Official Report: Minutes of Evidence

Ad Hoc Committee on the Public Services Ombudsperson Bill, meeting on Tuesday, 2 June 2015

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Pat Sheehan (Deputy Chairperson)
Mr Cathal Boylan
Mr L Cree
Mr C Eastwood
Mr David Hilditch
Mr Trevor Lunn
Ms M McLaughlin
Mr Jim Wells


Mr Peter Tyndall, Ombudsman and Information Commissioner for Ireland

Public Services Ombudsperson Bill: Mr Peter Tyndall (Ombudsman and Information Commissioner for Ireland)

The Chairperson (Lord Morrow): Mr Tyndall, you are very welcome . Thank you for coming. I am delighted to welcome Mr Tyndall, who is the Ombudsman for Ireland.

Mr Peter Tyndall (Ombudsman and Information Commissioner for Ireland): I am grateful for the invitation and very glad for the opportunity to meet you. Thank you.

The Chairperson (Lord Morrow): I just want to say to members and to everyone who is listening that the session will be recorded by Hansard.

To give a wee bit of background information on Mr Tyndall, he was appointed in 2013 as Ireland's Ombudsman and Information Commissioner, and he previously served as Public Services Ombudsman for Wales. He is a member of the executive committee of the Ombudsman Association and is currently second vice-chair of the International Ombudsman Institute, having been president of the European region.

As I said, you are very welcome. Thank you for coming, and I invite you to say what you want to say.

Mr Tyndall: First, as I said in the brief paper that I made in response to your invitation to submit, the steps that you are taking are very important. It is very significant that this is Committee legislation that is being brought forward by the Assembly, because that marks the special relationship between an ombudsman and the parliamentary body to which they report.

The proposals to modernise the legislation in Northern Ireland are very welcome. The original legislation served its purpose at the time and has been amended over the years, but there comes a point where it is better to start from scratch. What you have done with the new legislation is to put forward proposals that I think mirror the best of international practice and bring together the two separate offices, making it more easy for members of the public to understand. It has a comprehensive jurisdiction, which is important, because people want to know where they can go to complain about public services. They want to be able to do that in a consistent and straightforward fashion. They do not really want to understand the nuanced differences between different pieces of legislation covering the same office, so jurisdiction is important, but also powers. I think that the legislation makes significant advances, particularly in the field of own-initiative investigation, which brings the office on a par with offices elsewhere on these islands and, more particularly, beyond, because own-initiative powers have been enjoyed by ombudsmen elsewhere for a very long time.

From my perspective, I have been an ombudsman within the UK and an ombudsman in Ireland. I think that it gives you a different view of the world. The legislation that is being proposed has much in common with the legislation in Wales, which, in its day, 10 years ago now, was very advanced. You have taken it a step further, which is important. Looking at it from the perspective of the South, some of the areas of jurisdiction and the particular issues around own-initiative powers bring it very much in line with the office there. From that perspective, I hope that I will be able to help you with any questions that you might have this morning about how some of these proposals work in practice, because I have experience in operating them.

Chairman, I am happy to take any questions.

The Chairperson (Lord Morrow): That is fine. Thanks very much.

Do any members want to ask Mr Tyndall a question? Mr Tyndall, perhaps I could ask one. Do you think that the Bill mirrors best practice internationally, or are there areas that you feel should or could be strengthened or improved?

Mr Tyndall: I think that it fits in with best practice in many respects, but there are areas where I have suggested there might be an opportunity to look across the water to Scotland. The ombudsman there is the Complaints Standards Authority.

I think that, as an ombudsman, you have a unique perspective on how well people are managing to deal with complaints from the public across the public service. One thing that became very obvious to me as an ombudsman in both jurisdictions was that there is an enormous variation in the way that different bodies in jurisdictions deal with complaints. That variation is a consequence of historical accident. When you start looking at why this body deals with it in this way and that one deals with it in that way, what you do not find is an argument that says that this is better for the service user; what you find is "That is the way we have always done it."

Being able to bring a single perspective on it brings a lot of advantages. One particular advantage for me is that people understand the timescales, so they know when they should get a reply regardless of which public body they are dealing with. In my experience, you will often get complaints that span more than one public body. If each of them is using a different complaint process, then the member of the public has got to deal with two separate complaints. When everyone is using the same complaints process, then you can deal with a complaint spanning more than one public body as a single complaint. That is clearly to the advantage of the person who is trying to get an understanding of what has happened. You may have a complaint, for instance, that spans social care and housing issues, and people do not want separate answers because, in their mind, the thing that has gone wrong is part of what should be a joined-up service and so they want a joined-up response.

