National Assembly for Wales

We'll move on, then, to item 2, which is papers to note. Are we happy to note the papers for the record? Lovely. Thank you very much.

So, we'll move on to our substantive item this morning, which is the post-legislative review of the Public Services Ombudsman (Wales) Act 2019. This is the first evidence session. We're joined by our witnesses this morning: the ombudsman and staff. Would you mind introducing yourselves for the record?

Yes, of course. Good morning, bore da. Michelle Morris, Public Services Ombudsman for Wales.

Lovely.

Bore da. Katrin Shaw, director of casework and legal.

Lovely. Croeso cynnes—a warm welcome to you. This is a review taken in accordance with section 73 of the 2019 Act, which requires the Senedd to prepare and publish a report on the operation and effect of the Act as soon as practicable after the end of the five-year period from when the Act received Royal Assent. So, we're in that period now. In line with our responsibilities relating to the oversight of the ombudsman, this committee will be doing this work. This is particularly noteworthy given that the 2019 Act was introduced by our predecessor Finance Committee, and two of you as members of this committee now were on that committee at the time, so your expertise will be helpful in that.

So, we'll start by going through and exploring how successful the implementation of the 2019 Act has been, and the perception of the Act by the public and by you as the ombudsman. Can you outline the key developments your office has seen following the implementation of the 2019 Act, and how significant the Act has been for how you work and whether, overall, it’s been a successful change?

Thank you. We really welcome the review the committee's doing and our opportunity to participate in this. We do feel that we've made a good start on introducing the legislation and implementing the new powers that the Act introduced for PSOW, but we recognise there's a lot more work to be done and things that I think we've learned during these first few years that we would want to embed and take forward in the years ahead.

In response to your question about the specific things that have been introduced, firstly, the Act allowed us to take oral complaints, which weren't previously permitted. I think the purpose of this—Members here who were part of this will be closer to this than me—was around making sure that our service was accessible and we weren’t restricting people to having to make complaints in writing or even digitally, for obvious reasons. We want everyone in Wales to be able to access this service when they need that support. So, the oral complaints process has been introduced and is successfully operating. Perhaps I won’t go into any more detail at this stage because I'm sure we'll come back to this during the evidence session. So, that's very much up and running and operating successfully. We continue to adjust and, hopefully, improve that process as we go. Making sure that everyone is aware that they can make a complaint verbally is really important—that they don't see digital or, indeed, having to put things in writing as a barrier. So, that was the first change.

I think, secondly, it was about introducing own-initiative powers to the ombudsman. So, when this was introduced in Wales as part of this legislation, it was only Northern Ireland in the UK that had this power. My colleague in Northern Ireland had it. It still is not a power that ombudsmen have in other parts of the UK, but it is prevalent in many international ombudsmen. So, what I'm trying to say there is I think the introduction of this in Wales was very forward thinking. It meant that the legislation was very modern and up-to-date in respect of the services that an ombudsman can and should provide. And the purpose of the own-initiative was, obviously, instead of tying our work specifically to complaints, it was allowing us to look beyond complaints. So, the wider own-initiative means that we can focus and I can focus investigations on sectors or issues within the public sector, even if I haven't received a complaint about it. And the purpose there again was to make sure that this service was accessible for those who were perhaps less likely to come forward and make a complaint to us, that perhaps were not in a position to, but nonetheless it doesn't mean that the issues they're experiencing shouldn't be investigated. So the wider own-initiative was for that particular purpose, and we've undertaken two wider own-initiatives in the time since we've had the legislation, one by my predecessor and one by me. Again I'm sure we'll come on to talk about those a bit more.

The other important aspect of the own-initiative power was the ability to extend investigations, and, again, we've done this on a number of occasions over the last five years. What that means, instead of being tied again specifically to what the complainant has brought to us, we can look at it and say, 'Actually, we perhaps need to go a bit further to really understand what's happened here.' And we've done that successfully I think. It's a very powerful tool that I have as ombudsman. For example, healthcare is increasingly complex these days, isn't it? People don't necessarily just go to one health board; they might be referred to another one, and it might be in Wales, it might be outside of Wales. This extended OI power has enabled us to extend our investigations to look at other bodies other than the one that the complainant has necessarily complained about. And that has helped us to identify areas of maladministration and service improvement or systemic improvement that's needed, which we wouldn't have identified if we had just stuck to what the complainant had told us. So, those extended OI powers are very, very important and we've used them, I think, well over the last few years, and want to continue to do so. And to say, on the wider own-initiative powers, we looked at homelessness, looked at unpaid carers. Those are sectors of the community or people within the community that don't find their way to us, don't bring complaints to us in general. And so we've used the OI powers to go there, using those new opportunities.

