Minutes of a Meeting of the
LEGAL INTEREST GROUP OF THE OMBUDSMAN ASSOCIATION
Held at the office of the
PUBLIC SERVICES OMBUDSMAN FOR WALES
21 OCTOBER 2016
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. / David Messling (DM) / 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. / Avi McCabe (AMC) / Northern Ireland Public Services Ombudsman
10. / Jamie McGrandles (JMG) / Scottish Public Services Ombudsman
11. / Ros Foster (RF) / Browne Jacobson
12. / Tony Child (TC) / Browne Jacobson
13. / Niamh McKeague (NMK) / Garda Síochána Ombudsman Commission
14. / Virginia Cooper (VC) / Local Government Ombudsman
15. / Dr Richard Kirkham (RK) / Guest Speaker, Sheffield University
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 8 April 2016 at the Office of the Independent Adjudicator for Higher Education
2.1 The minutes from the previous meeting were agreed, subject to the following minor amendment:
2.2 Minute 9.4 – the section relating to ‘relevant permissions’ should be deleted.
3. Matters Arising
3.1 Minute 4.5 - RK confirmed that an additional stage had been added to the database however the project was still ‘work in progress’.
3.2 Minute 4.11 - DG had provided a letter of support for the project on behalf of the Ombudsman Association.
3.3 Minute 4.14 – KS had met with Helen Holmes from PHSO and hoped to discuss the matter further with the Local Government Ombudsman Chief Executive the following week.
4. DPA Guidance Document
4.1 KS thanked AMC and Marie Anderson, NIPSO for their work on the DPA Guidance document. She explained that the purpose of the Guidance was to provide overarching guidance to members of the OA. It was not intended to bind all member organisations but it would provide a very useful tool for members.
4.2 MD said that the document was useful but access requests were treated differently in Ireland under different legislation. NMK echoed this and also pointed out that a lot of changes were due in 2018 and ‘right to privacy’ was likely to be a big issue.
4.3 After discussing whether the document should be reviewed to take account of differences in legislation, it was agreed that the document should stand as drafted but with a note included referencing the position of Irish schemes.
4.4 AMC said that PHSO had yet to comment on the document and it was agreed therefore that a further two weeks would be given for further comments to be made on the document prior to a finalised version as agreed by the LIG being presented to the OA Executive Committee in December.
4.5 The Guidance was agreed subject to any additional comments from members which would be circulated for information. The final document will then be circulated for information.
4.6 Action:
4.6.1 KS to circulate the draft for final comment and AMC to annotate the document to include the position of Irish schemes.
4.6.2 All to submit any further comments to AMC by 4 November 2016.
4.6.3 VC said she would check with colleagues at LGO that they had reviewed the document and submitted any comments.
5. The Legal Interest Group Database
5.1 RK said that he had applied to the Nuffield Foundation for funding and that a final decision would be given in November.
5.2 The OA has agreed to host the database and RK intends to procure support from Sheffield University’s IT company and use student support to build the database.
5.3 RK hopes that the database will be finished by Autumn 2017 but he may need some assistance from the group to finalise it.
5.4 RK said that if the funding is granted, the Nuffield Foundation will require the database to be publicly available. This would mean complainants, researchers, Ombudsman schemes etc. would be able to access the database, but the data that would be published would already be ‘public’ so it was more a case of having everything centralised for ease of access. There would also be links to schemes, statutes etc. on the site.
5.5 RK said that his plan, if he did not manage to secure the funding, would be to hand over all the information he had gathered to the OA.
5.6 Everyone agreed that it would be a very useful tool but there would need to be further discussion about what was actually published i.e. permission decisions not heard in public.
5.7 Action: RK and RF to discuss permission decisions etc. in more detail outside of the meeting.
5.8 Functus was also an issue for everyone and RK was asked if there would be research on this. RK said that once the database was up and running it could be reviewed and added to.
5.9 The Group discussed how the database would be publicised/marketed. RK said that the UKAJI would have a link on their website, it would be on RK’s own website and that of the Nuffield Foundation. All OA member schemes would also be asked to put a link on their websites to the database.
5.10 RK was asked if Ombudsman decisions would be included in the database but RK said that they would be included in the research but they would not be posted on the website at this stage.
6. Update on Human Rights Issues
6.1 JMG reported on an issue the SPSO had had with regard to disclosure of a GPs name in a report. The complainant wanted the GPs name included so that it was publicised however this had to be balanced against the risk to the GPs reputation.
6.2 Action: JMG to circulate link to SPSO case.
6.3 ED said that the medical journals in Ireland had also picked up on this dilemma and KS reported that they had similar issues with multi-partner practices.
6.4 RF reported on a GMC complaint where the GP had declined a request for release of data under a Subject Access Request. The complainant had applied to the Court under s.7. The Court decided not to disclose as there was mixed personal data in the complaint.
6.5 Action: RF to circulate link to judgement.
6.6 JMG said that they had recently been involved in an interesting case regarding prisoner handcuffing due to previous offending history. Strasbourg caselaw found that it was unlawful and in breach of Article 3.
