National Assembly for Wales

The papers to note—happy to note the papers?

We note the papers, yes.

Lovely. Great. Diolch yn fawr. 

We'll move now on to our first substantive item of the morning and it's the fourth evidence session of the post-legislative review of the Public Services Ombudsman (Wales) Act 2019. And we have two witnesses with us online, and I'm glad to welcome you here. 

Before we start, could you introduce yourselves for the record? If I start with—. Naomi, you're in front of me, on my screen, anyway, so, let's start with Naomi.

Thank you. My name is Naomi Creutzfeldt. I'm a professor of law and society at the University of Kent.

Fantastic. And over to Chris.

Thank you, Chair. Good morning. My name is Chris Gill and I'm a professor of socio-legal studies at the University of Glasgow.

Thank you very much, professors, for joining us this morning and for your written evidence as well—really appreciate you engaging with this post-legislative review. 

I'd like to start by exploring the evidence base that the 2019 Act has and whether or not it has delivered against the policy intent, and then the impact of taking oral complaints as well. So, how successful has the 2019 Act been in modernising the role of the PSOW and to what extent does it reflect good practice in the UK and internationally? It's up to either of you who wants to go first. 

Naomi, do you want to go first?

There we are, Naomi, lovely, fantastic, go for it.

Over to Chris; I wanted to give Chris the first—[Laughter.]

Okay. Oh, well. [Laughter.]

Yes, okay, that's fine. Happy to do that.

Thank you. 

Well, thanks, Naomi, I'll kick off then. So, I think, broadly speaking, my overall answer to this question is that it has been successful. I think that it is a good piece of modernising ombudsman legislation. I think that the provisions that have been built into the Act in relation to own-initiative investigation powers and Complaint Standards Authority powers are hugely welcome.

I think that, if it was looked at within the context of the UK, you would have ombudsman officers in England, but also now in Scotland, I think, looking at the powers of the PSOW with some jealousy, really, because I think these are the types of provisions that most ombudsmen would think are required in order to be able to do their work effectively. So, some of these powers are available in other jurisdictions within the UK, but not all of them. So, I think that the Welsh legislation is now really at the forefront of the domestic ombudsman legislation.

And if we look at this beyond these shores, then I think, internationally, the Act also represents many elements of good practice, particularly in relation to extending the ombudsman's powers to have this ability to investigate at own initiative, which I think is really important for reasons that we may go into later.

So, I think, broadly speaking, it's a very positive story. I think the Act has developed the office in very important ways. There are still, I think, some areas where things could be perhaps further refined and explored a bit further. But I think, overall, it's definitely a good-news story and one that shows, yes, good modernisation and that stands up very well in terms of international practice.

And, Naomi, anything further to add, or your reflections initially? They'll sort out your microphone for you. There you are, that's it. Fine.

Great, thank you. So, I agree with what my colleague has said. Maybe just to add—. So, I also think they're great improvements and, with everything that you introduce, there's a balance of people taking it up, people being aware of it. So, some of the things that might not have gained traction—. Chris mentioned the own-initiative powers, so, if I read the documentation correctly, there haven't been that many actually completed. So, there needs to be—. Although, an ombudsman has the power, you then also need to have the substance and the events to be able to take action upon, and equally with the oral complaints—I think this was also part of the question—it's very important to remain having oral complaints, so inviting—. Because written complaints can sometimes provide for a barrier to access the ombudsman, so I think it's a really good idea to also include oral complaints. There can be a discrepancy, possibly, in how fast these are processed, compared to other types of receiving complaints, but I think it's definitely really important to have those included. I agree with what Chris said about the own-initiative powers, that most ombudsmen really want them, so that's very good.

There was also—. I'm just looking at part of my submission, what I wanted to add. I possibly think it would be good for the ombudsman to report back how it actually went for them in relation for the take-up, and then how they felt that the own-initiative powers were working, and that continuity needs to be monitored.

Okay, thank you very much. In your review, obviously, you're looking at it from outside, rather than being involved in the everyday processes and everyday use of the Act. Have you spotted any issues or any enhancements that came through in 2019 that haven't been well-used, or things that you might have expected to see used more? You've mentioned own-initiative, but is there anything else there that you think, 'Ooh, I wonder why that hadn't happened', and whether or not you had any ideas as to why that hadn't happened? Chris, do you want to take that?

Yes, I'll go first, yes. So, I think I would agree with Naomi's point about the volume of own-initiative investigations that have been conducted so far. It's kind of a difficult question, I suppose, because the Act was passed in 2019 and then COVID hit not too long after that. So, I suppose there's a question around the responsible use of these powers and ensuring that they're not being overused at a time perhaps when public services are under pressure and so on. So, I can perhaps see in that context why we haven't had more own-initiative investigations.

There's also that really difficult balance, I think, for the ombudsman in terms of using these proactive powers, which are really, really important to use, but at the same time keeping an eye on and maintaining the efficiency of the reactive service and actually being able to respond to the complaints coming through the door. And arguably, there have been some issues there, I think, with the ombudsman's performance; I think currently it's a 64-week timescale for completion of an investigation. There's still some work, which I think is very positive, to reduce the number of aged cases, which I think are cases over 12 months, but that's a fairly significant kind of timescale. So, I suppose there's balancing the proactive work with the more reactive work and thinking about it in that context.

If we compare it to Northern Ireland, they've had the powers now since 2016 to initiate own-initiative investigations, and I think they probably have used them on more occasions, but I don't think it's necessarily hugely out of keeping. And of course, you've got all of the different contextual factors in terms of funding and public sector structures and delivery and stuff. So, yes, I think, potentially, that power could have been used more, but I think probably there needs to be some understanding as well of the context in the last five or six years.

In relation to the Complaints Standards Authority, I think it looks like those powers have been used effectively, so it looks like, now, most public services in Wales are covered by the complaints standards, but there does appear to be some way to go on that, and I think I might have expected some of that work to be a little bit closer to completion, or to have a little bit more clarity over when the vision to have the one complaints process or one complaints system across Wales, when that would actually be fully implemented, and I don't think that's 100 per cent clear just now, so I think a little bit more clarity on that would be helpful. I think there's definitely more work to be done in relation to how we can make use of complaints data and performance around complaint handling across the Welsh public services.

I think, Mike, you've got some questions that you wanted to ask on own-initiative powers. Do you want to just follow up with Chris on those questions now?

Yes, certainly. Thank you. I was involved when we passed this legislation, and what I thought happened, and what you're telling me happened, are not necessarily the same things. You note a limitation of the 2019 Act,

'which restricts the ombudsman's own initiative power to use where there is a "reasonable suspicion" of "systemic maladministration"'.

I didn't realise we'd done that. I think the intention was to give the public services ombudsman, under own-initiative powers, actually own-initiative powers to investigate anything they wanted to. Where in the Act does it stop that happening?

So, the legislation specifies, and this I believe is borrowed from the terms of the Public Services Ombudsman Act (Northern Ireland) 2016, the term 'systemic maladministration'. So, the legislation sets out those provisions, and I think, in doing so, is really making a distinction between what a general power of own-initiative would be, which is not subject to any kind of statutory limitations, and one where the ombudsman is limited to only look at this new concept of systemic maladministration.

Now, maladministration itself has never been defined in any ombudsman legislation within the United Kingdom, and the term 'systemic maladministration' similarly is not subject to a clear definition. So, we don't quite know exactly what it means, but presumably it means that it's maladministration that might involve some kind of systemic issue, so beyond just a small group of individuals, beyond perhaps one small area of the public service, and that it involves something much broader.