The second issue where it seems to me that Scotland has excelled is in training for public servants. Most complaints are not made to dedicated complaints officers; they are made to people providing public services. It might be the person collecting your rubbish; it might be a nurse; it could be anyone working in the public service. Those people need to be well trained in how to initially deal with the complaint. If they deal well with it, it often will not escalate. By being able to provide good training to front-line staff in how to manage complaints, you can greatly improve people's experience of the public service.

This is one of the very striking things from complaints within industry. I was recently listening to the German travel services mediator, who leads on airline complaints. Germany had recently introduced a requirement for airlines to sign up to the airline complaints ombudsman. He had two things to say. The first thing — this will probably surprise you — was that the first airline to express an interest was Ryanair. It could see a commercial advantage in dealing quickly with complaints. The second point that he made was that, in the private sector, people have discovered that if you complain about a service and it is dealt with well, you are more likely to feel loyalty to the provider than if you never complained. The importance of dealing promptly with complaints first up is critical in all this. You do not want complaints coming to the ombudsman if you can avoid it; you want the service provider to deal with them. If you have a standard complaints system, you can provide training to front-line staff, which will improve the overall handling of complaints in the service. You also get a clear read across public bodies. If everybody is dealing with complaints in the same way, you can maintain statistics. If I was to say, "Where is there a gap in the legislation?", that is probably the only significant one that I have identified.

The Chairperson (Lord Morrow): Do you want to comment on the time factor? Do you think that that plays any role or part in the confidence-building of a complainant in dealing with their issue?

Mr Tyndall: I do, but it is not always as you would expect. At the moment, my office is dealing with a lot of complaints from people who are due to do their leaving cert, which is the equivalent of A levels, about access to a reader or scribe. They have some form of disability, such as dyslexia or perhaps an intellectual disability, which, they believe, entitles them to that, but they have been turned down for it. The exams start in a week. If they are going to get a response from my office, it is no good to them if I spend a year investigating it. You have to turn round some complaints almost the minute you receive them.

On the other hand, if you are looking, let's say, at a complex health issue, there can be no substitute sometimes for taking the time necessary to do a proper job. In those circumstances, I have found that people are generally prepared to wait for longer, provided that you keep them properly updated about what you are doing and they understand why you are doing it. In general, delay for no apparent reason and unexplained delay will undermine any confidence that people have in the complaints system. It has to be as prompt as it can reasonably be. One thing that you have to say about an ombudsman's work is that you have to be proportionate.

To give another example, if you have somebody complaining to you because they say that the Housing Executive has not sent somebody round to fix their boiler, they do not actually want an investigation or a report; they want you to ask somebody to fix it. I am sure that, if somebody rings from Tom Frawley's office to that effect, somebody gets round promptly. It is about making sure that there is no excessive delay. Some things have to be dealt with very quickly.

The Chairperson (Lord Morrow): I certainly agree with you; I suspect that getting the result is much more encouraging than getting a pile of paperwork. There is no doubt about that.

Mr Boylan: Thank you very much for the presentation. I have two points. Obviously, we are now taking the universities in under the remit. We received a presentation last week. They may feel that they have robust procedures in place to deal with that. Will you, in your experience, expand a wee bit on that? There is also the issue of the publication of reports. It may be different in Wales. Will you give us a wee bit of information on your experience of that?

Mr Tyndall: Very happily. The Ombudsman (Amendment) Act 2012 in Ireland brought the universities into my jurisdiction. There was some trepidation on their part on coming in. We look at administrative matters; we look for evidence of any maladministration in dealings with students. We get a relatively small number of complaints. In practice, it has not proved to be a problematic area of jurisdiction. Occasionally, somebody will be able to demonstrate that the university has not properly followed its processes and procedures and that that has led to an injustice to them. Under those circumstances, we will recommend that the university puts that right.

I was not there when the legislation was passed, but I have had cause to understand the debates subsequently. Clearly, matters of academic freedom are ones that academics take very seriously indeed, and properly so. On the other hand, if you are going to have a system that, effectively, is judge and jury in its own cause, people will be quite suspicious. They look to something that is palpably independent to provide a degree of reassurance on administrative matters. The ombudsman is well placed to do that. It certainly has not been problematic.