6.7 Action: JMG to circulate link to judgement.
6.8 KS said that the PSOW had compiled a mini toolkit on Human Rights that the Investigation teams were currently trialling. The toolkit provided a template document for the investigators to work through alongside the file to ensure they knew what to look out for.
6.9 Action: KS to circulate mini toolkit to members.
6.10 RF said that Browne Jacobson had started looking at other conventions that would continue to apply post Brexit, for example the UN Convention on the Rights of Persons with Disabilities. RF emphasised the need for everyone to think broader than Europe.
6.11 Action: RF to share information gained, particularly on the UN Convention on the Rights of Persons with Disabilities.
6.12 DG said that the EHRC for Scotland, England and Wales had introduced a new strategy and were about to announce first tier action. An Access to Justice Steering Group had been set up to look at the options of first tier or engaging more with bodies in the existing landscape. Work was underway and the EHRC would liaise in due course.
7. Update on Legislative Changes in Members’ Schemes
7.1 KS had no further update on the draft PSOW Bill since the last meeting had taken place. Progress was in the hands of the National Assembly for Wales and the PSOW were hopeful that a Committee led Bill would be announced in the New Year.
7.2 VC said that the draft Public Services Ombudsman Bill in England was expected to be published in November. DG said that the Cabinet Office’s intention was to introduce the new Bill after May 2017 and that pre-legislative scrutiny was taking place now to make the passage through easier next year.
7.3 DG said that an announcement was expected shortly on the preferred candidate for the new LGO to replace Dr Jane Martin and that the application process had now closed for the PHSO and that it was hoped that interviews would take place before Christmas.
7.4 JMG said that SPSO would be taking on social work complaints with effect from 1 April 2017.
7.5 NMK said that Ireland was trying to simplify the Protected Disclosures Regulations as they were in need of reform.
7.6 MD said that the Attorney General’s office in Ireland was holding up the direct provision legislation regarding asylum and immigration status. It had been agreed that the Ombudsman’s office would have jurisdiction however discussions were now taking place regarding the wording to be used.
7.7 MD also said that it had been agreed that the Ombudsman’s office would get jurisdiction over prisons/prisoner complaints. The existing structure would be like the Scottish model and it was likely that this would be operational from 2018.
7.8 ED reported on clinical judgement. A new minister had taken over and had instigated a further consultation process.
7.9 AMC said that universities would be coming under NIPSO’s jurisdiction in April 2017 and outreach work on schools had been undertaken. There was currently a six stage complaints procedure. ED asked if academic judgements were a specific exclusion in NIPSO and AMC confirmed that they were.
7.10 RF reported on the ‘Seal’ medical case which was equivalent to JR55. Service failures had been identified and a recommendation had been made for the two GPs (Howarth & Miller) to pay the widow £15k. This had been challenged and permission had been given on three of five grounds. A substantive hearing would take place next year.
7.11 AMC said that NIPSO had significantly tightened up their processes following JR55 and they were looking at an alternative legal remedy. KS said that PSOW had built in a conversation with complainants about this during the investigation process.
8. Update on Members’ Jurisprudence/cases (including comment from RK on Supreme Court Decision JR55)
8.1 Following JR55, in over 80 cases, 24 have been quashed and of those 24, 18 were cases in which the JR55 grounds were used.
8.2 The group discussed the need to be more specific about what a payment is for and that it should be tied into injustice rather than maladministration. They also agreed that quality control was paramount and that more focus needed to be given to this.
8.3 RK said that no consideration had been given to jurisprudence, only two cases were referred throughout and asked the group if they felt that there was a fear that JR55 would enable complainants to question decisions etc.
8.4 RF said that the Scheme had been unpicked and TC said that Counsel had failed to follow instructions and that it was important now to get a judgement that would weaken JR55.
8.5 There was a discussion about financial redress and the Courts’ feeling that financial redress is the defining line between judiciary and ombudsmen.
8.6 DG said that he was hoping to invite a High Court Judge to the OA Biennial Conference in May 2017 and it was clear that there needs to be more robust understanding on both sides.
8.7 NMK said that GSOC would be defending a JR in December. Costs had been awarded against GSOC as they couldn’t be awarded against the Director of Public Prosecution. They were concerned that the whole scheme could be derailed if the ruling finds against them.
9. Ombudsman Association Update
9.1 DG reported that the Business Plan had been approved in May and that several new Executive Committee members had been elected at the AGM in May.
9.2 Legal opinion had been received on the Guidance for the Validation Committee and this was approved by the Executive Committee in September. Revalidation would therefore be starting shortly and members would be asked for more evidence.
9.3 A meeting to discuss the Service Standards Framework was due to take place on 1 November with public and ombudsman consultation in December/January.
9.4 Over 50 delegates had attended the Vulnerability Seminar and DG plans to incorporate outcomes from the seminar into the biennial conference in 2017.
9.5 A new interest group had been set up for casework and this group would have its first meeting in Dublin in November.
9.6 The newly formed Overseas Interest Group would have their meetings remotely via Skype/Video conference in order to share best practice.
9.7 The OA Newsletter would be re-launching shortly. It was intended to be an online quarterly newsletter and the group were asked to submit any articles to DG as soon as possible.