1. Introduction

1.1 The Northern Ireland Ombudsman (the Ombudsman) welcomes the proposal by the OFMDFM Committee of the Northern Ireland Assembly to create a new office of a Northern Ireland Public Services Ombudsman (NIPSO), with a power to commence an investigation on his own initiative. The purpose of this paper is for the current Ombudsman to provide detail and clarification of how the proposed power might be exercised and to provide examples of when, in his view, the own initiative power could have been applied in recent years and whether if the power had been available to him the likelihood it might have offered a more efficient and effective use of available resources. The Ombudsman’s office in this paper provides some examples of cases where he considers an own initiative authority would have facilitated a more comprehensive and complete scrutiny of the matter being investigated. The examples included in this paper are only by way of illustration and the Ombudsman is mindful that the new NIPSO will be making such decisions on his/her own account in the context of new legislation and an expanded remit and powers.

1.2 It is noted that ‘during the drafting of the NIPSO Bill, the Committee will take advice more generally on the options to require NIPSO to evidence the reasons for the own initiative inquiry’,[1] for example giving notice to the body or sector to be investigated. The Committee’s proposals for this power include the need to address the issue of potential overlap with the role of other investigatory bodies. The Committee is proposing that the NIPSO will be accountable to a Committee of the Assembly in relation to the proposed budget for, and actual expenditure on, own initiative investigations. In this paper, the Ombudsman’s office sets out a view on how this accountability might operate in practice. The issue of how an own initiative team within the office of the proposed NIPSO might be resourced has already been addressed by the Ombudsman and two distinct costing models provided[2]. For ease of reference a copy of the costing model is attached at Appendix 1.

1.3 The Ombudsman welcomes the Committee’s continued work and support in development of the NIPSO Bill which, when enacted, he believes will provide the citizens of Northern Ireland with the most modern and effective redress mechanism for administrative failures in the United Kingdom. The Ombudsman and his staff for their part are committed to providing any further information or clarification on the issues in this paper, that Committee members consider would be helpful.

2. Background

2.1 The Ombudsman Concept[3]

‘Ombudsman’ is a Swedish word meaning trusted official, and it was in Sweden in 1809 that the first ombudsman was appointed by the then King of Sweden. The Danish Ombudsman’s office was established in 1955 and in 1962 the first ombudsman office in the Commonwealth was introduced in New Zealand. The first Ombudsman appointed in the United Kingdom was the Parliamentary Commissioner for Complaints, brought into being by the Parliamentary Commissioner Act 1967 and Northern Ireland was the first region in the UK to have an ombudsman, the office being created in 1969 by the Stormont Parliament. Since its inception, the role of the ombudsman has been to independently investigate citizen’s complaints about civil administration. The Committee may find the following descriptions of what the traditional or classical ombudsman schemes can provide a helpful context for their discussion on how an own initiative power might be applied, while always being mindful of the unique role that an ombudsman offers; an alternative to the courts in providing citizens with recourse and remedy through proportionate redress for administrative failures.

‘An office provided for by the constitution or by action of the legislature or parliament headed by an independent, high level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government departments, agencies and officials and employee or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports’’[4]

An ombudsman has also been described as:

‘A reliable person who, for purposes of legal protection of individuals as well as parliamentary control, supervises almost all administrative bodies and civil servants. He cannot correct their decision but – based on submitted complaints or own initiatives – he may criticise them’.[5]

This second definition recognises the important dual role of the ombudsman as a protector of the rights of the citizen and also an officer of the legislature who examines the performance of public services provided by the Executive through its Departments, their agencies and public bodies.

2.2 The traditional model of Ombudsman, it is accepted, has always included an own initiative authority. In the Council of Europe, only the UK Ombudsman and half a dozen other countries[6] do not have own initiative powers. Those ombudsmen who do have the power use it responsibly but with positive effect. For instance, the Swedish Ombudsman reported in 2009 that the use of own initiative investigations resulted in adverse findings against public bodies in 80% of cases investigated where there had been only 10% adverse findings in those cases where individual cases brought by complainants were investigated. The academic study of own initiative powers conducted by Buck et al[7] in 2011 recommended that a ‘full own initiative power allied with better co-ordination with auditors and other integrity bodies would assist ombudsman bodies further to play to their existing public service strengths’. It is noteworthy that the Deloitte Review of the Office of the Northern Ireland Ombudsman (2004) recommended that the office should have a power to conduct an investigation or systemic review on its own initiative caveated only by the condition that an own initiative investigation should be undertaken following consultation with the C&AG.