So, my own view, and I know this was also the view of the International Ombudsman Institute when it was commenting on the provisions of the 2016 Northern Ireland public services ombudsman Act, is that that's potentially unduly restrictive in the sense that anything that interferes with the ombudsman's jurisdiction in this space is perhaps unwelcome, exposes the ombudsman to legislative challenge, but also means that you might have small groups of people who are very, very disadvantaged, who wouldn't otherwise complain but who are subject to egregious examples of very serious maladministration, which may not be systemic in nature, but may nonetheless be the types of things that they would not complain about but that the ombudsman might take it upon himself or herself to inquire into. So, I think there is a distinction between systemic maladministration as it's been legislated for in Northern Ireland and in Wales and this kind of broader notion of maladministration whereby the ombudsman would have a broader remit and wouldn't have that worry of needing to think about, 'Well, actually, what does it mean for maladministration to be systemic?'

When we went through discussing the legislation, one of the items that was brought to us by the previous ombudsman was homeless people. They quite often are treated quite badly, but they also, especially street homeless, are not used to complaining, et cetera. And what the ombudsman said with the legislation we brought forward was it would allow the ombudsman there to investigate where he saw that people who were homeless were not being treated particularly well and the administration was discriminating against them. Are you saying that's not true?

It depends on whether the issue can be characterised as one that is systemic or not. So, I think that's the issue. Obviously, on the homelessness issue, we've now seen a systemic investigation. The first own-initiative investigation was on the topic of homelessness, and I think that's an excellent example of how an issue that affects all homeless people, or many homeless people, or where there are issues across local authorities in Wales in terms of how homelessness is being dealt with, needs to be addressed. That's where the own-initiative power might be used.

But you might have an instance, perhaps, where you have a smaller group of people, even perhaps one individual, who you know has suffered some kind of injustice because maybe there's a media report, maybe a third sector organisation has brought that issue to you, but that you might not be able to investigate that particular case because they won't bring the complaint, and, similarly, there's not necessarily an indication that it’s part of some bigger systemic problem. Now, ombudsmen, internationally, would be able to look at that and would be able to look at single instances, small groups, and that would be a matter at the ombudsman’s discretion to decide, amongst all of its other competing priorities, where it wants to use its resources. And one of the things I mentioned in my evidence is that I’m not sure that this has necessarily caused huge mischief in practice, but, on the other hand, I think it is something for reflection. If you’re thinking about actually what you did pass when you passed the 2019 legislation, I think my view is that you have passed a piece of legislation that is imposing some limitations on what the ombudsman can do, and those limitations are not reflected in all ombudsman legislation internationally, where the general principle is that the ombudsman should have as much discretion as possible.

Well, that was the intention when we spent many hours in this room investigating it and producing the Act. So, something’s gone wrong between what we wanted and what happened, if what you’ve said is correct.

Another question for you is, if there was evidence of maladministration, the Public Services Ombudsman for Wales is not able to make recommendations to other public services in the same sector, but may invite other relevant bodies to make similar improvements. How does this impact the effect of the public services ombudsman’s own-initiative powers? And, perhaps more importantly, the big power of the ombudsman is not being able to tell organisations, but is writing a report in the public domain, so they might not be able to say that X organisation hasn’t done a good job, or has let this person down badly and write to them and tell them that, but when they put it out in their report, it has exactly the same effect.

I'm not sure I fully understood the question. So, it’s a question about whether the recommendations of the ombudsman are effective, is it?

Yes. They’re not able to make recommendations to other public services. And the point I was trying to make is that even if they can’t make recommendations to other public services, the real power is in their report, not in the recommendations. Do you agree?

Yes, I think I would agree with that. Whether something is a formal recommendation or whether something is an implicit criticism that comes out of the report being aired publicly, I think the effect can be very, very similar. So, I wouldn’t necessarily worry too much about whether you have the ability to make formal recommendations in particular contexts. In that sense, the ombudsman’s work is inherently advisory and, as you’ve just suggested, is inherently about raising issues and opening them up for discussion rather than in any way seeking to enforce that. So, it’s certainly not something that I would’ve come across as an issue. I don’t know if Naomi has a different view.

Thank you. I’ll just comment on that one. I think both are really important, both the reports and the recommendations. And then I think it’s a matter of who is exposed to the reports and who reads them. It’s definitely the power of the ombudsman to have that public voice and—I don’t want to necessarily say ‘name and shame’—to engage with the organisation in its jurisdiction. As we know from other areas and other ombuds, usually they have quite a good working relationship with the organisations that they’re responsible for, so there’s usually quite good communication that, even within the recommendations and the reports about the organisations, will then be taken up. And we know that the ombudsman can’t enforce and check up if they’ve actually done it, but by the fact of them being the public sector ombudsman and issuing the public-facing reports and recommendations, I think both are very valid and both have those powers.

May I make a comment on the discussion we had before? So, when you asked originally if there was anything that we felt should have been done more or what didn't happen—and, again, I'm commenting as an academic from the outside—I just came back from an international conference where I presented on a panel about ombudsmen and one of the presenters was talking about the Venice principles, which those of us who work with, about and on ombudsmen know were very big. In 2019, the Council of Europe issued the Venice principles and part of that was to state that own-initiative powers are very important to have for ombuds. So, that in itself reinforces what Chris mentioned earlier, that other ombuds look at and, possibly, are quite jealous of the Welsh ombudsman having the own-initiative powers. So, I'm wondering if more could be done—. Sorry, the thing coming out of that conference session was that those in the know—the ombudsmen and academics—know what a big deal and a big step these Venice principles were, and that the Welsh ombudsman, for example, has implemented parts of them. But, no-one else really knows. So, I wonder if there's some work that could be done to make the public a bit more aware of it and how very much up-to-date and modernised and improved the Welsh ombudsman is through having done this. I wonder if there's some way of public outreach or some media work that could be done to actually boost the public's knowledge of the powers that the ombudsman has and how they've been used—something around that.

I think that—through you, Chair—that is something that we could talk to the ombudsman about the next time the ombudsman comes in to talk to us.

I talk to a lot of people who want to go to the ombudsman. Everybody who feels badly treated by any organisation they're dealing with see the ombudsman as the person to go to. So, I think what the ombudsman can do is very well known out there. People have unrealistic expectations of what the ombudsman can do. 'I didn't like that planning application. Can the ombudsman go and get it turned down?' I've actually had that said to me, and I'm sure other people have as well. So, there are advantages in saying what the ombudsman can do. There are also advantages in saying what the ombudsman can't do. I think people do have a belief that the ombudsman is really like an autocratic judge who can make decisions, and whatever they say goes.

I waffled on a bit there, but what I was going to ask is, as you're saying we're getting closer in line with international best practice, what other areas of international best practice—and you might want to write to us and tell us—do you think we ought to be doing as a matter of priority and in priority order?

I'm happy to respond to that initially, Naomi, if that's okay. I think, for all ombudsmen, not just within these shores but beyond, the biggest challenge is one around access to justice and being accessible to all people that might potentially want to use them. I think that there's still a kind of perception, which I think is to some extent still justified, that the ombudsman is a sort of middle-class remedy for middle-class people to some extent, and that it doesn't quite have that broad reach to all different types of demographic groups that it perhaps should have. I think there has historically, perhaps, been a bit of complacency on the part of ombudsmen in terms of actually pushing out and making sure that the ombudsman isn't just about providing an alternative type of remedy for people who are already very well resourced, but actually is something that genuinely enhances access to justice and brings justice closer to people.