The third area to mention then was complaints standards. The new legislation gave us the power to set complaints standards for the Welsh public sector, and to introduce that across the Welsh public sector. That meant setting out model complaints. The point here is to improve how complaints are handled across the public sector in Wales, but also to try and introduce a situation where people's experience of making a complaint doesn't differ in different parts of the Welsh public sector, because everyone is using a similar policy and procedure. I think we've had a lot of success in that particular area. We'll talk a bit more about that later, perhaps, but we've now got 54 public bodies that are part of that complaints standards work. We want to go further than that across the Welsh public sector, but those 54 bodies include all principal councils in Wales, includes all health boards, and we're about halfway through the housing associations in Wales. And those are the ones that account for about 80 to 85 per cent of the complaints that we see. So, we've gone for those sectors because they drive a large volume of our complaints. Again, we can talk a bit more about that in future as well.

The other area then was around private healthcare. It's a very specific power we have there. Really, we can only deal with complaints if the private healthcare treatment or provision has been linked to a public service—so, for instance, if someone's been referred from the NHS into the private sector and there's a linkage there. So, we can't just look at all private healthcare; it's very specific situations. That's the power we've used the least—limited use of that over the last few years. Again, we can talk a bit more about that. But we still think it's an important power for the ombudsman to have because it seems inevitable that people will be in this situation more often—that they will be, perhaps, referred into the private sector or be using private sector services, and it's important that that provision is there for them in the future. So, it's early days on that one, we feel.

So, those are the main powers that have been introduced as a result of the new legislation. I think you asked then, Chair, just about the impact that that's had. We've put in quite a detailed consultation response to your inquiry, and we've put in there quite a lot of information. We've tried to go out and look at how this has impacted. It's all very well to say we've done this, but how has it impacted on the citizens of Wales? I think there's some really good evidence in there. We won't be able to go into all of this today, I appreciate, with the time we have, but there are good case studies where we've gone back and talked to people about the impact that these powers have had on them in the situations they've found themselves in.

But I think the one thing I would just pick out—and I'll finish—in response to your question, is that we've just done some—. We do research regularly, as you know, with stakeholders. The research we've done recently shows that confidence in the office and the work that we do is now at 79 per cent within the Welsh public. That's gone up 9 per cent since 2020. So, I think I'm very assured by that high level of confidence that people have in the work that we do, and I think the new powers have helped us to extend our impact. We've tried to demonstrate that, and I'm sure we'll talk about some of that this morning as well.

Rhianon wanted to come in on a point there.

Just very briefly, Chair, if I may. Thank you so much for those introductory comments. In terms of the wider investigatory powers—and you were very clear in what you said—you mentioned they've helped you identify maladministration. Without going into any detail, is there any more light you can shed on that because that was part of the original impetus for looking for thematic areas based upon the amount of complaints, et cetera?

Yes. In terms of the wider own-initiative, as I said, we've done two investigations. One was done by my predecessor. That was the first one, and that was regarding provision of services for homeless people in Wales. Again, there's detail in our consultation response where he did find areas of maladministration, and recommendations were made to the three local authorities that were involved in that investigation, and also wider recommendations that we asked other local authorities to take on board, although we don't have the powers to do that beyond the ones we've investigated. We might touch on that again a bit later.

In preparing for this review, we also went out and did some work—Ruth Marks led a piece of independent work for us—to go back to third sector bodies and to look at what they thought the impact of that work was. We got some good feedback from the housing sector about the impact of that OI, about the issues it brought forward and some of the conversations and the issues that it raised. So, I think that shows the impact and the power that aspect of the legislation can have.

More recently, I've done an OI on unpaid carers as well. Again, we don't tend to get a lot of complaints from unpaid carers, yet we know it's a hugely important sector in our health and social care system in Wales. We worked with four authorities on that and made some important recommendations. Again, we've detailed them in the consultation response. So, none of those things would have happened if we hadn't had that own-initiative power introduced in the 2019 Act.

Thank you very much for that. So, you're painting a very good picture there in the evidence, and that the increase in confidence can be linked, in your own words there, to the powers. Looking back at the five policy objectives that were laid out in the 2019 Act—things like improving social justice, protecting the most vulnerable, driving improvement in public services and complaints handling, among other things—from the evidence that you've gathered and your experience, are they being delivered? And going on from what you were talking to Rhianon about there as well, does the Act have enough teeth, with those recommendations, to be able to take that on to the next step, and say—? The 'so what?', I suppose. After you've reported, it's the follow through.

Yes. Well, if I take that bit first and then come back to the first part of your question, I think one of the things we'd highlight with the own-initiative powers, particularly the wider own-initiative, is we'll do an investigation and we'll focus on—. For instance, when I did unpaid carers, we focused on four authorities. There was a rationale for that, and that was spelled out in the report. I can only, then, make recommendations to those four authorities, because they're the ones we investigated. We will follow those up. We do compliance work to look for evidence to ensure that they have delivered on those recommendations. That's an important part of what we do—we don't just do the report and walk away; we go back and ensure that compliance has been met. But I can't do that with the other local authorities, because I haven't investigated them. I can say, 'These are our recommendations, and they apply to these four authorities, but we actually think there's good practice and things that other authorities should look at as well', but I can't go back and enforce that compliance, if you like. So, I think that is something we have said in our consultation to ask the committee to consider—that would add a bit more teeth to it, if we were able to say, 'Look, we've found this through our investigation, and we think this represents best practice and things that all local authorities, all health boards—or whatever the sector is that we're working in—should look at.' So, that is a limitation of the wider own-initiative powers at the moment.

