Minutes of a Meeting of the
LEGAL INTEREST GROUP OF THE OMBUDSMAN ASSOCIATION
Held at the office of the
OMBUDSMAN & INFORMATION COMMISSIONER FOR IRELAND
27 APRIL 2017
List of attendees:
MEMBER NAME / MEMBER ORGANISATION1. / Katrin Shaw (KS) / Public Services Ombudsman for Wales
2. / Carys Williams (CW) / Public Services Ombudsman for Wales
3. / Marilyn Morgan (MM) / Public Services Ombudsman for Wales
4. / Sarah Redford (SR) / Office of the Independent Adjudicator
5. / Donal Galligan (DG) / The Ombudsman Association
6. / Emer Doyle (ED) / Office of the Irish Ombudsman
7. / Madeleine Delaney (MD) / Office of the Irish Ombudsman
8. / Katherine Martin (KM) / Housing Ombudsman
9. / Andrea Hegarty (AH) / Northern Ireland Public Services Ombudsman
10. / Val Malloch (VM) / Scottish Public Services Ombudsman
11. / Patrick O’Connell (POC) / Browne Jacobson
12. / Niamh McKeague (NMK) / Garda Síochána Ombudsman Commission
13. / Suzanne Hackett (SH) / Garda Síochána Ombudsman Commission
14. / Virginia Cooper (VC) / Bevan Brittan
15. / Amy Tschobotko (AT) / Bevan Brittan
16. / Brian O’Neill (BON) / Ombudsman for the Defence Forces
17. / Chris Jackson (CJ) / Independent Complaints Reviewer
1. Welcome
1.1 KS, Chairperson, opened the meeting and thanked everyone for attending. KS also welcomed those who had not attended LIG meetings previously.
2. Notes of Meeting Held on 21 October 2016 at the Office of the Public Services Ombudsman for Wales
2.1 The minutes from the previous meeting were agreed.
3. Matters Arising
3.1 Minute 4 – Thanks were recorded to everyone involved in the Data Protection Guidance document which had been published on the OA website in January.
4. The Legal Interest Group Database
4.1 Richard Kirkham (RK) had unfortunately had to submit his apologies for the meeting and had therefore emailed the following questions for the group to discuss in his absence:
a) Does the group have any comments, recommendations etc. as to what should be on the legal database? And/or does the paper I submitted to the Group broadly capture what you were expecting? Is there any extra data/information that you might want me to produce/identify?
b) Would the group be happy for 3/4 members to be available to provide ongoing feedback as the project progresses during the summer (I was anticipating through emails and skype)?
4.2 Taking the second question regarding a sub group of members, it was agreed that there should be representation from each of the jurisdictions if possible.
4.3 The group discussed whether the Legal Database would be accessed through a link on the OA website or whether it would be hosted on the OA website. This therefore raised the question of whether ownership of the Database would lie with RK or the OA. Either scenario had implications as there could be copyright issues. It was agreed that clarity was needed in respect of ownership of both the Database and the content as the group were reminded that they shouldn’t assume they own the content. Wikipedia was given as an example of a website where anyone can upload information about anything.
4.4 The discussion went on to talk about the definitions of categories and the need for good explanations but also terminology that works across the jurisdictions and sectors. Also, the categories used would need to be searchable within the Database.
4.5 There was also the issue of who would ultimately take responsibility for updating the Database and that people from other schemes who do not regularly attend the OA LIG would need to be co-opted to assist.
4.6 Further clarity was also required regarding the list of schemes / directory. As members were aware, the OA website already lists all member schemes so there is likely to be duplication. It was agreed that the LIG could not commit to keeping entries about non-OA members up to date. Also, unless the information is always up to date, it will not get used and therefore there would be a reputational risk for each of the schemes involved.
4.7 The group were reminded that the funding that had been approved by the Nuffield Foundation was based on the Database being ‘public’. Initial discussions had been around having an internal database or linking up with BAILII but a partnership with them was not possible however things had moved on considerably since then. The group said it would be helpful to see a copy of the funding submission to the Nuffield Foundation / project plan so RK would be asked to share this.
4.8 Case summaries were also discussed and it was agreed that although they would add value to the Database, they were very onerous to produce and many schemes would struggle with resources in this regard.
4.9 Members felt that the timescale in RK’s paper for the Database to be finalised by end 2017 was unrealistic due to the work involved and it was suggested that April 2018 would be more achievable.
4.10 It was agreed that there were a number of areas that required further discussion and clarification, preferably before the OA Conference.
4.11 Action: MM to set up a conference call between Richard Kirkham, the OA, PSOW, GSOC, SPSO, NIPSO and Bevan Brittan to discuss the following points:
· Whether the funding submission to the Nuffield Foundation / project plan can be shared with the group.
· Whether the Legal Database would be accessed through a link on the OA website or whether it would be hosted on the OA website.
· Ownership of both the Database and content.
· Categories to be used.
· Who would ultimately be responsible for updating the Database.
· The OA website already lists member schemes – would this be duplicated on the Database.
· Clarify purpose and value of having information about non-OA members on the database.
· Case summaries – very resource intensive – needs further discussion.
· Agree on timescales for Database to be finalised – April 2018?
5. Update on legislative changes in members’ schemes
5.1 VM said that wef 1 April 2017 the SPSO would have the power to look at complaints around Social Work functions and had extended powers on information sharing with the Care Inspectorate and Scottish Social Services Council.