So, I think that work around outreach and reaching a much broader demographic group of people is really, really important. I think ombudsmen traditionally, not just here but elsewhere, have been worried about doing that in terms of, perhaps, over-promoting their service. You just mentioned the issue around managing expectations. If you go out and advertise that your services are there, perhaps you then become overwhelmed with complaints, some of which you might not be able to deal with, some of which might have completely unrealistic expectations. So, it's a very difficult balancing act for ombudsmen to achieve this aim of promoting their service and ensuring they reach marginalised groups, at the same time as working within their very limited resources. Often, those resources are very limited.

But, for me, the access to justice challenge is a major area in which I think ombudsmen should develop. There are examples internationally of ombudsmen doing this really well. The International Ombudsman Institute has just published a best-practice paper on outreach, which was led by the Dutch ombudsman, who is seen as a leader in this area. I think that shows a number of different approaches, some of which are already used in Wales and other jurisdictions within the UK. But, for me, it's just about a step change of seeing this as an institution that is largely reactive and largely serving a quite narrow segment towards really thinking about, 'Okay, if this was about access to justice for all, if this was about really making sure that this is an institution that reaches people who are most in need of redress, then perhaps you would have slightly different institutions.' They would act in a way and, I suppose, have a culture and have an approach to the problem that would be slightly different. So, for me, that would be the main issue.

We thought we'd brought it in, allowing oral—

May I also respond?

Can I just finish this, Chair, and you might want to respond to that as well? We thought we'd brought it in—that allowing oral complaints to come in would expand the number of people who were going to take part in it.

Naomi, did you want to—? Yes.

So, on that point, I want to tie that in to what I would want to comment on. I think this goes back to the point that, although you said everyone in Wales knows about the ombudsman, I'm not sure if people would then even approach them. I think there's a different thing about knowing the ombudsman exists and what it is actually they can help me with. So, what I think could be of benefit—and that's, in a way, bringing together what Chris has just said under the umbrella of managing expectations—is if the ombudsman could showcase an example, let's call it an outreach, or something similar, Chris, like you did with the Northern Irish ombudsman. To have one area—if it's homelessness, if it's immigration, if it's something that's quite local that a lot of people can relate to—that would be showcased in a special report, that there would maybe be a session where people could come and drop in and get more information, and this goes back to the managing expectations of which kind of cases the ombudsman can help with and what they can't help with, I think there would be more visibility and strength in knowing about the ombudsman, or going into schools and exploring through examples of what the ombudsman can and cannot do, to just raise this awareness and have this public education of rights, which goes back to what Chris said about access to justice.

We have a lot of discussions about how people can know better about where to go to seek help, advice and justice, and if people were to include that into a school curriculum, or have some outreach that is memorable, in town halls or somewhere related to maybe even an own-initiative report that had just been done, or something that could bring the country together, as it were, or the nation together, to understand better what ombudsmen are. I think that's where we have all these examples of the Dutch ombudsman, or some human rights ombudsman, who do really amazing work and are really well known, but I think it's because of certain cases that people remember—certain areas that people remember—have been dealt with by the ombudsman, so that will then gain traction. So, for me, that would be something that the Welsh ombudsman could do: combine everything we've basically discussed to have outreach, more visibility, focus an own-investigation on something that's quite particular and people can relate to, accompanying education in schools, or fostering public knowledge about the areas that the ombudsman can address.

Okay. Thank you very much.

I'll bring Sam in now. Diolch, Sam.

Thanks, Chair. Thank you, both, for taking the time to be with us here today. Professor Creutzfeldt, just continuing on the points around the own-initiative investigations, I think you said in your evidence that you recommend the public services ombudsman could be more transparent about how topics or areas have been selected for those own-initiative investigations. I just wonder if you could expand on that a little bit further, and why you think that's the case, and perhaps also what could be done to improve that transparency.

Thank you. I feel the story's slowly coming together—I think this ties in to what I was thinking about. Having the public understand better what the ombudsman is about and why own-initiative investigations are launched, I think if that were accompanied with explaining to the public why, for example, an issue on homelessness needs to be explored, how it affects the country, why it's important, what examples there are of people not being treated fairly—. So, that's what I meant about giving a bit more detail, and examples of the themes and topics and cases of own-initiatives they've chosen, and showing them a digestible version of that, which could maybe even go on the website, something that brings the whole process more to the people, which feeds into the whole discussion that we've been having of those in the know—. I think it's wonderful that the ombudsman has all these powers and can use them, but this is helping to build a bridge to the people to be able to understand better what it is that has been done, and why own-initiative investigations are picked, because I'm sure there are a lot of people who think, ‘Why didn't they look at other issues that are equally pressing?’ So, I think this could be an opportunity to explain why a certain topic has been chosen.

And do you think that's the role of the public services ombudsman, and not the role of elected officials, to do that? 

I think they can do it in collaboration, but I think the message would come across much stronger if there were even a preamble in the report of their own investigation, or if there were something on their website. I think it would just make it more accessible—not to separate the task, but to have it included in the final product.

Yes. Sorry, Chair.

Just on that point, what role, then, I suppose, would media have in that aspect? Is there a lack of interest, I suppose, in the media not picking up these stories, and doing a little bit of that explaining in that more general aspect?

Again, I think it's up to, possibly, the ombudsman and whoever else works in the office to have a digestible press release or an outlet of them sharing that so the media can pick up on it. And suddenly everyone who reads the media in whichever way says, ‘Oh, the ombudsman is looking at that. That's interesting. I didn't think they could do that.’

Yes, that makes sense. Thank you. Thank you, Chair.

And then just moving on slightly, but still sticking with the overall theme around the own-initiative investigations, we've heard evidence so far from the public services ombudsman on the consultation process under the Act, the requirement to generally consult, and that's taking a long time and it's pretty cumbersome. And I think, Professor Gill, you mentioned the number of own-initiatives elsewhere, like in Northern Ireland, being higher than what takes place here, and perhaps some of the explanation for that is the lengthy process. I’m just wondering if you think that's a fair comment and whether it's something we should be considering as a committee in recommendations in that area at all.

If I may go first, I think it is a potential issue. I think you'd want to have some safeguards in the legislation that the ombudsman isn't just going to carry out an own-initiative without appropriate notification of the parties involved and so on, and that there might be some light-touch requirement around consultation. But at the same time, I think anything that imposes a significant limitation on the ability of the ombudsman to respond in a way that's flexible, that's nimble, that's genuinely responsive is potentially going to be problematic. Partly, if it results in delay, it means that already that tends to be an issue with ombudsmen, that by the time they finished an investigation, often the issues have moved on from what they started off being. So, I think that can be a concern. Anything that leads to an undue delay could be seen as problematic.

So, certainly I think the requirements around consultation—you could look at streamlining those. Having looked at just the basic statutory provision, I mean, I'm not entirely clear how onerous the provision itself is, and how much of that comes from the way in which the ombudsman has interpreted the responsibilities that are imposed upon her under the Act. I think that would be interesting to explore a little bit further. Of course, there's a consultation requirement, and consultation has to be carried out appropriately and thoroughly according to public law principles, but by the same token, I'm just wondering whether perhaps some of the over-engineering has come from the process that the ombudsman's office has adopted, rather than necessarily coming from the actual legislative provision itself. 

So, I think, certainly, it would be an area that would be fruitful to explore. It's clearly an area that's causing the ombudsman some problems; they're not happy with that aspect of that legislation. So, I think it would be worth exploring, but it might be worth exploring whether the problem is entirely down to legislation and whether, actually, administratively there could just be a little bit more flexibility employed within the law on what exactly happens in terms of consultation.  

Thank you. And Professor Creutzfeldt, would you agree with those comments generally, or do you have any further comment?

Yes, I agree. 