Back to your question about have we delivered on those policy objectives: yes. I don't want to repeat what I've already said, but I think we feel, as I said at the beginning, we've made a good start, and we're five years into the new legislation. I think we've learnt a lot—I've certainly learnt a lot since I've been in this role—and we'll try to take that learning and improve as we go forward, so we can build on this work further. I think this review is a really timely chance to sit back and have a look at what has happened and think about what we've done and where we need to go next and where our focus needs to be next.

I should say as well, and it's perhaps obvious, but I'd probably better state it, that the timing of the launch of this Act—. So, the powers came into force in the middle of the summer of 2019. The pandemic struck in March 2020—no-one could have envisaged that. So, I think it's just to ask the committee to be mindful that the context that the office had to operate in, as indeed the rest of the public sector had to operate in, within those first two years of the legislation was significantly challenging in terms of introducing some of these new initiatives, and that led to some delays in introducing some of that work early on. But I think we've made a good start within that context, improving social justice and equal opportunities; I've talked about the oral complaints. But, again, looking at impact, 86 per cent of respondents from our recent research agreed that our service is accessible, and that's what we want. We want people to feel, whether they use it or not, that the service is accessible and they know how they can reach us if they need to.

In terms of protecting the most vulnerable in our communities, well, again, I point towards the OI work, because we're able to look at where the data tells us we're not getting complaints, which are the sectors we think we should be looking at, and those powers have been very powerful to help us look at those groups. And I think there's more we can do with that power in the future.

In terms of being responsive, well, I think, again, the oral communication is about being responsive, it's about saying that you can make a complaint to us, you're not restricted in how you can do that, and I think the impact is coming through on that. We've taken 700 oral complaints since the start of the legislation. We've got some really powerful impact statements from people who've used that oral complaints process. It shows the impact it's had on them individually that they've been able to do that. So, I think that's—. It's a relatively simple change, but it has had a positive impact, and I think it means we are more responsive to citizens.

The driving improvement in complaints handling, that's all about our complaints standards work, which we'll come on to talk about, and there's been good progress made with that, and I think good collaboration and good work with public sector bodies regarding that as well, and we're seeing some positive things. Again, impact shows that people now find it easier to make complaints into the public sector and are generally more satisfied with the outcomes they get. So, we hope that some of the training and the work we're doing across the public sector is starting to show some benefits.

One of the things that's close to our hearts here in the Finance Committee is the regulatory impact assessment on any Bill, because it talks about that. One of the projections within the RIA in 2019 was a decrease in case load—and you've alluded to it earlier—the decrease in case load that would occur from your own-initiative powers and complaints handling standards powers. But then your complaints have gone up, rather than down. Is that an aspect—? You may be able to unpack that for me and that, but, given that there's a 37 per cent increase in case load since 2019, how does that square off with what the Act was trying to do? Obviously, we had a pandemic in the middle of it as well. Have you been able to analyse why that's happened, and are you on track to seeing some of that benefit? Is that a delayed effect, because of events?

Okay. We've got a slightly different interpretation of what the RIA says, actually, on that, okay, and we've gone back and looked at this. We don't believe it said that the case load would reduce from the level it was at. I don't think that would have been realistic, given the challenges across the public sector that we had prior to the pandemic, let alone after it. My interpretation of the RIA said that what the Act would do, and the new powers would do, would be to stem the increase. So, the subtle difference there, obviously, is we're trying to reduce future increase, rather than say, 'Actually—

So, slow down the increase.

Yes. That's a better way of putting it, thank you, Chair: slow down the increase, rather than reduce the numbers from where they were in 2019. So, that's how we see the RIA provision. And there was—. It's quite a complicated document, as you will appreciate, but the way it was set out in the RIA is it projected that complaints would increase. As we know, projecting complaints forward is quite a tricky issue, but it made a projection that complaints would increase between 5 per cent and 12 per cent per annum over the five years of the start of the Act. Now, that would have resulted—. I'm sorry, this is a lot of numbers here that I'm giving the committee, but this would have resulted in an increase in complaints of 7,300 and 11,600. If we look at where we actually ended up, then we've ended up in the midpoint; we've ended up, after the five years, at just over 9,800 complaints.

Okay.

So, I suppose, what I would say to you is: yes, we're above the 5 per cent level, but we haven't hit that top projection that—

So, the RIA, in that interpretation, therefore, was about right?

I think so.

As good as it could have been at the time.

We've hit midpoint, remarkably, pretty much on the nose; I did check those figures and we have hit about midpoint. And what the RIA says—. Well, if we hadn't had the 2019 Act, if we'd been running with the 2005 Act and the old powers, then, actually, complaints could have got as high as, at that midpoint, 12,000. So, we've actually managed to—. Based on that projection, we've actually managed to slow down the increase, as you say, to—

So, what it says is the RIA and the actual match up pretty much—? So, you're confident that the projection has turned into reality, even though we've had a pandemic and the rest in the middle of it?