2.3 More recently, the Parliamentary and Health Service Ombudsman, Dame Julie Mellor, gave evidence to the Public Administration Select Committee (PASC) at Westminster, seeking own initiative powers, basing her case for such a power on the need to provide access to justice for the most vulnerable, who are least likely to find or gain access to the services of an ombudsman[8]. In Northern Ireland, the present Ombudsman supports Dame Julie’s view that the use of own initiative should be evidence based and that, for example, it could be used to provide a voice to those who are unable for reasons of being marginalised, disabled or vulnerable to bring a complaint. In making her case for an own initiative power Dame Julie emphasises that in areas such as incapacity benefit and child support, such a power: ‘Would mean we could intervene early and prevent expensive escalation of complaints by sorting something out for the whole group, but it also prevents mistakes being repeated by being able to give a systemic remedy...the own initiative power would enable us to be better value for money, because we would be able to apply remedies to much wider groups of people, and that builds confidence in the whole complaints process’.

2.4 It is noteworthy that particular reference is made in the Committee’s deliberations on these issues on the need for an evidence base to inform a decision to initiate an own initiative investigation and this point has also been highlighted by the PHSO. Against the background of a heightened interest in the UK in own initiative powers, it may be helpful to the Committee if examples of the benefits to citizens arising from the use of such a power in other jurisdictions are identified (see section 3 below).

3. The Use of Own Initiative Powers in Other Jurisdictions

3.1 Some limited research has been undertaken by the Ombudsman with the purpose of providing information on the types of evidence that has been used to support a decision to commence an own initiative investigation in other jurisdictions, in particular Ireland, Canada (Ontario) and Malta. Although in Malta where, media reports have been the prompt for these type of investigations, the research suggested a trend that warranted an own initiative inquiry was usually related to the receipt of one or a number of complaints to the ombudsman.

Ireland

3.2 The background to own initiative in Ireland is illustrated by the table below which sets out the prompts associated with a number of own initiative investigations undertaken by the Irish Ombudsman. On 15 June 2011, the Committee will recall it heard from the then Irish Ombudsman, Mrs Emily O’Reilly, as to the occasions in the Republic of Ireland where she or her predecessors have used the own initiative power under Section 4(3) (b) of the Ombudsman Act 1980. These provisions confer a broad discretion and there are no limitations on when that power may be used. Over the period 2001 to 2010, there have been a total of 5 own initiative investigations on issues ranging from subventions in nursing home care, the failure to provide full refunds of tax to widows in receipt of public service occupational pensions,[9] to investigations into the right to nursing home care for older people[10]. The table below illustrates an outline of each of these own initiative investigations and highlights the triggers for the investigation and the impact or outcome of the investigation.

Date	Subject Matter	Linked to a complaint or complaints	Outcome
2001	Payment by health bodies of nursing home subventions	> 150 complaints	Government refund of €1.5 billion to families affected.
2002	Refund of tax to widows in receipt of occupational pensions	2 complaints	Refunds of €3.8 million
2006	Overcharging of in-patient nursing home services	1 complaint	Refund of €1,126 to complainant. Refund of €131,000 to 51 other families similarly affected
2008	Local authority waiver scheme for refuse collection charges	3 complaints	National review by department of waste management policies
2010	Right to long term nursing care for elderly	1200 complaints over 25 years	Report Not accepted by bodies

It has not been possible to ascertain if there were costs savings or efficiencies achieved in the Irish Ombudsman’s budget as a result of these inquiries. However, there is clearly a significant impact or benefit to citizens. With the exception of the Who Cares report (2010), the impact of these investigations is much wider than the individuals who brought the issue to the Ombudsman. The Oireachtas has now established an Oversight Committee dedicated, among other things, to considering Ombudsman reports but it was not in place when the Who Cares Report was issued. Ms O’Reilly referred to the report, as follows, when she appeared before the Oversight Committee for the first time on 20 July 2011:

‘Some other reports may deal with matters of significant public interest which I choose to bring to the attention of the Oireachtas and-or the public generally- for example, the Who Cares? report which I published in late 2010, just some months before the dissolution of the previous Dáil. This investigation looked at the actions of the former Department of Health and Children and of the Health Service Executive. It was based on 1,200 complaints received by my office over 25 years relating to the failure of the health boards and later the HSE to provide for older people in public nursing homes with the result that many had to avail of expensive private nursing home care. The report attracted considerable media attention but again I was disappointed that it was not considered by an Oireachtas committee.‘[11]

