandated to do, is look at the effect of homelessness on individuals—back to Rosemary's 'person'. We bring the individuals' experience as part of the debate. 

So, in my discussions with the human rights commission, with the children's commissioner for Northern Ireland—because I have an extended jurisdiction in relation to universities, colleges and schools—in those discussions, they are not saying, 'Oh please don't, ombudsman', they are saying, 'We welcome this, we see it as complementary.' But without those provisions that you have in the Bill, which again are a safeguard to avoid duplication—without those provisions and without the protocols and the arrangements that sit behind them, then there is a potential for duplication. And let me say this: I worked for 17 years in the Northern Ireland Housing Executive and public authority, so I very much understand that, as a member of staff of a public body that delivers front-facing public services, you can feel overwhelmed and fatigued. I call it accountability fatigue. If you have so many bodies asking you, for instance about homelessness, and you have so many different bodies asking the same questions, then not only do you feel fatigued, it can affect the morale of those who are delivering public services. So, it is absolutely essential that the ombudsman does not duplicate that which is properly the role of others, but rather complements and supports.

And just another kind of practical tip: in preparation for own-initiative, it's my intention to establish a forum, of me and other regulators in Northern Ireland, so that we meet six-monthly to find out, 'What are you doing? What is your programme?', 'What are you doing, criminal justice inspectorate, in relation to justice issues?', 'What are you doing, Regulation and Quality Improvement Authority, in relation to health and social care?'—so that we have real-time decision making, not just something that I look at in a strategic plan that tells me for the next three years. So, I think that forum—and I'm about to send out letters of invite—I'm very happy to host the first forum, and we'll do it sequentially around the other bodies. But I think that that's important, that not only the legislation, not only the protocols, but the dialogue is ongoing.

11:45

Okay. We do need to move on, but before we do I just wanted to ask a further question of you, Marie, and that's in relation to, I think, your plans to create two senior investigation officers, and ask whether that's related to the own-initiative powers.

Yes, we actually have now recruited two senior own-initiative investigators. They are at the equivalent of the Northern Ireland civil service deputy principal level. This was not done without serious thought and research in preparation for the legislation. We looked at own-initiative powers in the human rights commission. We looked at the European Ombudsman. The European Ombudsman looks at complaints about the European institutions, the European Commission, and the team there is two persons, with perhaps one person joining as necessary. It was felt that we needed a small, discrete team, and when we looked at the Northern Ireland Audit Office, who have value-for-money powers, and we looked at the Police Ombudsman for Northern Ireland, who also has a type of own-initiative power, and he—that's Dr Michael Maguire—calls it 'call-in'— . The Police Ombudsman for Northern Ireland investigates, not necessarily based on a complaint from a member of the public, but he calls in his own investigative powers.

So, when we looked across other organisations, we found that, proportionally in Northern Ireland, a small team of two persons was sufficient. There were two models put before the Northern Ireland Assembly, who independently tested those models that we suggested. One model was for two senior investigating officers, at a cost of just over £90,000 a year. The other was for one senior investigating officer, a staff officer at a junior level, and administrative support. And the Northern Ireland Assembly went for the two senior investigating officer model, as the cheaper model. It's not to say that there isn't—and I really liked the way the financial memorandum was set out, supporting the Bill, because it's not to say that there wouldn't be other, indirect costs across the ombudsman's office—. One of my proposed selection criteria for own-initiative is that I have complaints about an issue. So, I will be calling on staff and the intelligence in the office from other staff who are investigating—maybe at the front-of-office team or elsewhere—so I'll be calling on them to share their information, to share their experience. So, there is an indirect cost there.

Hello. Could you just outline your views on the provision relating to the removal of the requirement to accept written complaints only?