That's a great response. Thank you very much. [Laughter.] I just want to move on to a slightly different theme now, which is on the complaint standards provisions in the Act and some of their impact. Professor Gill, you stated that data collected on complaints handling has relatively limited value, and is fairly minimal. I'm just wondering what data you think should be collected and published, and what benefits there might be as a result of that.

Thank you for that. I think one of the things is that the data at the moment is focusing mostly on volumes and timeliness, which obviously is important, but it misses out other key things that we might want to know about the operation of complaints procedures. So, for example, what the remedies are, what is actually being delivered for people as a result of all of this work that's happening on complaints. So, are people getting apologies? Are they getting refunds? Are they getting explanations of what's happened? Are they getting a service instituted that they didn't have before? I think really knowing what the outcomes are is really quite important. So, I think that's one area that it would be helpful to know more about.

It would also be helpful to know more about what complainants actually think about the complaints process. So, some kind of satisfaction data being routinely published, or there being a requirement on local authorities to collect—not just local authorities—public bodies to collect and then publish that information in a way that can be compared across the country, I think would be very helpful indeed.

I think there are some limitations. There's the whole thing about what's measured is what matters, and I think there's a strong emphasis in the key performance indicators on timeliness. Potentially, I think that over-prioritises efficiency concerns and the administrative processing of complaints over necessarily quality type-benchmarks. And, of course, that's difficult to do when you're collecting quantitative data—how do you assess quality with quantitative measures? But there could be a little bit more thought going into—. In collecting some of this data, is it perhaps providing some incentives to shut cases down more quickly rather than thinking too much about quality?

A bigger issue—well, another issue I suppose—in relation to the data is the way in which it's being collected. I suspect that particularly around the uphold rates, there isn't a great deal of consistency maybe between public bodies around what they're reporting. I've just had a look at the local authority data and the latest published data, and there are huge variations—from one local authority upholding 90 per cent of the complaints it receives to one upholding 11 per cent. Now, it may just be the nature of the complaints in those local authorities, but that seems rather unlikely to me. It may be to do with complaint handling practice, but it may also be to do with how data is categorised and recorded.

So, I think there are quite a lot of issues still to unpack around data, and I should say here that this isn't just an issue for the Public Services Ombudsman for Wales, it's an issue across the board. Complaint data is very poorly categorised and there's no standardised approach. So, that's something that, actually, other ombudsmen could come together to maybe develop and move things on in terms of the thinking around that.

Thank you, and just to expand to you, Professor Creutzfeldt, you said that the enforcement and monitoring of those model complaints handling procedures should be strengthened. I'm just wondering what changes you'd suggest to enable that, and what difference you think that might make. And then, Professor Gill, you've also described the public services ombudsman's principles, model policy and guidance as clear and helpful, but limited evidence with regard to the impact the changes have made. I'm wondering perhaps, in your response, how this could be addressed.

So, if I may, I just quickly want to add something to what Chris has said about the data, and I agree with what he said. What I found was mostly a practical issue—that the ideal case would be that data will be collected in very similar ways and then shared, even across the nations. But the problem that I think is a reality is that there are just different systems that the ombudsmen have subscribed to to collect the data, and they're quite difficult to change. So, it might be a very practical matter. But what I thought, while measuring the timeliness, could be done on a practical level is just to divide the process up in its steps, and then collect data on how long it took for each bit of the process, to then maybe get a better understanding of which bits maybe take longer than others, and then have, as Chris suggested, a follow-up survey of satisfaction, or that could even help improve the process. So, what I'm suggesting is breaking down big elements of measuring volumes and timeliness to more discrete elements that can be easily measured, and the data can be collected to then both improve the service but also know exactly where there might be some sticking points that then could be addressed.

To answer your questions, I just think that if there was a follow-up that would actually look at what has been done, if the recommendations have been enforced, and some interaction with the bodies that the recommendations were issued for, that would also enhance relationships, and they would see—. We know that ombudsmen don't have teeth to enforce, but we also know from many stories that public bodies have quite good working relationships with ombudsmen and that they will implement their recommendations. So, that was my thinking: having a follow-up that can be in a friendly, collaborative manner, of just checking in after a couple of months—if the recommendations have been implemented, maybe asking for a short report, which would equally be good data to start to collect to see if the recommendations have actually been implemented or not.

Okay, thanks. Professor Gill, the same question to you.

Thanks very much for that question. So, I think there are a few things in terms of the evidence base. So, I think, just now, most academics certainly think that Complaints Standards Authority powers are a good idea, and that you need to have someone that is basically responsible for regulating in some way public service complaint handling procedures. And the ombudsman is the best place for that to happen because the ombudsman is an expert in complaint handling. So, in principle, a very good idea. We know that, basically, in the past, public service complaints procedures were hugely, hugely complicated, involving multiple stages, very confusing for people, lots of inconsistency, and people would get lost in the system and never come out of it. So, there was a real need, I think, for the Complaints Standards Authority, and I think certainly it has been beneficial.

On the other hand, I think there's almost no evidence as to what these powers have given, whether that's in Scotland, whether that's in Wales, whether that's in Northern Ireland. The evidence base is extremely limited for what, in practice, has been really achieved for people as a result of these powers coming in. The Public Services Ombudsman for Wales, in its evidence to the committee, appended some research, which I think was helpful, and it was looking at, largely, chief executives of public bodies in Wales and how they had responded to things. But, obviously, that's a very limited perspective, and it was also a very small sample. So, I don't feel that we have a huge amount of evidence to go on.

I think your question was: what evidence would be useful, or what would we need? There are a couple of things that I think could be done that would be very beneficial. You might, building on what I was talking about earlier, impose a requirement under the model complaints policy for public bodies to collect complaint satisfaction data and publish it. So, at least then we would know what complainants feel the outcomes are in relation to their complaint. That's just one outcome, because their perspective is only one of many that we might want to assess here, but that would be helpful.

The other thing that might be done is looking at national survey work—there has been, I know, in the past. As far as I was able to see from the ombudsman's website, the latest national survey that they refer to was published in 2020. That shows, basically, very low levels of satisfaction with complaint handling across public services in Wales. It would be interesting to see, if a similar survey was repeated now, whether there has been an improvement post the Complaints Standards Authority. I think national survey work could provide a helpful benchmark.

And the other thing—and of course, you would expect me as an academic to be talking about doing further research—is that a proper piece of evaluation research on the Complaints Standards Authority would be very beneficial, where it would be multi stakeholders involved, multiple methods where you'd look at how data is being collected, how this is really being implemented beyond that surface level of people saying, 'Well, yes, we have the model complaints policy', but actually really looking in depth at how it's working in practice. Because my suspicion, and what I've seen—even in areas where Complaints Standards Authority powers have been approached—is that we don't necessarily see that people all of a sudden are saying that complaint handling has improved a lot on the ground for people, people all of a sudden very satisfied with how their complaints are being dealt with. I think that there is a need to explore this further, but of course, all of that requires resource in itself.

That brings us to the end of our session this morning. Thank you so much, both of you. Thanks, Professor Creutzfeldt and Professor Gill. We really appreciate your time this morning and your written evidence, and obviously your interest in this field. There will be a transcript available for you to check for accuracy after this committee meeting. 

We'll now go into a short break while we reset. Diolch yn fawr iawn.

We're back with our next item this morning, which is item 4. This is the fifth evidence session in our post-legislative review of the public services ombudsman Act. We're joined by two witnesses here this morning. I'll ask them to introduce themselves for the record. If we start in the room.

I'm Alun Jones, I'm the chief executive of Healthcare Inspectorate Wales.

Croeso. And online.

Hello, I'm Angela Hughes. I'm the assistant director of patient experience at Cardiff and Vale University Health Board.