Yes. We're at midpoint in that projection, which is, I think, a comfortable place to be. If we were midpoint of the projection based on the 2005 Act, we would have been looking at a couple of thousand complaints per annum more than we currently are.

Okay. Thank you for that—

So, I think it's been successful—

Thanks for that clarification, because there are lots of numbers involved there.

Yes.

There we are. Thank you. I'll go over to Mike for some more questions now, please.

You've stated the removal of the statutory bar would further strengthen public confidence in your office and lead to greater access to justice for citizens in Wales. Can you expand on that, and would there not be a danger that people would have the double attempt—they'd go to court and to you?

I'm going to ask Katrin to take that one.

Yes. Thank you. As things stand, last year, about 7 per cent of our cases that we closed we declined to investigate on the basis that the statutory bar was there and a legal remedy was there. I think the difficulty that we have found applying that is that people come to us because they choose to come to us rather than the courts, but, at the moment, the way the legislation is framed says that we have to look at is it reasonable for the person to go to the courts, and only then can the ombudsman exercise discretion to accept the case. And I think citizens really find that quite difficult when we are asking them quite intrusive questions that they think are unnecessary, when they have chosen to come to our office instead of going down the legal route—you know, why are we doing that? Whereas, I think, when the Law Commission looked at this issue a number of years ago, they recommended that, actually, it's better to give the ombudsman wider discretion to accept cases. Obviously, if somebody has already gone down the court route, we would not want to be duplicating that—that wouldn't be in the public interest for us also to be considering the same issues. But I think where we're coming from here, really, is the current position takes away that choice from the individual on where they wish to take their concern. Because not everybody is looking for a remedy that a court can provide; they're often looking for us to—you know, service improvement as a result of our focus.

I wish that was true. From the cases, most of the cases, I come across, most of the people, they have that scattergun approach: they complain to us as Members, they complain to the MP, they complain to the local authority or health board, they complain to the ombudsman, and they are looking to go to court if they're not happy at the end of all that. How can you ensure that that scattergun—what I call a scattergun—approach isn't actually taken forward, and then they take a legal action following a positive response from you?

People can possibly do that at the moment. Once we consider a case, investigate it, close the case, I guess that's available to people now if they wish to do so, although there are time limits, obviously, that apply for people if they want to go down the legal route. But what I would say is that, when we do assess cases, we look at, actually, what is the outcome the individual wants here, are we best to provide it, and this is where our sort of assessment tests kick in. If somebody is looking for purely compensation, that's not our role—it's not the ombudsman's role to deliver that—and we would definitely say, 'Yes, go down the legal route.' But, as things stand, as I say, it is quite an administrative burden, us asking these questions. I think, from a service user point of view, people come to us, we are the alternative to the courts, free of charge, accessible for everybody, and that's where, I think, we see the barrier here on the legal bar.

If I can move on to school complaints, it's a similar type of thing, really, in that people go through the whole complaints procedure, but you're only able to deal with some, not all of it. But local authorities have a means of dealing with it as well. I think you give the impression that there’s a significant gap. How would you want to see that gap filled?

Thank you. Yes, we see there is a gap. As you say, the ombudsman's role at the moment is very limited on school education matters. We can look at some complaints relating to admission procedures and school exclusion procedures. And also we can look at how a local education authority might have stepped in at the very end of the process. But our role is very limited and in no way would we be looking at interfering in curriculum issues, school processes. But the fact is that, in every other area of devolved public services in Wales, there is that independent complaints handling body that people can go to when they reach the end of that complaints process. And as things stand, schools don't fall wholly within our jurisdiction in that sense. So, that availability and access to justice for people across the public service isn't there. And that's where our position differs from the position in Northern Ireland and Scotland, for example, where schools complaints do fall within their remit.

You can't deal with universities either, can you? 

No, we can't, but we do recognise that there is that avenue open for further and higher education because the Office of the Independent Adjudicator is the designated independent complaints handling body for higher and further education in England and Wales.

You estimated that about 10 per cent of complaints would be made orally. Up until now, that percentage has not been reached. Why do you think that is?

I’ll come back on oral complaints. As I said, we've taken about 700 oral complaints since we had the new legislation, and that is below what was projected in the RIA. We recognise that. I have to go back to the first couple of years' disruption because of the pandemic. Our complaints fell away during the pandemic in any respect because of what was happening. And I think, also, we had a bit of a delay while we moved to home working and put technology in place to enable our staff to deal with complaints from home. That's all in place now.

Since the close of the pandemic, we have seen that number increasing, in terms of oral complaints. It is demand driven. Obviously, we're not just taking oral complaints to boost the numbers. We haven’t set targets for it. It's really led by the complainant and the nature of their complaint as to whether we take an oral complaint. We try to use that route only when it's appropriate, because it does take up a lot of staff time. It means about 30 to 45 minutes for a member of staff to do an oral complaint. So, it's absolutely right that we offer it, but we only need to use it when it’s really needed.

We know the numbers are below where it was projected, but they are increasing. I think one of the things that we're particularly pleased about is, again, when we've gone back and done our research, 76 per cent of respondents told us they are aware that they can do oral complaints, so it's not that it's known about, and our staff do actively promote it on the front line because it's embedded in our front-line service. So we will continue to promote it and continue to use it where it's appropriate. But we've never set targets for it, and we will use it where it's right to use it.