This, again, is something that we have requested ourselves in Scotland—slightly different wording. What we are asking for is the ability to take complaints in any format. The reason we've worded it that way is—just reflecting back on methods of communication in the last 10 years, they've changed so much we were trying to put forward a proposal that would futureproof and not confine us. Now, we've a number of reasons for this, and I'm sure these are some that you've heard, but we have a slightly different take based on our experience too.

As part of my wider function, my organisation is the reviewer for the Scottish Welfare Fund applications. This, essentially, is a benefit, and we are the final stage, but what we have found is because this is things like crisis grants, it's the most vulnerable who are making these applications. We started taking our review requests by telephone, and what we found is that 72 per cent of all initial contact last year from these vulnerable groups was by telephone. What we saw was a 20 per cent increase in the number of crisis grant reviews compared to the previous year. Now, if we try and unpick this a bit, there are all sorts of reasons that we can attribute to why vulnerable groups may be more likely to use a complaints system or a review system that is based on telephone contact. It may well be as basic as they can't read or write, but it can be even more basic than that in some occasions. If you are homeless, where do you get a pen and paper from? It doesn't preclude you from having an advocate, it doesn't preclude you from getting help, and in many ways it enables a better conversation to help those who need advocates or need other support to get that.

Now, there are some concerns, though, I think, around would this lead to even more bureaucracy: how do you verify the complaint— how do you verify what it is? Well, our take on this is it's for the ombudsman to say that a complaint is competent and properly made. But the reality of investigating complaints is, however they are made, you still have a conversation, you still have contact, you still talk to people, you still explore what their complaints are, you still look for whether they need signposting or advocacy support. What it's really doing is changing the mechanism for the gateway.

Having seen the rise in contact for the Scottish Welfare Fund, which is a very basic thing, what we are saying in asking for the power ourselves is not that we see our business model changing and that suddenly everything is by telephone, it's to give us the flexibility to tailor it to what we think the complainer will need, or if there is a strong preference put forward. Because at the moment, I can—I do have the flexibility. Although it says, 'Complaints normally in writing, except in exceptional circumstances', I could take things over the phone, but the significant difference is it's the complainer, really, who has to justify 'exceptional circumstances'. If I have the discretion as an organisation to take those complaints by phone based on my interaction or based on what I know about the person or that type of complaint, I think it would make for a much smoother, much more accessible system.

So, it's not really about fundamental policy change so much as recognising that for a modern service—. You can access so many public services now digitally, on the phone, yet you come to an ombudsman, which is probably the most stressful end of where you've been, because you've been all the way through everything else, and what do we say? 'Write us a letter. Fill in a form.' So, I think this is about helping us develop a modern service. So, when I look at it in that context and look at what you're proposing, I think it's only to the benefit of service users.

11:50

I think we're quite interested in the criteria that you have or would have for accepting complaints orally.

Since April last year, in terms of contacting my office,the bar for written complaints was removed. So, it was previously 'must be in writing' and now I can accept complaints in any format. I have to say that there are no criteria for accepting those complaints. I believe to do so would set another barrier, because when the Assembly decided to pass legislation to remove the requirement for writing, it was about accessibility—it was about increasing accessibility to the ombudsman service.

My experience, and the experience of my staff since April last year: it has not increased hugely the number of complaints to the office. It has not been a huge administrative burden, and I think that is in part because, previously, in order to submit a complaint in writing, if someone came to the office—say, if it was someone with mental health or literacy issues—we would have had the support of an advocacy body. So, it has not resulted in a huge increase in complaints nor, indeed, in any cost. 

11:55

Okay, thanks for that. Just in terms of advocacy support, do you have, or do you think it would be desirable to have any particular requirements within legislation for advocacy support? 