Fantastic, thank you very much. 

I'd like to start by exploring whether the implementation of the 2019 Act has delivered against the policy intent and the impact of the 2019 Act on health-related stakeholders. Obviously, you're both here for that reason, so what has been the impact of the 2019 Act on health-related bodies under the PSOW's jurisdiction? Shall we start with you, Alun?

Of course. I think it's quite difficult for HIW, my organisation, to judge that. Perhaps that will come out in other questions. On the work of the ombudsman, we're big fans of the work of the ombudsman, but it complements our work and the overlap is quite small. We have strong relationships with each other when we need to have relationships, but it's not like we're tracking their work and the outcomes of their work at all times. I think having an appreciation of the 2019 Act and the elements of it, the separate components are all positive in my mind. Logically, the things that the Act set out to do are positive, I welcome them and the introduction of them. I think it's quite difficult for me to judge whether they've actually had an impact. I've looked at the ombudsman's evidence and seen, for example, that more individuals are able to open a case or make a complaint with the ombudsman, because they don't have to do that in writing any more. Logically, that sounds good to me, but I've got no other organisation to compare it with.

Maybe if we go to Angela. From a different perspective, then, what are your thoughts?

From my perspective, I would see most of it as being very positive. In terms of the ability to raise oral concerns, there have been several hundred concerns that have been raised across Wales by people using this route, and I think that's absolutely right, it's opened up the ability to go to the ombudsman for more people than it perhaps would have, because of language difficulties, potentially, disability issues and literacy issues that we know can be an issue in some communities and for some people. So, I think that was a really important thing.

The ability to do own-initiative investigations has really had that ability to—. We know there are lots of areas where we don't have concerns raised from, and, actually, that doesn't mean everything's okay and they're happy with everything, it's maybe because the system just isn't accessible enough for them, and it's actually that proactive going to the homeless community, checking about the carers' needs assessments with unpaid carers. They could be groups that perhaps don't use a concerns process and therefore don't end up going to the ombudsman and actually needed to have somebody to be more proactive and go out and explore those issues. So, I think that's been really positive, and there are lots of other positives as well, but I think you might pick those up in further questions, so I don't know if you want me to wait for the further questions.

If you'd just give us a couple of highlights, and then we'll follow up on other questions.

Okay. I would say the model complaints policy and the Complaints Standards Authority. I think that's been really good, the training that’s been provided by the ombudsman’s office, to really look at how people, in an equitable way, across the whole of Wales, actually manage their concerns. And we know we have the regulations, but the training that's provided is very much that person-centred approach. And then, that early resolution, I think it’s really important that actually, we’re trying to manage things with much more early resolution. And that’s reflected in a lot of the things that the ombudsman is trying to do now, as well, I think, with that early resolution and not going into full investigation. Actually, if you can settle it in early resolution—. I think that’s very much complemented by the Complaints Standards Authority training, which is provided free for all organisations and actually has been really well evaluated by my staff, certainly, who have undertaken the training. So, I think that’s been really positive.

Thank you very much. During the legislative process, HIW said that the implementation of the 2019 Act would need to align with other legislative developments in the sector that fall within the PSOW’s remit. Has that happened and what have been your reflections on that?

Going back to the Act in 2019, or just prior to the Act, I think HIW had something of a concern, or perhaps a level of interest, in how the own-initiative work might play out, because HIW undertakes reviews as well. I think if you look at that, you might say, ‘Okay, well, why wouldn’t you ask us to do that?’ or, to be blunt about it, ‘Why wouldn’t we get that money that you’ve got, all those resources you’ve got, to do that?' I wasn’t chief executive at the time, I should add, but I think, on reflection, I would say that I welcome the own-initiative work that the ombudsman has done and how that has played out, because the ombudsman has a wider remit than us. Our remit is within health, and the ombudsman, obviously, has a much wider ability to draw in cross-cutting subject matters.

For the two wider reviews that the ombudsman has done on homelessness and carers' needs assessments, you can see how they are cross-cutting issues that the ombudsman is perhaps uniquely positioned to undertake, and so I really welcome that and I’m pleased with how that’s turned out. I think my only comment around that, really, would be that I'm a fan of national reviews pulling themes and the learning that can come from them, and it would be nice to see them do more, although I appreciate that they are expensive things to deliver in terms of the resources you require to do an in-depth, detailed piece of work. So, I think their work does complement ours and others, and I don't have any specific concerns that their work is aligned.

Sam.

Just to expand that a little bit, could you help me understand how you avoid duplication in that space? Are there conversations that you'd have when you're considering undertaking a piece of work to ensure that the public services ombudsman isn't also considering that same exercise? How does that practically work out? 

It's a two-way thing, really. If HIW, my organisation, was thinking about doing a review—and we do one or two a year—we would engage with other stakeholders, so organisations like Audit Wales, Care Inspectorate Wales, Estyn and so on, and we would seek to understand what their programmes of work are and whether there's any overlap. If there is an overlap, sometimes that can lead to joint work, which is a really nice thing to do.

We recently published a piece of work around support for young people with mental health challenges. We worked with Estyn and CIW and that was perfect, because we could bring in the education, health and care sectors together. With the ombudsman, we would do the same if we were seeking to do something. From their perspective, they've always been very open about the things they're planning to do, so I meet with the ombudsman twice a year, at my level, but we also have other points of contact at a more operational level with the ombudsman.

They've been very open about what they're planning to do. I can recall the ombudsman telling me that she wanted to make sure that we weren't about to do the piece of work that they were thinking of doing. But also to ask us if we have expertise or knowledge or content that we want to feed into that. We might have already done a piece of work, or we might have some data or some insight into a topic that can help them. So, I think it works well.

Is that a benefit of having the consultation on own-initiative powers?

Yes.

Because one of the comments that have been said is that that consultation may be potentially too onerous at times and may slow things down, but then the counter would be that it avoids that duplication in that element.

Yes. I think consultation is important, but my recollection isn't that we have been involved in any formal consultation with the ombudsman, because we have a close relationship. We've had conversations, rather than waiting for them to do something formal, which we input to in that way. I think because of the—. We need to have a strong relationship with them and, because of that, we just talk. So, it's not a problem for us, but I can see why a consultation would be a good idea for others who don't have that, the benefit of being able to pick up the phone because we know each other.

Okay. Angela, and Alun, you've talked about the oral complaints aspect, and maybe more from a health board aspect as well. How has that impacted on the social justice element of what was trying to be achieved by the 2019 Act? Any thoughts about how it's manifested, how it's been used, is it doing what it needs to be doing, and how it could be improved, I suppose? I'll go to Angela.

I think it has. I certainly know of people who come through our complaints process, such as perhaps British Sign Language users, people who have different language needs, who have used the oral process for going to the ombudsman, who, I have to honestly say, perhaps wouldn't have done previously, with the previous process. I can certainly give assurance from a health board perspective that I have seen that working in action. Perhaps people who didn't have the accessibility as much to those services as they should. I think there are lots of people who would prefer to speak to somebody. That's far more person centred for many people, particularly for the very personal issues that they're talking about as well. So, I think it's quite right that they are able to give oral complaints. I do think it's opened it up to more people in our communities and society.

In your organisation's evidence when we were going through the legislative process for the 2019 Act, you noted the importance of the PSOW verifying oral complaints and maintaining contact with those complainants during the process. How would you assess that has been implemented over the term of the Act?

I think that's quite difficult for me to comment on, because we don't see that engagement as an organisation. We'll have engagement with us and we will sometimes hear from people if we meet with them following conclusion of the ombudsman's investigation, for example, and anecdotally they will advise, but I wouldn't have any evidence that I could really say to you, because that's between the ombudsman's office and that individual. It's not something that we're able to observe.