I was familiar with the system in England and Wales also. There is the Office of the Independent Adjudicator for higher education. That is a very long-established office. It is a recognised ombudsman and is a member of the Ombudsman Association, despite the name; it is not called an ombudsman, but that is precisely what it is. That has worked without much difficulty over many years. The only quibble that I ever heard from universities was not about administration; it was about the fact that they have to pay for it. I have always felt that that offers them some incentive to avoid having complaints made in the first place. I understand that there is some cost-per-case element to it.

On the subject of reporting, the original position with the UK Parliamentary and Health Service Ombudsman was that reports were something gold-plated, to be produced very rarely and to be laid before Parliament. That meant that an awful lot of work that the ombudsman did went under the radar. That is not helpful in a number of respects. First, it is very difficult for people to understand what decisions the ombudsman is taking. Secondly, and probably even more importantly, the learning that should be happening from those complaints is not available to bodies in jurisdiction. The subsequent legislation — the Welsh legislation in particular — meant that a report could be produced in any case that was decided, but it differentiated between two categories: public interest reports and ordinary reports. The purpose of public interest reports was very much in the name: it was to draw attention to areas of significant failure. The kind of reports that would be published as public interest reports might be cases of neglect or serious ill-treatment in a hospital, or serious failings by a housing authority in dealing with neighbour nuisance that led to people living lives of misery for extended times — those kinds of things. The other reports were originally produced, but just sat there.

The change was the introduction of digests, or the so-called ombudsman's casebook. That produces an easily digestible summary of each report, which is sent, primarily, to service providers. It is also sent to Members of the Welsh Assembly and to subscribers generally — people who take a particular interest, such as journalists. It is there and it is available. That does two things. First, it makes sure that all the decisions that are taken are in the public domain. Secondly, it means that if anybody wants a report, they can ask for it, but it does differentiate. Part of my concern is that if every report is published as a printed document, you will lose sight of the important ones. The advantage of the particular public report is that it draws attention to an issue of importance without hiding all the other information that is available, except in very rare circumstances. Occasionally, you get complaints, let us say, about a father in a family where there was a family dispute and there were issues that just could not properly be placed in the public domain, often because, no matter how much you anonymised it, people in the local community could identify who the people were from the story. Northern Ireland would be no different to Wales in that respect. One of the important things that an ombudsman does is to tell stories. I know that that is an odd thing to say, but it is the human stories that have the power to make changes to public services. That is why it is important that those stories should be in the public domain.

The other category of reports that I think should be placed in the public domain, because you have a need to know about them, and that should be laid before you, are ones where a public body has refused to implement recommendations. Under those circumstances, reports should always be prepared and brought to your attention as Members of the Assembly. It is your job to use political pressure to ensure that the recommendations are followed. Reporting is a balanced issue. Nothing should be hidden; it should all be available.

I will just make one further point. A colleague of mine in the Republic — the Pensions Ombudsman — said that if he makes an adjudication, he believes that he has failed. You would think that that is an odd thing to say, but the particular point that he was making is that he can quite often and usually resolve cases by settlement. That means that there is no final decision and the parties agree on an outcome. That comes back to the point that you made, Chairman, that finding a speedy resolution is often more important than the paperwork. What bothered me about that was that if he resolved, let us say, 15 cases with the same pension provider, there should be systemic learning from that. So it strikes me that the digest also has to include information about settlements, and not just information about reports. All the work of the ombudsman has opportunities for learning, and that has to be made available in the public domain.

The Chairperson (Lord Morrow): Thank you. That was a very comprehensive reply.

Mr Lunn: Thanks. Good morning. Do you find any overlap? You just mentioned the Pensions Ombudsman in the Republic. Do you find any overlap between your role and that of other ombudsmen? I am using "ombudsman" deliberately, because I saw what you said about ombudspersons. [Laughter.]

I just was not sure what the plural was. Do you find that you have to avoid situations that they are dealing with? Is there an overlap, or is there cooperation?

Mr Tyndall: Technically, there is more overlap in Wales, but that did not raise any issues because the Parliamentary and Health Service Ombudsman is equivalent to the situation in Northern Ireland. Some issues like taxes, which are in my jurisdiction now, were not in my jurisdiction in Wales. In practice, we had one or two cross-border cases in which somebody received treatment in both England and Wales.