3.2 The Irish Ombudsman has a protocol which commits the Office to notify the relevant Minister/Department or the Chief Executive of the body that will be the subject of an own initiative investigation. The notification letter specifies the legal basis for the investigation, the prompt or reason for the investigation and its scope or terms of reference. The notification also includes a request for access to records and information relating to the issues which are to be the subject of the investigation. This is a practice which, as outlined later in this paper, the NIPSO may seek to replicate if the own initiative power is included in the legislation enacted by the Assembly to bring the new office of the NIPSO into being.

Canada (Ontario)

3.3 Section 14(2) of the Ombudsman Act 1990 provides the Ontario Ombudsman with a discretionary power to investigate a complaint from any person or to investigate on ‘his own motion’. There are no limitations on that discretionary power. Since 2005 the Ontario Ombudsman has reported on 30 systemic investigations led by the Special Ombudsman Response Team (SORT). This team was created in 2005 to conduct systemic investigations on high-profile issues affecting large numbers of people. These investigations are conducted only where the Ombudsman is satisfied that there is sufficient evidence to warrant an investigation. There are clear criteria for these systemic investigations:

· there is a serious and sensitive issue with a high public interest dimension;

· there are broad systemic implications;

· the facts of the complaint are complex and/or not agreed upon and;

· there is no likelihood of an informal resolution to the complaint.[12]

3.4 Like the Irish Ombudsman, the Ontario Ombudsman’s investigation is usually triggered by one or multiple complaints to his office. It is his practice to publicly announce his intention to conduct a SORT investigation and to call for other complaints or cases to be brought to his office. The investigation findings and recommendations are reported on publicly and the report is presented to Ontario’s Legislative Assembly. These reports can focus on a wide range of issues. For instance the Ontario Ombudsman has completed investigations and reported on a diverse range of issues including services available for adults with developmental difficulties (2012), the use of force in jails (2013), the monitoring of unlicensed day care (2013), and the limited funding available for the drug herceptin for patients with breast cancer (2011).

3.5 The issue of providing those who may be unable to make a formal complaint due to their perception of the potentially adverse consequences for their relative or friend in the care setting is highlighted by the Ontario Ombudsman’s report ‘Between a rock and a hard place’. In the concluding paragraph of Andre Marin’s report into the plight of parents who were forced to place their severely disabled children into the care of Children’s Aid Societies in order to secure the essential support their children needed, he reports on the palpable fear of the parents of the potential consequences of coming forward to his office to complain.[13] This can sometimes be the case in institutional care settings and thus this is the sort of circumstance where an own initiative investigation can provide a ‘voice’ to those who either are frightened or due to vulnerability or disability are unable to complain.

Malta

3.6 The Ombudsman Act 1995 provides the Maltese Ombudsman with a broad discretionary power to investigate the administrative functions of a body in his remit on his own initiative[14] or where he receives a complaint from a person aggrieved by such actions. There is no statutory limitation on this power but it is noteworthy that he will exercise this power where there is a ‘substantial public interest and importance are concerned’.[15] In addition, any Committee of the House of Representatives may refer any matter that is under consideration by it to the Ombudsman for investigation. The Prime Minister may also at anytime refer a matter for investigation by the Ombudsman which the Prime Minister considers should be investigated.

3.7 A limited examination of the own motion investigations of the Maltese Ombudsman (whose jurisdiction includes the University Ombudsman for Malta) has disclosed that own initiative investigations can be prompted by a complaint from an individual who has experienced maladministration, public debates on current public interest issues, a media report or from the Ombudsman’s experience of investigating other issues in a particular sector. For example, in 2012 the Ombudsman’s annual report makes reference to the commencement of an own initiative investigation into waiting lists for outpatient appointments in two Maltese hospitals and government health centres. This was prompted by ongoing public debate. An article in The Maltese Times on 6 November 2012 was the trigger for an own initiative investigation into the delay in obtaining appointments for babies and children with hearing difficulties[16]. In 2007 the Ombudsman published a report of an own motion investigation relating to the legislation and policies regulating requests for revision of papers and/or verification of exam scripts. This investigation was commenced as a result of the Ombudsman’s experience of complaints regarding t