You said that in the consultation you asked whether or not people were aware that they could do oral complaints. As part of that consultation, who were you asking? Who was involved in that? Were they people who—? Is it the general public?

Yes, it is a national survey.

A national survey. Right, okay. So, is there an element that the promotional work that you do around your services and getting out there into communities that may be less likely to complain—? Is there more work that needs to be done in that sense, for people to be aware of it? I'm just trying to gauge how it's not getting to where you thought it was going to be. What's going to bridge the gap, if you like?

We do find that, if you look at the people who use the oral complaints service, they do tend to be those that have got health issues, or who are disabled. So, it does tend to be that sector of the community who are more likely to use it. But I think you’re right in terms of our work that we’ve done—our outreach work—and targeting sectors of the community where we particularly want to hear from them, and perhaps don’t hear from them often enough. 

We always talk about oral complaints. Oral complaints are now built into everything we do. The guidance is on our website. When people come on to the website and ask the question, ’How can I make a complaint?’, it’s there as an option. So, we’re very open about it, and, I think, with particular groups in the community, it becomes all the more important, and it’s part of our outreach work to talk about that as well.

Certainly, the advice and advocacy bodies we work with—organisations like Llais—are very aware that we do oral complaints, and if they are referring people on, or bringing people to us, which they often do, as advocates, then they’re very aware that that exists, to remove that barrier for complainants.

I’m very keen on oral complaints; I think an awful lot of people don’t like filling in forms. They don’t have the enthusiasm for filling in forms that people in this room do, for example. And there’s a tendency for, ‘Oh, is it worth bothering?’ And they also tend to make mistakes filling in forms. So, I’m a great fan of oral complaints.

Are you expecting oral complaints to increase? Because it does open it up to lots of people, especially those with poorer English, for example, and not just people who were born abroad, or brought up in households who don’t speak English or Welsh, but people who’s educational attainment is very low.

Yes, absolutely. As you know, one of our target groups in terms of communities we’re trying to reach are those from ethnic minorities or whose nationality is not UK. Again, there's some interesting stuff that we’ve gleaned, and we put in our consultation response, which shows how that service has been used in exactly that way by someone who couldn’t communicate to us in English. An interpreter was used in that, and modern technology allows you to have those three-way conversations. So, that’s a very good example of how it can be used effectively, and we do use it, yes.

So, in answer to your question, we very much want oral complaints to increase, because it’s an important part of our accessibility work, and we really want to be able to reach those people in our communities that would struggle the most, as you say, to fill in a form or do something online.

Okay, thank you. 

Diolch. Sam. 

Thanks, Chair. On the point around oral complaints, I guess the key to that is keeping the options open for people, isn’t it? There’s a lot of evidence that the younger generation, the millennials and Gen Z, are petrified of picking a phone up, and they’d much prefer to—. So, it’s kind of swung one way to the other. So, I guess it’s just the trick of having options open, channels open, for people to access those services as best as possible, isn’t it?

I just want to touch on the wider investigations that you mentioned in the opening, in particular the own-initiative investigations. What struck me from the evidence you provided is the length of time that they take. Your most recent own-initiative investigation, in relation to unpaid carers, you kicked it off with a consultation in January 2023, if I recollect correctly, and in October 2024 the report was produced. The report prior to that was the homelessness one, which, understandably, got paused during the pandemic. But in your evidence, you said, and I quote, that you

'believe that the current consultation process that we have to complete to launch a wider own initiative investigation is too long and cumbersome.'

I think some of the feedback from local authorities was that the experience was tricky and time consuming. So, perhaps you could just speak to that issue first of all, and perhaps we can get some more questions off the back of that. Is that okay?

Yes, thanks for that. I recognise that that second wider own-initiative took too long, frankly. I did say at the outset that we’re still learning about how to use these powers, and, certainly, I learnt a lot through that process; it was my first own-initiative. We’ve identified through a learning process on that how we can make those sort of investigations more tight and efficient in the future. So, we recognise there are things that we can do internally as well.

The point about the consultation is that, at the moment, in the legislation, if you like, we’ve got a two-stage consultation process we have to go through. The first is a very wide public call for evidence, if you like, type of consultation, and then we use that data and our evidence from the office to focus in on exactly what it is we want to investigate and the bodies that we want to involve in that, and then we have to send a proposal to them and do a second-phase consultation.

I think we feel that that second-phase consultation is really important, obviously, if you're going to be investigating a public body. But that first phase, that wider phase, I think we're questioning the necessity for that. It does add time to the whole process. As you'll see from our evidence, my colleague in Northern Ireland who also has this power doesn't have to do that first-phase consultation. They've got a bit of a slicker process in place. I know you'll be speaking to Margaret Kelly as part of your evidence, so hopefully that might be part of the conversation. So that's where we think we could help on the front end of the process.