It is more complicated in Ireland. One particular reason for that is the fact that there is a Children's Ombudsman. Consequently, when a complaint is in respect of somebody who is under 18, that will not be mine to investigate. We have a memorandum of understanding, and there is close contact between the offices.

Mr Lunn: Does it depend on what age the child was at the time that it happened or their age when the complaint was made?

Mr Tyndall: It is usually their age when it happened.

If you take the example that I gave about exams, a lot of cases about the junior cert, which is the equivalent of GCSEs in the Republic, go to the Children's Ombudsman, whereas the ones about the leaving cert — most people who take those exams are 18 — would come to me. We work together on that. It is easier to have a comprehensive jurisdiction. My jurisdiction in Ireland is pretty comprehensive across the public service, so although it will not surprise you that we get lots of people contacting us with complaints about their banks, we are happily able to put them in touch with the Financial Services Ombudsman. In fact, we can transfer people to the Financial Services Ombudsman from our switchboard, so they do not even know that they have come to the wrong office.

A multiplicity of ombudsmen is something that happened, in a UK context, in England, where there was the Local Government Ombudsman, the parliamentary ombudsman, the English health ombudsman and lots of other smaller ombudsman services. That is confusing for members of the public, and I prefer a comprehensive jurisdiction.

Mr Lunn: Maybe I missed it when you talked about the situation with the universities. Under your jurisdiction, can you investigate complaints from students or staff?

Mr Tyndall: I can investigate complaints from students.

Mr Lunn: About?

Mr Tyndall: About administrative matters.

Mr Lunn: I do not think that our Bill allows that.

Mr Tyndall: Complaints from students?

Mr Lunn: Yes. Am I right about that? I am not quite sure.

The Chairperson (Lord Morrow): I think that it allows students to make complaints about maladministration but not staff.

Mr Lunn: OK, staff then.

Mr Tyndall: No, I cannot take complaints from members of staff in bodies in my jurisdiction. Sorry, I need to qualify that: I cannot take complaints from them about the bodies that they work for. They can complain as members of the public. That is something else.

Mr Hilditch: Thanks for coming along, Peter. The Ombudsman for Ireland has the power to carry out own-initiative investigations. How has that been working? Is it dependent on resources, over and above what your normal work would be? How does that pan out?

Mr Tyndall: Up until now, the power has been used in the context of extending investigations. I think that I gave an example in my paper of a recent case where it became obvious to us that the complaints that we were dealing with from one or two local authorities suggested that most, if not all, local authorities were dealing with things in a particular way, but I did not have a complaint about all local authorities. Nonetheless, that enabled me, without having any concerns about jurisdiction, to extend the investigation and to deal with the matter systemically across the piece. That is quite a powerful use of it. Similar things were done in respect of various aspects of care in nursing homes and so on, and my predecessor extended investigations in that way.

We have recently undertaken our first completely own-initiative investigation, and I believe that I attached a copy of it with the paper that I submitted to you. We were very concerned about the lack of complaints about health care, and so we undertook a detailed own-initiative investigation of why we were not receiving complaints. Before we started, we thought that it was probably about poor signposting — you know, that people were not being told about their right to come to the ombudsman.

However, we found that the principal reason for not complaining about healthcare was that people were afraid of the consequences for themselves or their loved ones. This brought it home to me just how important own-initiative investigation is. First of all, if somebody says, "I want to complain. Here is the evidence, but I do not want my identity to be revealed", it is easy on that basis to open an own-initiative investigation. Tom could not do that at present; he needs a complaint. There is no doubt in my mind that it is an important power for that reason alone.

You have to use it sparingly, because it is resource-intensive. There is no question about that, and we brought in an additional investigator to work alongside our own staff. We do not have a dedicated team dealing with own-initiative investigations, but, on the other hand, we have a team of people who are primarily concerned with preparing public reports. This is similar work to the work that they do on complaints, if that makes sense. They deal with some of the bigger systemic complaints.