Okay. Anything like that come through with HIW? Any observations?

No, not particularly. I don't think we'd have any specific evidence along those lines. I guess, just to make a connection with something else, though, I think the extended reviews and extended investigations that the ombudsman does do give a voice to others, not the initial complainant. To be able to extend that work and to champion the cause of others, or to see what happened to other people who perhaps didn't complain, falls into that category a little bit, giving a voice to people who perhaps didn't think to complain or didn't know how to or couldn't for some reason.

I'll bring Sam in at this point.

Thanks, Chair. I just want to focus a bit more on the own-initiative investigations a little further. Alun, you mentioned earlier the ability of the public services ombudsman to perhaps, at times, look at a more holistic view of issues or concerns, with a broader view. One of the areas of feedback we've received so far is that, if there's evidence, for example, of systemic maladministration, the public services ombudsman is not able to make recommendations to other public services in the same sector, but just may invite relevant bodies to make similar improvements. It feels not as strong as perhaps you'd want it to be. Obviously, recommendations would be a stronger position than just inviting people to make improvements. I'm just wondering if you have a view on how that might be impacting on the effectiveness of the public services ombudsman's powers, and whether that could or should be strengthened at all.

I think it's difficult. We write national reviews on theme subjects in a similar way, but they're contained within healthcare. I think, if you write something significant that is nationally focused, it becomes quite difficult to make recommendations that are relevant to everyone. So, I think requiring people to respond to the recommendations is probably as far as I would go in terms of what I'd want to see.

So, when we write a national review, we will write to all health boards and ask them to respond to the action plan. Now, their response might be, 'Recommendation 6 is not relevant to us for some reason', or, 'Recommendation 6, here's the evidence as to why there's no action for us here. We've assured ourselves we don't need to do 6, we're there already, it's good practice.'

I think it's difficult because I don't think you want to be too prescriptive about it. I don't think it should be about making recommendations and just expecting everyone to do something. I think it has to be a little bit more bespoke than that. Each organisation needs to be able to consider the findings, and I wouldn't say 'be left to take its own actions', but there's a maturity in organisations looking at a national piece of work and deciding what that means for them, and that can require or rely on strong internal governance within an organisation. So, if you take a health board, when we write reports, we expect the health board to be able to demonstrate that they've looked at that at board level, or at their quality and safety committee or something else, and to at least be able to demonstrate that they've looked at it and asked themselves the question, 'Do we need to do something here?' So, I'm not sure I'm a fan of—if that's the question—telling people they have to do something, but you wouldn't want to be too weak on it either. I think you do need to be able to require a response.

Mike, did you want to come in on that point?

Really, following on from what you just said, I've always seen the strength of the ombudsman being the fact that they write those reports, and when they give recommendations, that's not the end of it; those reports go into the public domain, they end up going before a sub-committee of the health board, and, as such, they raise the issues. Now, the recommendations to do x or y I see as much less important than actually getting the health board to look at it and letting—I would say the world—but letting other people in the area, by the fact you made it public, see it. Would you agree with that?

I totally agree. I think transparency and publicity, if they're not the same thing, are useful tools for those who scrutinise the services. So, drawing on my own organisation, if we say something isn't fit for purpose or isn't safe, that carries a huge amount of weight. We're not a regulator of the NHS, for example, so we don't take enforcement action, but no chief executive in Wales, health board or any other organisation wants the inspectorate or the ombudsman to come in and say, 'That's shocking, that's terrible, you need to do something, it's not good enough.' And I think that getting that out there, getting those recommendations out there, is part 1.

Yes, absolutely, public sector organisations, their internal governance should be able to pick these things up, whatever it is; it doesn't have to be by the ombudsman—you know, good practice. There are lots of standards authorities out there and you would expect them to suck that in, to have the capability and the capacity to suck things in, and say, 'What does that mean for us?', and to demonstrate what they're doing. And if they don't need to do anything, why—to demonstrate why it is that that's not relevant or they've already solved that problem.

Just finally on this point, other organisations do the same thing. Llais, for example, produce reports. I don't think they've got the power to tell people they've got to do something, but the fact they produce these reports and highlight problems brings it to the health board to look at and puts pressure on the chief executive to take action.

From a health board perspective then, Angela, would you concur with what's been said? And maybe from your experience of an ombudsman's report in another health board, how would that be dealt with by you? Is there a compulsion to look at it and respond, or is it more internal, making sure that you're aware of what's going on and then implementing some of those recommendations? Maybe you could unpack some of that for me.

Yes, absolutely. I think if it's a report that's in your own organisation then you obviously have to provide the evidence that you've complied with the recommendations. So, that's very, very clear, which is different to the own-initiative, isn't it, where I think it is shining a light on information. Going back to your other colleagues' comments, that's about raising awareness, I think, with everybody, and they need to then self-assess.

With all public interest reports of any health board, they go through something called the ombudsman network, which is an all-Wales network where there are representatives from each health board who deal with ombudsman work, and they would consider a public interest report. So, they're the ones that go into the public domain in their organisations as well. Some reports are so, I suppose, applicable across all organisations that you would expect to see that reported through your quality, safety and experience committees or your sub-committees to the board, whatever your set-up actually is. So, I think we do take very seriously the recommendations.

I think the other thing that's useful is the ombudsman casebook, which I think, since the new power has come in, has really developed quite a lot more, and that gives a summary of all of the cases where they've been upheld, because sometimes there's lots of learning that sits there, and it's not necessarily something that's gone into the public domain, but it is learning that's applicable across all organisations. So, that's certainly something that we look at when that's published as well, and I think that's really developed a lot as well.

I think that's a really helpful, extra insight, and that ombudsman network sounds like a real positive group to feed information through, which I guess gives assurances that, when there are specific investigations in specific areas, they are being considered elsewhere at least as well.

Sorry, Sam. Just on that point, there's something that's just occurred to me. With that, is it just health boards that are involved in that, or are local authorities also involved in that network?

At the moment, that ombudsman network is just health boards. As networks they have to mature and develop, but I think it's one of the things that we're looking at: do you need to grow? As you mature a network, I think you become more able to have other parties involved, because we know that many people look at all of these services, and I think, as we talk about private healthcare, for example, and the way things are changing, it may well be that there need to be some relationships built there as well. So, at the moment it's health boards, but I think if you were looking towards the future, I wouldn't say that it will remain as just health boards.

Thank you very much.

There have only been, I think, two of the own-initiative investigations undertaken with this legislation so far, so responses may not be thorough from you, as it were, but there's currently been a level of comment from previous witnesses that perhaps the way in which those topics are selected for own-initiative isn’t necessarily the most transparent process in the world. I was wondering what your thoughts might be on that, whether you think it is sufficiently transparent as to the topics that are selected by the ombudsman currently, and if it's not sufficiently transparent, why and how this could be improved. I appreciate there have only been two of those investigations on own-initiative so far, but if there's a comment, that would be appreciated.

For the wider review work that the ombudsman has done, the wider investigations, I can't tell you how they selected those, so I guess that suggests an answer to your question. Perhaps there could be more transparency. But what I can tell you is that the ombudsman spoke to me about her plans and asked for feedback and what did I think of that. I feel I've got an opportunity to say to the ombudsman at regular intervals, ‘Why don't you think about this as a topic?’ So, I feel adequately involved and given the opportunity to have a voice or to feed in my views. But I'm not sure how the decision is made.