I think in terms of the way that we need to improve the efficiency of how we do it, it's probably around—. We've done two quite big investigations and I think we can perhaps—. We've already been talking about how we could focus that down, so the terms reference and the focus of it being tighter with a shorter consultation process would allow us to do more of them but in a more focused way. I don't think that reduces the impact of them. I think you could still have impact if you're focusing down on very specific issues for specific communities in Wales, which we could do with that.

So I recognise that we've got more work to do there and, as I said, we have learned a lot, I've learned a lot, and I think, with the next one, we’ll take a very different approach to try and make better use of that power. Does that cover your question?

Yes, that's a useful start, and I absolutely recognise that, with those two investigations done so far, there were large groups of people and quite complicated and varied issues that you were having to look into. So, I absolutely acknowledge that. I think in the original RIA there was an expectation that there would be, perhaps, one or two of these a year rather than two across a five-year period. Is that purely down to the—? I'm trying to understand whether it's more of a resource issue or more just about this being a pretty cumbersome process that is preventing you from, perhaps, hitting the levels that were initially expected.

I think it's a bit of both, to be honest. It is the points I've made about the process. When I came into post, the position of investigating officer for our OI work was vacant, so we had to fill that post. So there was a bit of a delay there as well. I think we need to get better continuity in terms of the resource we have internally to deliver on this and, as I said, think more about how we focus the resource and what we investigate, because as you said, they were two very big investigations and I think I'd like to certainly be doing at least one a year but reducing it down so it's more focused, and that would make it more manageable. So I think it's a bit of both. It's about how we've been doing it, but I think that some adjustments around the process would help us as well.

I was reading your evidence, and on page 20 of your own evidence, it says that stakeholders

'sometimes found the experience difficult, time consuming and, occasionally, overly critical due to the use of strong terminology like "maladministration".'

And you go on to acknowledge that, but also to explain that there are reasons why those words sometimes have to be used. Is there anything further you think could be improved to make that less of a confrontational experience for stakeholders and more of a 'working with' experience for those stakeholders, do you think?

That's a really good question, because I think that's one of the things we've been talking about. It did feel confrontational to me, the one that I did. We try and work in a very consensual way as an ombudsman. That might sound like an odd thing to say, because ultimately we will produce a judgment on public services, but we try and do that by working with public bodies, and I think most of the time we're very successful at doing that.

I think it's proved trickier around the OI work. It's new, so public bodies are more challenging as to, 'Well, why are you doing it? Why are you looking at us?' I think we've got feedback that the public bodies understand the power and benefit of it, our opportunity to look at areas that other regulators and inspectors can't look at, but no-one really wants to be the subject of an OI themselves. So it has felt a bit confrontational and I have been giving thought to how we make it less so. I think there are a few things. One is the terms of reference. One is the engagement, and how we do that at the outset, and being very clear about why we're doing it, and getting people on board earlier on with the benefits of it.

I think perhaps we've talked previously, in previous committees, about our use of data. We've got a new data lead officer on board now and we're trying to get better at using our data. It's up to us to evidence this. Why are we doing this? We'll do it because there's good evidence and data for doing it, not just because it's a whim.

So, there's a lot of work to be done there in terms of how we put our case together and engage early on. I do want it to be less confrontational.

Do you think it would feel less confrontational if there was parity when the recommendations are made? Because there are issues at the moment when those councils, for example, involved in an investigation have—I can’t remember the terminology, sorry, but it's mandatory that they have to react to whatever it is you put forward, versus for other local authorities, it's just something that’s noted. Do you think that creates perhaps a tension that is unnecessary? Whereas if there was a parity of outcome, everyone's in the same boat. Is that something that is worth thinking about?

Yes, I think that's a fair comment, because I think we had that feedback, didn't we, off the last—? It was, 'Why are you telling us we've got to do it, but you're not telling—?'

Yes, when they might be doing something worse.

The others, yes. And actually, if it's good practice, everyone should be doing it. So, I think that's very true. We tried in the report to pick out the good practice that we found, to make it a balanced report, and at the end of it we did have some good conversations, where we said, ‘Yes, okay, we recognise some of these areas are things that we can improve and we will put them in place.’ So, we got there in the end, but we had to spend a lot of time, and that's back to the extended period of time it took. We seem to have to spend a lot of time in those discussions, and if we can make it a stronger collaborative and get that buy-in at the outset, then perhaps we can get through it a bit quicker. 

And then you did a piece of research with third sector organisations, and there are five recommendations backed up by the research. Could you talk perhaps about how you're going to address the recommendations and the outcomes there might be on the back of those?

Yes, I think that that piece of work has been incredibly helpful. I’ll just remind myself of the recommendations here. It's an incredibly helpful piece of work because it has been independent. It's the first time we've gone back to that sector and said, ‘How do you think we're using these powers? How do you think we could do more?’ I think, and it goes back to your previous question, we need to be stronger at engaging with the third sector upstream. As I said, we're trying to put together a programme of things that we're going to be looking at, using this power over the next few years. 'What does that look like to you? Does that feel right in terms of the issues you're seeing?' I think there's an obvious thing there, particularly around linking in with the sector, that hopefully this report will now give us a way of getting into that.