There is no question that you would need resource. You have to be sparing. There is no point in me doing an investigation that is properly the work of the regulator. For instance, I am on the point of signing a memorandum of understanding with the health regulator in which I agree to pass on evidence uncovered in complaints suggestive of systemic failings. We have been doing that for a number of years, anyway; but it will be captured for the first time. Similarly, they will pass on individual complaints that they cannot deal with to me. We are working on them passing on the complaint, rather than the complainant, because otherwise people tend to drop out. If people gear themselves up to ring somebody and get their story out, and they are told, "Sorry, it is not here; it is somewhere else", they give up at that point.

Own-initiative investigations are used sparingly. All, or almost all, European ombudsmen, to my knowledge, have the power. It has been there since the ombudsman office was first created. It was something that the UK, for some reason, did not adopt when it put its legislation in place, but when I looked at the constraints, they seemed unusual. I was not aware of the draft legislation. I was not aware of any similar constraints in place. I think there is a natural constraint, and you have implied it. You can only do limited number. We have taken a decision in the office not to do more than one at a time, the systemic-style ones, simply because of resource issues.

There are times, and I think that I alluded to this in my comments, when you have very vulnerable individuals who rely heavily on public services and are not well placed to complain. Examples would be people with intellectual disabilities who live in supported accommodation, whatever it might be. Those people cannot complain for themselves, but sometimes what you need to be able to do is investigate as though somebody had complained, so that you get a proper understanding of what happened. I value own-initiative powers, and I would say that the evidence suggests that you do not need the level of restriction currently in the draft legislation.

The Chairperson (Lord Morrow): Thank you. Peter, just on that point, you said that you thought some people would be disadvantaged in dealing with this issue. You raised the example of someone living in supported accommodation. Would that person not be in a good place to complain, bearing in mind that they do in fact have that kind of support around them, which others may not have?

Mr Tyndall: You would think so, but sadly evidence throughout history suggests the contrary. Only this week we saw a case in north Wales involving people in a mental health unit. A few months ago, there was the case in Ireland of patients with intellectual disabilities being abused by their carers in Áras Attracta. I investigated a day-care centre in Wales for people with learning disabilities. The complaint originally came from a member of staff. I could not look at it, but a parent was persuaded to make a complaint so that I could investigate. The complaint was upheld: people were being mistreated by the staff who were paid to support them. So, sometimes you do need that power. In an ideal world, people who receive that kind of support would be the safest, but history tells us that is not always so.

Mr Eastwood: Thank you for your presentation. Could you give us some examples of complaints of maladministration in universities? There were some concerns that students might complain about the grade they got and that sort of thing. Could you give us examples of how that worked out?

Mr Tyndall: Given the opportunity, students will complain about the grade they got, but such complaints are not within the jurisdiction of the ombudsman and would never be investigated. If, on the other hand, they said, for instance, that the lecturer was absent for lengthy periods and they missed out as a result, there might have been an administrative failing that we could look at. We could not look at it simply because they did not get the grade they expected and did not trust the judgement of the person doing the marking. That is an example of the complaints we get. Others are how people's periods of absence through illness were taken into account or the requirement to resit a year. All the issues are to do with the administration of the course, which might have impacted on outcomes, rather than the outcome itself.

I could commend to you very few examples from the work of the Irish office, because it is quite new, but I could commend to you the annual reports of the Office of the Independent Adjudicator (OIA) for higher education, which is based in England but covers England and Wales. It has extensive experience of dealing with these matters and is good at sifting the wheat from the chaff, so to speak, by identifying where there is a genuine suggestion that the university did not follow its processes or procedures or that they were not fair processes or procedures, as opposed to somebody not being happy with the outcome.

Mr Eastwood: I know you said that there were not a lot of complaints about the health service, so how do you decide to exercise your own-initiative powers? Is it the Joe Duffy show? How do you get a taste for where the public's mind is and where the issues are without people coming to you with complaints?

Mr Tyndall: It arises generally from your casework. You are looking at instances where there is an underrepresentation of complaints. That would be a very significant factor. So, we were looking, for instance, at the fact that something of the order of 60% of Tom's complaints are about health care, and most are about care and treatment issues. In my case, a much smaller proportion, maybe 20%, was about health care, and a lot of that was about funding and medical cards, because of the different healthcare system. So, that was what motivated that one.