I do also know that, being an organisation that carries out reviews of its own, it is difficult to know what to do when. It is difficult. They're complex—not difficult, but complex decisions. So, to give you an example, HIW did a national review of patient flow. Now, we all know that patient flow is a big issue in the NHS, and we did that work anyway because we felt that we needed to bring an independent piece of work and evidence to the table to demonstrate the extent of the challenges and so on. But you might, on other occasions, decide not to do something, because there is so much evidence out there that all you're doing is saying the same thing and you haven't actually added any value. So, you do have to ask yourself, if you're going to set about doing a large piece of expensive work, 'What value are we bringing? Are we duplicating the work of others?' So, I would retain the right to do a national review, even if another body was doing a review as well. I could do that, so we could both be doing the same piece of work. I think I'd have to have a good reason to do that, that we were bringing something different to the same conversation. As I said earlier on, there's that option of joint work as well, which is very, very powerful, when you bring more than one inspectorate, regulator or scrutineer together.

But, yes, I think that's a difficult one for me to answer, just because I don't know how they chose it. I wasn't looking either—I haven't gone looking. I don't feel I need to go and look and find a reason for them, to know why. I trust them to make that decision, knowing that it's complex. 

Thanks. Angela, is there anything you want to comment on that as well? You don't have to. 

I think, to be honest, Alun probably covered it. I can't comment on the transparency. I suppose we were told those were the ones being undertaken and I can understand why, but I would echo that view of making sure there's no duplication, or deciding, I think as was said, that you have a joint regulatory review. Because that would be incredibly powerful. 

So, we've talked about the start of the process, as it were—so, working together to make sure there's no duplication and the bit about transparency. We've talked about the public services ombudsman's ability to make recommendations or not, dependent on the scope of their work. I'm interested to understand how they share outcomes of their own- initiative investigations with yourselves, what that process is like, and how effective sharing those outcomes is in improving service delivery from your perspective as well.  

There's a couple of things I'd say about this, actually. So, some of the work that the ombudsman's done around extending its work, so, where it perhaps starts with a single case but it's concerned that other patients have been affected—I think I mentioned that earlier on—. To give you an example, there was an instance in north Wales where the ombudsman had concerns about the way some patients with prostate cancer had been tracked in the system, whether or not they received timely care, and I don't think the health board was reporting on that, because they felt they'd done their bit by sending those patients to England.

Now, I think the outcome of that was a change—. I'm not sure whether it was a legal change, but it was definitely a change in the ways the health boards report on cancer waits. So, by doing that piece of work, the ombudsman has influenced change with Welsh Government and the way in which cancer waits, or any kind of waits, are recorded and monitored, and the transparency around that.

So, I think there is an interesting point here about influence. Some of us organisations, including the ombudsman, it's not necessarily about the recommendations, it's about influencing. So, you bring something to light, you highlight a challenge or a problem, shine a light on it, and, from that, people will listen. If you put reasonable evidence behind something and make a case, then then you can effect change.

I can't remember quite what your question was. I did have a second point, but it's gone.

It may float back in. Angela, do you want to comment at all on that general thing about how the public services ombudsman shares the outcome of its own-initiative investigations?

Oh, can I answer that? Because my second point is probably perhaps more important. It's in my evidence that we submitted, but HIW hosts what we call healthcare summits twice a year, and we bring together a number of professional standards organisations, scrutineers, inspectorates and so on, including organisations like Care Inspectorate Wales, Audit Wales, ourselves, Welsh Government and so on. It's a group of people who all look at the world in a slightly different way and have different remits getting together and saying, 'Okay, what do we think of each of these organisations?' That's one of the main opportunities that the ombudsman has to provide details of the work that it's been doing, and they do do that—so, to come to that forum, and say to all those other organizations, 'Okay, we've got a concern about prostate cancer handling in north Wales, the way complaints are being dealt with, there's a backlog of complaints in a certain health board', and so on, and so on. So, that's a very significant opportunity for them to share, and they do share their findings in that way, from all of their work, not just the own-initiative work.

On that, I don't know if you wanted to follow up on that, but is there an issue there, where—

Conflict.

Yes, that conflict element of, you're in the jurisdiction of the PSOW, yet you're sharing a platform or sharing that summit with them, so—

Sharing information?

Yes, or just that you could be investigated by the ombudsman, but you're also working with the ombudsman. It's just how does that resolve itself, I suppose?

So, we have memorandums of understanding with all of our major, the organisations we work with, including the ombudsman, and that sets out both of our responsibilities for transparency: 'This is what you do, this is what we do.' In order to help each other discharge our roles, we will share certain types of information. Patient safety for us trumps everything else. Sometimes, it can be difficult to share things from a patient confidentiality point of view and so on, but patient safety—. The information commissioner would expect you to share, for there not to be barriers in the way when it comes to saving lives. So, it's not problematic for us to share things with the ombudsman if we're—

I'm thinking more of a conflict of, potentially, you could be the subject of an investigation as an organisation.

Yes, but I think the ombudsman—. In that session, the ombudsman would only be sharing information about health boards, so it wouldn't stray into what it thinks of us. And occasionally—not very often, but there are occasions where the ombudsman, as part of its role, has looked into complaints that we've handled where people weren't happy with that. That's a normal process, but that session is about the health boards, and, no, I don't—. I understand what you're saying, but I don't see—

It's just something that is a concern.

I think it's really important. In the same way, actually, that Audit Wales are there, and they could take an interest in many aspects of public sector services, including how we do things, or how Welsh Government does things. I think you have to just try and understand where that potential conflict is and not go there and work together for the good of the public.

Thank you. I don't know if Angela wanted to come back in on any of the points raised.

Yes. I think the—. I suppose, to go back to the point around the own-initiative investigation bit around it, I think if we look at the unpaid carers, for example, what we did, and what you would expect organisations to do, I think, was, 'Okay, actually, what do we add to this, what's our role here, what's this part of this?' One of the recommendations from the ministerial advisory group, for example, was that recognition of carers. So, one of the things we've really focused on in our charter is that recognition, because you won't get a carer's needs assessment if you're not recognised as being a carer, or you don't recognise yourself as being a carer. So, there has been a lot of focus around that work. So, I think what it does do is make you look at your practices, which I think is really important, and often that will go beyond, sometimes, the scope of that investigation as well. But that's actually what a good investigation does: I think it shines a light on that and actually gets you to look at the whole system that you're providing and what your role is in that, really.

Okay. Diolch yn fawr. Over to Mike. Diolch.

Back in 2019—it doesn't seem that long ago to me—the NHS Confederation noted during the legislative process that the health sector already had a formal complaints process, 'Putting Things Right'. Of course, if that worked, the ombudsman would not have any health complaints, would they? So, there are problems, in that 'Putting Things Right' doesn't always put things right. But, moving on from that, the extended complaints handling powers, has that impacted or interacted with 'Putting Things Right', has it led to improvements in complaints handling and reporting, and has it led to a reduction in the number of complaints that the ombudsman is investigating post 'Putting Things Right'?

Do you want me to go first?

Yes, if you want.

That's an interesting perspective. So, I'm not sure whether I'm incorrect in thinking this, but my feeling, and the perception I get from those who work in the system, is that 'Putting Things Right' extends into the ombudsman, that that's just part of the process. That's how I see the world. So, if 'Putting Things Right' is an NHS process, the ombudsman is on the tail end of it, in a sense. I just see it as a continuum, really, not as a problem that the ombudsman becomes involved if the NHS itself can't solve problems. I think the ombudsman plays an important role, and I don't see a problem there.

But the ombudsman—and we've all had experience of sending things to the ombudsman on behalf of constituents—says you have to exhaust the internal complaints procedure first, which is 'Putting Things Right', which is the internal complaints procedure of the health boards, isn't it?