I welcome all of those recommendations and the intention is to meet with Ruth now, following this evidence session, and to seek her advice on how we progress them in the best way, really, and make the right contacts into the right bodies to try and make sure that the third sector feel more involved in how we use this power in the future. We still have to bring our evidence and data to support the case for making these investigations, but their knowledge of different sectors and what's happening out there would be very valuable, I think.

Okay, fine. And then, finally from me, Chair, just on this general theme, the other group you explained earlier was the extended investigations, which are related to the own-initiative investigations. I wonder if you could just briefly explain what you've learnt from these, and how you have applied this to extend complaints in which there was reasonable suspicion of maladministration. Is there anything further that you think should be given to you to improve the process or just your ability to extend the investigations where it's appropriate?

I think it's interesting: this part of the OI power is far more flexible. It's less onerous in terms of, if you like, what I have to do in order to extend an investigation. I've got delegated authority to look at the case and, based on the evidence, extend the investigation. I don't have to do any more than that, so in that way it's very flexible, and we can move, and we do move, very quickly. I don't think there's anything on process particularly that we would look at in terms of the extended OI. I think it's been a really powerful tool to have, because we've used it, as we said, 10 times. We've got three investigations still under way, yet to close. But again, in the consultation, a couple of case studies there of issues that have gone to public interest reports, so that means we've found some really serious systemic issues of maladministration—within the health service, both of those were—and we wouldn't have found those. So, one I did, and one was done by my predecessor. We simply wouldn't have gone there or been able to go there without those extended powers.

'To go there', as you say, are the thresholds still appropriate, do you think? They're not too easy or too hard to enable you to go to those places?

I don't think so.

No, I think they are appropriate. If, when we're currently investigating something, we have a reasonable suspicion that there is wider systemic maladministration, either in that body or a different body, then Michelle's and the ombudsman's power allows us to go there very quickly and slickly, really. So, I think it's very effective as well.

Sorry, Chair; I did say one more, I do apologise. And then off the back of that as well, in terms of your internal processes, I guess you have individuals who have pieces of casework. In terms of communication across your teams, to identify those themes, are those in the best place they could be at the moment, or is there more work you think could happen to ensure that people are communicating across your teams to identify any themes that may occur?

We have internal guidance for staff. That decision to extend the own-initiative under an own-initiative power hasn't been delegated, so the decision rests with Michelle, but through our casework processes, we have good discussions and knowledge across our investigation team, I think. We are constantly reminding staff of the power since the introduction of it, but also we were very mindful when the power kicked in. We recognise it's a strong power; we didn't want to overuse it either, and we want to use it in a proportionate and effective way. So, we have got internal guidance that sets that bar and the criteria, but very much we'll discuss it internally, and our investigation teams are quite small, really, so we can spread that knowledge well, I think.

Thank you, Chair.

Thank you. I've got a few more questions, but we might not get to them all, so we might have to write to you with some of those. But I'd like to just look at how the Act compares to best practice, if I may. So, do you feel that the changes implemented through the 2019 Act reflect best practice, and if so, do you think, six years on, that that is still the case?

I would say this, but it's legislation that Wales and the Senedd can be proud of. It is modern legislation for an ombudsman within the UK, and I've read the consultation responses you've received from some of my colleagues in the UK, and particularly if you look to England, the legislation they're operating there on this is very dated, and they would very much like the powers that we have in Wales. So, I think at the time that you introduced it, it was best practice, and I still think it is. And you will reach your own conclusions, I know, from your work. We've set out again in our consultation how it compares with other ombudsmen in the UK. We've highlighted just one or two areas where we think it could be improved, based on their experience, but I still think it is best practice.

So, I suppose, your colleagues in the UK are looking over in envy. Where are you looking in envy? Are there any international areas where you think, 'Actually, that would really improve things'?

I think we've highlighted the school complaint issue, because that seems to us to be a gap in people's access to justice, and we've highlighted that that power does sit with colleagues, my colleagues in Scotland and Northern Ireland, but I think other than that, it's still very good legislation.

Okay. Thank you.

Yes, and I think the tools across the legislation give us a really varied set of tools to draw on, really, so, yes, very good.

Thank you for that. You mentioned it earlier—and I know it was something that Mike was asking about as well—about private healthcare, and you haven't used that power as no complaints have reached that threshold in the time since the Act was introduced. How many cases have you actually assessed with regard to private medical treatment? Can you summarise any key reasons why they haven't reached the limits, and then—? Actually, do you want to follow on from that, Mike?

What we were talking about with your predecessor, and he gave an example of one case in Llanelli, which was that somebody went to hospital down in Llanelli, then they went into the private sector, then they came back into healthcare, actually in Morriston. So, there were two public sector bodies and one private sector body, and he had to cut his investigation after the first bit, and start it after the second bit, so he could only investigate the two parts. So, his view was that he needed to follow it all the way through, because all that happens is that there's something in the middle that I'm sure both the other organisations would blame.

Yes. Do you want to—

Yes, and I remember the case that we brought, obviously, at the time. It was very impactful, because it did inhibit our ability to look at that. I think it's important to just look back at the way the legislation was framed. Clearly, our role is to look at public services, and the way the provision is framed means we can only look at that private element of healthcare if we can only completely and effectively investigate the NHS care by also looking at that private element. So, we think it's really important, and firmly believe that the power should remain in place.