The other two areas we had in mind were both about vulnerable groups of people who are not best placed to look after themselves. Unfortunately, because of what transpired in the news, it might appear as though Joe Duffy was setting our agenda. However, in fact, a year ago, before we embarked on this, we had in mind services for people with intellectual disabilities, because, unlike in Northern Ireland, a very high proportion are still in institutional care, and we feared that complaints from them would not find a voice. The second issue was around homelessness, because, again, we get very few complaints from homeless people, but that is probably because they are not very well placed to access a conventional complaints service. We wanted to have a look at that. You are looking at issues where you think that, if people were in a position to complain they would do so. Different ombudsmen will use different criteria.

Mr Cree: Good morning. Earlier you touched on grievance procedures. I can understand how a lot of bodies might perhaps not welcome the involvement of the ombudsman on the basis that they already have a grievance procedure or appeals procedure and that has not been exhausted. How do you handle that?

Mr Tyndall: Our general view is that people have to, first of all, attempt to resolve the complaint locally. If they have made one attempt to resolve it locally, then we will regard it as reasonable for them to come to us, so they do not necessarily have to exhaust every opportunity. For instance, a lot of my complaints are about things like welfare benefits. I know that it is a topical subject in these parts. There is an appeals process, so they can complain to the decision-maker in the first instance and then go for an appeal. We always ask them to do that, otherwise we would deal with nothing else, but, for instance, in a health complaint, or in the ones I told you of, around access to support for exams, we might well say, "Do it once". However, sometimes you look at it, and you see that the relationship between the service provider and the individual is so broken down that there is no purpose in sending somebody back around the track, because they are not going to believe anything that is said to them.

Our job is to be a neutral arbiter, not to be an advocate for the complainant or the defender of the public body. Public bodies generally understand that. Some are more resistant than others to investigation, but most are actually very cooperative. I think it is quite important that they should be. For a lot of public bodies where the relationship with a complainant has entirely broken down, being able to get a third party to look at it, regardless of the outcome, at least moves the complaint on, because otherwise it can consume an enormous amount of time and energy without leading to any useful outcome.

Mr Cree: Do you expect the complainant to have at least made some effort initially with the provider or supplier?

Mr Tyndall: Yes, but, as I said, I would not absolutely insist, because there are occasions when you need to use discretion, but they are rare occasions.

Mr Cree: The other thing I would like to ask is with reference to government Departments. We have taken some evidence already that suggests that the ombudsman could be involved in procurement, for example, which would create a bit of a difficulty in the departmental structure here. Some might be subject to investigation by the ombudsman and others may not. Have you had experience of that in any other jurisdiction?

Mr Tyndall: Yes, that is one of the interesting things. Most ombudsmen will say that the issue about the courts' jurisdiction and the ombudsman's jurisdiction is an interesting one. These days, with judicial review, almost any public service complaint could be brought to the courts, so, essentially, the ombudsman is using jurisdiction with almost every complaint to decide whether to investigate it or not. For an ordinary member of the public wanting to complain about their bin collections, the courts are not a realistic alternative, but for a lot of contractual disputes, where somebody says that a procurement exercise was not operated correctly, the correct place for that will be in the courts rather than with an ombudsman.

There are occasions when somebody is able to demonstrate that they cannot have access to the courts. Where there may be some administrative failings, we would look at it. Yes, I have had complaints about procurements, but, in general, you would not exercise your jurisdiction to investigate such a complaint, because the proper locus for that complaint to be heard is in the courts. I think most ombudsmen would treat it in exactly the same way.

Mr Cree: We have a particular issue with this. If, for example, legal aid is restricted because of budget constraints, does that change the picture?

Mr Tyndall: Having legal aid restricted because of budget places strains on an ombudsman's office because the ombudsman is capable of dealing with cases that would previously have been heard by the courts but are not because people cannot go to court. Mind you, a lot of people go as litigants in person, so removing legal aid causes problems elsewhere.

It does change the picture, not necessarily in these contractual disputes but for an individual citizen who, in the past, would have gone to court because they had access to legal aid. If those people do not have that access to legal aid, it could well influence the way that you use your discretion.

The Chairperson (Lord Morrow): If a case could have attracted legal aid but did not because there was no money, and a response came back to say, "Yes, this one merits legal aid. However, there are no funds there to do it", how would that be dealt with?