5.2 The SPSO Jim Martin had put forward a number of suggestions to the Scottish Parliament for amendments to the SPSO legislation at his final committee appearance:
5.2.1 Further extension to share information with other health regulators e.g. the GMC, NMC etc. for regulatory purposes.
5.2.2 Ability to share anonymised information for learning as detailed in the draft PSO Bill for England.
5.2.3 The ability to issue a Special Report when there is a refusal to comply with recommendations.
5.2.4 The ability to make recommendations binding in certain circumstances e.g. personal injustice.
5.3 Not all of these suggestions would be put forward, the new Ombudsman would be looking at each and would ultimately decide which areas should be pursued with the Scottish Parliament.
5.4 VC said that the latest draft PSO Bill looked a little weaker than it had previously regarding recommendations. Mick King, the Local Government Ombudsman was keen to make sure recommendations were not diluted. There was no update on when the draft Bill may be taken forward.
5.5 DG said that the recently called General Election could mean new committee chairs and therefore a joint seminar with UKAJI and JUSTICE that had been pencilled in for July was likely to move to the autumn.
5.6 KS said that the National Assembly for Wales’ Finance Committee were minded to take the PSOW Bill forward. More information on indirect costs had been requested but the PSOW were hopeful that the Bill would progress shortly.
5.7 MD said that Ireland were taking complaints from refugees but there was a question on whether direct provision was in jurisdiction or not. They had not received many complaints to date however they were aware that people were afraid to complain as it may impact on their applications for status.
5.8 NMK said that there was likely to be a draft bill by the end of the year as the current structure of complaints was so unwieldy and needed to be streamlined. The Garda enquiry was also continuing.
5.9 BON reported that the Department for Defence were reviewing their redress system. The ODF had submitted a number of comments but had been told they were not within the scope. The ODF can look at a complaint from a member of the Defence Forces against a public servant however the Department for Defence were not happy about this and were putting every obstacle in their way and were threatening to revise legislation to weaken the powers of the ODF.
5.10 BON said that the ODF had a good relationship with members of the Defence Forces however they had no binding powers and therefore the military might agree with a recommendation but the minister can disagree and the recommendation is therefore meaningless.
5.11 KM said that the Housing scheme was up for renewal next year and recruitment was underway for a new Ombudsman. It was expected however that an interim Ombudsman would be in post for the next 5/6 months.
5.12 AH said that NIPSO had recently had an extension to their jurisdiction which meant they could look at schools. They were expecting to receive a large number of complaints in this regard.
5.13 POC said that plans to put the Prisoner and Probation Ombudsman on a statutory footing within the PHSO jurisdiction were on hold following the announcement of the General Election.
6. Update on members’ jurisprudence/cases
6.1 SR reported on a recent high court judgment which provided useful guidance for students and providers where the student wished to preserve their rights to bring legal proceedings against a provider. The court concluded that the OIA, as an ADR body, had a different function to the Court and therefore recourse to the OIA did not prevent a student from bringing a JR claim against their provider. Students should not lose their right to bring a JR claim because the OIA had considered their complaint.
6.2 Another case of interest that OIA had been involved in was that of a medical student who had previously studied and had voluntarily withdrawn. She wished to re-start her medical studies however the university had a blanket policy not to re-admit students.
6.3 Action: SR to circulate links to OIA cases.
6.4 BON told members about a legislative framework that guaranteed promotion to fixed term officers. An embargo on recruitment had been introduced and therefore a number of officers weren’t promoted as they should have been. The case went to the High Court and was upheld.
6.5 KS said that the PSOW had recently had a local government standards case that had gone to the Adjudication Panel for Wales. The Councillor (who was also an Assembly Member) had been suspended for a month and was now applying for permission to appeal the decision.
6.6 AH said that NIPSO had a similar case that they were waiting for judgment on. They were expecting the outcome to impact on other cases as there was a human rights element.
7. Update on Human Rights Issues
7.1 CW gave a presentation on how the PSOW was incorporating human rights considerations into its casework from the outset of an investigation. The HR Toolkit and examples had been circulated to the group before the meeting.
7.2 The Toolkit required investigators to take account of the FREDA principles (Fairness, Respect, Equality, Dignity & Autonomy) and the Articles of the Human Rights Act, whether a vulnerable person was involved or a person with protected characteristics etc.
7.3 The Toolkit was being trialled in one investigation team currently to ensure it was ‘fit for purpose’ before being rolled out to the rest of the PSOW investigation teams.
7.4 The Human Rights Assessment Group (HRAG) were meeting once a week to look at cases. Of the 43 cases examined since the trial began in November, the group had found a few where more reference was being made to human rights than would probably have been made had the toolkit not been followed.
7.5 CW said that it was likely that the toolkit would be refined slightly once the trial had concluded to take account of the UN Convention on the Rights of the Child and UN Convention on Rights of Persons with Disabilities.
7.6 Members asked if a report could specifically state that human rights had been breached. CW said that they had made reference in reports to potential engagement of Articles X and Y of the EHRC for example but not finding a breach.
7.7 POC said that the PHSO’s MENCAP case had said ‘in the Ombudsman’s opinion, the EHRC has been broken …’ and suggested that use of the words ‘in the Ombudsman’s opinion’ would be the way forward rather than stating that there had been a breach.
7.8 CW was asked if the PSOW would engage with the EHRC at an early stage if they felt there were breaches. CW said that they would and that they were hoping to develop stronger links with the EHRC but it was not a body listed in the PSOW Act which the Ombudsman could work jointly with on an investigation.