We have recorded eight cases relating to private healthcare providers. Two were closed at the inquiry stage of our process, and with the other six that we assessed and decided we couldn't take further, one we decided to agree a settlement for the private provider to respond to the claimant; in another case, we didn't feel that the private care was sufficiently linked to the NHS care, so that condition in the legislation—

So, it didn't meet that threshold.

Yes. It wouldn't have allowed us to look at it. Likewise, a couple of cases fell because the person who brought the complaint to us—. We need authorisation from the patient, from the person who's affected, and we didn't get that. Also, another was withdrawn, and also there were some cross-border issues, where the private element of the healthcare was delivered in England as opposed to Wales, so we didn't feel we could take that forward either, because of our remit under the legislation. But, as Michelle said earlier, we do think it futureproofs us when there are more people crossing between NHS care and private care, and then perhaps going back. So, it means that if we did have another case like the Llanelli case in the future, we would be able to go there.

But if that Llanelli case was going to Bristol for the private healthcare, then it would fall apart at that point as well, because you don't have jurisdiction to follow it everywhere, it's just—

No, and that's where I think the private healthcare power differs. When the NHS commissions care in England, of course we can look at it, because we follow the money there, and we can look at the care that the Welsh NHS has paid for and delivered through that contracting arrangement. That's different in a private element when the citizen is purchasing that. So, yes, that falls outside—

So, it just shows some of the discrepancy there. Okay, thank you for that clarification.

Finally from me, and we will have a couple of others that we will write to you about, if that's okay—we've got a little bit of time, I think, to be able to do that, so that's fine. You commissioned the research, and we've got it in your report and your consultation response. There are some bits in there that need improvement. There are good things in there, but there's also, 'Where can we do better?' What are the main points that you've taken from that consultation, as in thinking, 'Oh, actually, that's something that we either hadn't thought about before, or thought about in that way before'? And what are you putting into place now to address some of those things, rather than waiting for us to report, or the end of this? So, obviously, it's a learning experience as well, so what's it taught you, I suppose?

I think the areas that cause me to pause most and consider around our wider OI work, as we've already discussed. I think the feedback through Ruth Marks's work is really helpful for us. And my reflection is that, yes, probably we haven't done enough; I haven't done enough as ombudsman to engage with the third sector in the way that she is suggesting, and there's obviously great opportunity there. And I recognise now that we could be missing opportunities by not having those conversations. So, I think that area and her recommendations for me, we will get on and do those; I am definitely, as you say, not waiting for the outcome of this committee's work.

And I think the other thing, then, is on the other feedback we've had on the wider OI stuff, particularly from public bodies, and just thinking about how we use that power, going forward. We've learnt a lot, we've had feedback that we need to take on board as well. So, I think, for me, most of the reflection has been around that area of work. I think we get excellent—. We haven't had a chance to talk about the CSA today—sorry, the Complaints Standards Authority work. We get good feedback and good engagement from public bodies on that, and I think that's work that we need to continue to do. I think we will probably have to look at our approach in the future as we get into sectors like GPs, dental practices, town and community councils. Just because of the pure numbers of bodies out there, we will have to do our implementation differently. Still a lot of work to be done there, but there are benefits—we've seen the benefits coming through. And we do have good, strong, collaborative work with public bodies there, because everyone has to deal with complaints. And so, working all together, we can improve that and we're showing how those improvements are made. And I think, on oral complaints there, the issue is not that it's not happening—it is, and I think it's well embedded in how we deliver our service now—but it's just continually having those conversations and promoting it with particular sectors in the community, as you say, Chair, to make sure that everyone who wants to use it can. So, for me, wider own-initiative probably is the area I need to focus on with a bit more vigour, going forward.

Have you had discussions with the auditor general, because we're all aware now of Ammanford community council and the auditor general's very scathing report on that organisation? Have you had discussions with the auditor general? Most community councils are well run, well appreciated in their community, and do a very good job. So, this is not an anti-community council thing, but there are some that are an opportunity for public argument between neighbours. And we saw the classic one in England, but Wales is not excluded from that. I've gone off the topic a bit, but have you discussed—? If you're going to go into community councils, have you started talking to the auditor general about the complaints he gets, many of which would be for you?

Yes, we do. We talk back and forth, Adrian and I, obviously, about common areas of all of our work and, on things like the wider OI, we talk to other public bodies before we launch investigations because we don't want to duplicate and step on stuff that they might already be doing. So, absolutely, we do talk about town and community councils, partially from a—. You know, if we're dealing with a tricky code of conduct issue, we will check in with Adrian about whether that's falling through into governance issues, and quite often it is. You know, quite often there are issues on both sides. So, yes, and we'll continue to do that—yes, good lines of communication.

Great. Well, thank you very much. As I say, we didn't quite get through all our questions, but we'll write to you with some extra questions. And I think you're back in to see us at the end of this consultation, as well, on this review, so that will be good.

Diolch.