It is in the first instance. I mean, I don't look at the figures regularly, but my understanding is that the health boards are—. It's probably a better one for Angela, but my understanding is that most health boards are dealing with complaints in a timely way, and getting a decent number of closures. I think the number of complaints that then go on to be considered by the ombudsman—. Well, the figures are the figures, so you can read what you want into that. 

From my perspective, since 2020 and COVID, we receive—. The number of people who choose to call us and to tell us about something, what we call 'concerns', has more than doubled. So, it's gone from around 300 to over 700, and I think some of that is about—. It says something about the NHS and the challenges it's had. Some of it is about people perhaps finding their voice, some of it is about awareness of us, as an option to come to us and tell us. So, we don't deal with complaints, but if people come to us, e-mail us, ring us, whatever way in which they contact us, to tell us about something, we use that as intelligence. So, it's helpful for us to know that somebody had a problem in a service, but what we then do is refer them on. So, we say, 'Okay, well, have you complained to the health board yet? And if not, you should, because that's the "Putting Things Right" process.' And if they say to us, 'Well, yes, I've complained to the health board and didn't get anywhere', we say, 'Okay, well, look, here's the process: you need to go to the ombudsman', which, I guess, why, in my brain, 'Putting Things Right' includes the ombudsman, but I'm probably incorrect there and I take your point.

I guess the point I'm trying to make here is that the number of people who call us has gone up dramatically—well, Angela may have a view on this, whether the number of people choosing to complain has gone up, and what then happens to that. Consequently, the number of people who we refer on to the ombudsman has gone up as well, because we're saying, 'Okay, this is where you're at in the process, and you need to speak to them.' So, there has been a—. I think it's really difficult to interpret the figures, because everything has gone up, because the demand has gone up, and people—. Some of that could be because—. I think it would be crude to say that the number of complaints has gone up because the system's worse; some of it might be about people. Perhaps the ombudsman has done a good job about helping people to understand its role. Perhaps the health boards have done a really good job in advertising the 'Putting Things Right' process, and people think to give that feedback. Again, I'll put this one on to Angela, but I'm sure that you would like no-one to complain ever about anything because it's perfect, but that's not the real world. The real world is that, actually, you want to hear, you want to get that feedback, you want to learn from it, and from that learning comes improvements.

So, yes, in an ideal world, no-one would ever get to the ombudsman, but some of these cases are very complex, and people will. And there is no closure for some people where something has gone wrong. We often get people who contact us over and over, and we've exhausted our powers, and we're saying to them, 'Look—.' You wonder what closure looks like. You wonder—. If a loved one has died in tragic circumstances and a mistake was made, it is difficult to bring closure to that, and the ombudsman is always going to be involved, I guess, in those cases.

I'm afraid, for some people, the only closure they'll have is that somebody gets jailed at the end of it because of what happened, and that's very unlikely to happen. And I've got people still coming to me, and I've been since 2011, who went to my predecessor before that.

Yes. And sometimes these are—. You know, I think it's quite unusual in the cases we see for it to be a single person responsible as well. Now, you can always go to the top of the organisation and say that the million things you do in your organisation are all your fault, which I guess goes with the territory a little bit, but often, the failures are complex and multifaceted and systemic, rather than an individual—. Generally, individuals who work in the system do it because they want there to be a positive outcome for a patient.

Maybe we'll hear from Angela now on this issue, or on this question.

Thank you. I think the ombudsman is the part of putting things right that has that independent view that people have the right to go to if they're not happy with the process that's been followed. I think the important thing for organisations is looking at how many of those cases the ombudsman then chooses to investigate, because we would have to provide evidence when something's referred to the ombudsman around, 'Have we followed due process? Has everything actually been exhausted? Is there a further resolution that we can offer?'

But it's quite right to have the ombudsman as that independent person that people are able to go to if they're not happy. The number of concerns across Wales has increased, and I think that's for a myriad of reasons. I think it's much more accessible, so people know how to raise concerns, and that's really important. I go back to one of my very first comments where we were talking about own-initiative: I will often worry about areas where we don't have any concerns raised because I think that's more worrying. So, just don't assume everything's right.

So I think, you know, it's important that people have that right to go to the ombudsman, but I do take your point. All organisations would love the fact that we are able to address all issues and resolve them to the person's satisfaction—that will never be the case for lots of very, very complex reasons, as my colleagues there have already outlined. So, I think it is difficult, but it's not a failure, it's right for people—. Some people need that independent view, and it's not an organisation investigating themselves, which is often one of the things that's raised around the 'Putting Things Right' process.

Okay, thank you. Perhaps I should have said this earlier: Swansea Bay University Health Board's complaints procedure, which is the only one I actually deal with, is very, very good and it's also very fast. So, I perhaps want to put that on the record.

The question I've got is on the public-private movement, when somebody goes— . It goes from—. And it's come out of a case in Llanelli, where somebody was in an NHS hospital, ended up having private provision, then ended up back at the NHS again, and the ombudsman could only do the two bits at the end—they couldn't do the meat in the sandwich, as it were. And that was seen as something that was necessary, but it hadn't been used up till now. Do you still think it's useful to have it?

Angela or Alun—? Yes, Alun, do you want to go first?

Do you want—?

Go on, Angela. I mean, I've got a couple of comments to make, but you go first, Angela; you've probably got more to say than me.

Okay. I think this is difficult in the way it's written in the Act because somebody has to receive private treatment that is linked to a public health service, and I think that makes it somewhat limited, then, to actually be able to undertake that level of investigation. Because you will, as you've just demonstrated, get a very piecemeal investigation, because there's only a certain part that will fall under jurisdiction to be investigated. And I think that, then, is very challenging with that part. So, I think it has real limitations, I would have to say, for their investigative powers. So, I've not seen it used very often; I can only think of one case that I'm aware of where it was actually utilised.

I was just going to add I think it's a slightly messy situation, I think, with healthcare provided by the independent sector, whether it's solely provided by the independent sector or it's the independent sector providing it for the NHS.

We are the regulator of independent healthcare in Wales, so we have oversight of certain services and the classic hospitals, mental health hospitals, acute hospitals, that are in the independent sector, so we've got an eye on whether those services are fit to provide healthcare in Wales. And should there be circumstances where we feel that there are systemic problems with them, then we have the ability to take enforcement action against those hospitals or to close them. So, I guess that's helpful; it doesn't necessarily help individuals to bring some kind of closure to their cases. That's not—. We would be interested in their case, but it's not our role to bring closure or some kind of adjudication to whatever happened.

There is an Independent Sector Complaints Adjudication Service, ISCAS, and that is a service that's funded by many of the independent sector hospitals. So, they pay into this service, and it runs independently. It's for you to determine whether or not that is independent when you've paid for it, but the idea is if a patient has got a concern about the care they received and they're not happy with the response they get from an independent sector organisation, they can go to ISCAS, as long as the organisation where they were treated is a member of ISCAS. So, there is that, but you can see from what I've just described that the organisation might not be a member of ISCAS, and so I guess you might be forced, as a patient, to take some kind of legal action instead, which, obviously, is not straightforward. I'm not saying there haven't be any cases, but it hasn't come across my desk that the ombudsman has done work in this area, and so that's a specific interest for me. So, yes, I heard what Angela said there about the ombudsman struggled to perhaps use those powers. But I like the idea of the principle, though, so that's not me making a case for them to be removed, but perhaps there's some improvement there and some thoughts—. There's food for thought there for the ombudsman.

Diolch yn fawr iawn. That brings us to the time on this item. Thank you so much for your time.

There will be a draft transcript for you to be able to check for accuracy after this session, but thank you very much for your time this morning.

So, we'll now move to item 5.