I think it's important that it's recognised that, in practice, there should be a complaints system that encourages resolution, support and help. For me, the risk of putting too much detail in legislation is that you inadvertently create barriers to speedy resolution and you inadvertently put barriers into the relationship. For me, the advocacy side is understanding and having a good relationship with your complainers, with the bodies that are complained about, and with others in the third sector so that you can provide really good guidance and support. If you were to make it an absolute requirement, I think you would detract from actually giving a good service because it is a good service. It's essential—it is essential that people know about advocacy when they need it, but, really, advocacy should have started with the complaint itself, with the public body. By the time it gets to the ombudsman, very often, people have their advocate with them, they have somebody who can support them. So, a lot of the advice that we may be giving is before people even come anywhere near the ombudsman—they just make a general enquiry and you say, 'You could go to so and so—they will help you and they will help you'. But if you think about health complaints within Wales, for example, you've got a very good synergy with things like 'patients first', which are all about helping patients and helping resolve matters. So, the advocacy needs to be long before it comes to an ombudsman, in my view. 

I agree with Rosemary. I don't believe that you should have a requirement on the face of the legislation to have advocacy support. I'm very mindful that you have already provision and flexibility—you've given flexibility to your ombudsman in the Welsh legislation, which allows any person to act on behalf of the person aggrieved, the person who has sustained the injustice. You already have that flexibility on the face of your legislation, and I think you have to leave it up to the individual.

This debate—it's interesting to have this, because I recently participated in a survey undertaken by the Competition and Markets Authority in relation to independent health service providers in relation to care homes, which—. They have just, actually, reported on 1 December in relation to across the UK, and the importance and value of advocacy services for individuals who are in institutional care has been highlighted. But I think you already have that in your legislation.

Okay. Just one further matter: Marie, you mentioned that there hasn't been a significant increase in case load, then, from the own—

No. But there was a significant increase, apparently, in enquiries and complaints in 2016-17.

Sorry, there was an increase—. Yes, I've just issued my annual report, and complaint contacts are up by 12 per cent last year, 2016-17. So far, in the first six months of this year, the complaints to my office have increased by 25 per cent and contacts by 90 per cent. I have checked this and it is not due to the ability to make a complaint orally. There were other barriers removed under the new legislation, which were that—. There was the removal of the Member of the Legislative Assembly filter, which I believe that you removed in Wales a long time ago. So, in terms of complaints about central Government and their agencies, you no longer are required in Northern Ireland to get MLA sponsorship. So, that was one of the accessibility measures. The other accessibility measure, which I do believe has had much more of an impact than the issue of oral complaints, is that all listed authorities are under a statutory duty to signpost to the ombudsman.

But part of the increase, I have to say, Chair and Members, has been in relation to the extensive remit in relation to education. I can now investigate complaints about universities, colleges and, from 1 April of this year, schools. In terms of schools, we are receiving double the number anticipated in relation to schools in Northern Ireland—complaints. So, part of it is extended remit, and part of it was removing the barriers.

12:00

Or the creation of a culture of complaining, which is the downside of all of this.

I really don't believe that there is a culture of complaining. Certainly, I haven't seen it in Northern Ireland. I get asked frequently whether I see vexatious complaints. I certainly see individuals who have been complaining for a long time about issues. I believe a culture of complaining—. I believe that complaints are opportunities for learning. That's what I believe. I believe that they are opportunities for learning. I know that Rosemary certainly will speak to the impact of the Complaints Standards Authority in Scotland, but, actually, what all ombudsmen are required to do is say to a complainant, 'You must go to the body first and complain—give them an opportunity to reply, to respond to your complaint, and to learn and improve because of the complaint.' So, we are the offices of last resort. They must complain to the body first.

I have to say, in terms of my experience in social care, where there's impact on the individuals, whether it's access to domiciliary care or it's the impact of a social worker's decision on a family that has been fractured by marital discord, the lower numbers of complaints actually cause me concern—that there's not a culture of complaint there. I'm also very much concerned about that fact that the care homes—. When we think that—like Wales, we have an ageing population in Northern Ireland—most of us at some point will have either experience of a loved one, a member of the family, going into care, or indeed ourselves—. When I think that there are very low numbers of complaints, then I'm actually concerned about that.