Mr Tyndall: The ombudsman will look at any complaint to see if it is in their jurisdiction, if there is evidence of maladministration and if there is evidence that the individual suffered an injustice as a consequence. Then, you will look at some of your other discretions, such as whether the person has a right of access to the courts. If the person could not exercise their right of access to the courts, that would inform how you use your power. If they could not exercise that right because they could not afford to be represented, whereas in the past I would have said to that person, "Go to the courts", as it is a complaint that I should investigate in every other respect, you might well say, "I will investigate it".

The Chairperson (Lord Morrow): So, the lack of funding is not a reason for not doing it.

Mr Tyndall: The lack —

The Chairperson (Lord Morrow): The lack of funds, the lack of money, the lack of budget and the shortfall in the budget.

Mr Tyndall: It might influence the way you exercise your discretion, but your decision as to whether to investigate would depend on the subject matter of the complaint and the injustice, as it would with any other complaint. It means that complaints will come to you that would not have done otherwise.

Mr Lunn: Sorry, I had to pop out.

Colum Eastwood asked the question about students. I want to make a small point around that. Our ombudsman will not be able to investigate matters of "academic judgement". Where does that begin and end? I am pretty sure that we have had situations over the years where examination questions or test questions have been wrongly framed in the opinion of the complainant but rightly framed in the opinion of the person who set the questions, and I do not know what the outcome was. Is that academic judgement?

Mr Tyndall: It is.

Mr Lunn: It is?

Mr Tyndall: Yes, it is,

Mr Lunn: OK. Fair enough.

Mr Tyndall: If the paper contained a lot of spelling errors or there was clearly an administrative mistake affecting it, you could look at it but not the content of the questions. The content of the questions is an issue of academic judgement.

Mr Lunn: I am looking at the administrative mistake in our notes, which leaves out the word "not". That gives a completely different context. Sorry, ladies.

The Chairperson (Lord Morrow): Maybe they did not ask the right question. [Laughter.]

Do any other members want to ask Peter a question? He is doing very well.

Mr Boylan: Part of some of the presentations that we have received has been about the actual definition of maladministration. Most MLAs will have gone to Planning Service in relation to practices in that organisation. Would you expand a wee bit on that area? You keep saying that you go back to maladministration; you used the universities as an example. Also, what about sanctions — I do not know whether that is the right word — or awards? In some cases, Planning Service has awarded costs. Some people have not been happy with that, but at least a procedure was followed. Could you expand a wee bit on that?

Mr Tyndall: I think that planning is one of the most frustrating jurisdictions for an ombudsman, as it is for MLAs. The situation is the same in both jurisdictions where I have worked, in that enforcement powers are discretionary, and, therefore, you have to see a gross breach or failure before taking enforcement action. I personally am of the view — it is not necessarily a popular view — that, in most cases, if you have a driving licence and you do not abide by the rules of the road, then you suffer a consequence. If you have a planning consent and you do not abide by it, it seems to me that you quite often suffer no consequences at all; in fact, you are better off not abiding by it. I used to see cases where somebody would build an extension on to their house, having followed all the correct procedures, and then find that a neighbour would build a bigger one that was in breach of the planning guidance. However, the planning authority would chose not to take enforcement action, and so there was almost nothing that could be done about it.

I will give you an example. In my current job, I have a situation that is just breathtaking, really, where somebody had permission for a grass runway. They built a tarmac strip one quarter of a mile long and had refuelling facilities, small buildings and so on, and this was being used, perhaps not as a commercial airfield and certainly not for domestic flights, but for someone flying in for their own purpose. I found against the planning authority and was on the point of saying that that is maladministration and it clearly should have taken enforcement action when it told me that it had: it had gone to court, and the court had thrown it out.

I find the whole thing extraordinarily frustrating. It seems to me that there is a perverse incentive to ignore planning law. It frustrates ombudsmen, and it frustrates politicians in discharging their constituency roles. If you are representing your constituents, it is very difficult for you. The problem is not with the ombudsman legislation; the problem is in the broad sphere of planning and whether it is amenable, or whether there is a way of fixing it. I would have. I would have fined people for breach of planning consent. I think that that would change the nature of the thing entirely. Clearly, there are sometimes inadvertent breaches, but some of what you see is so blatant that to be able to do it without any regard for the consequences seems to me to be wrong.

Still, ombudsmen are creatures of that legislation as much as you are, and, although you often find that bodies can exercise their discretion, they are entitled to do that, and you cannot fault them for doing that. A common-sense view would say that what they have done is wrong, but it is not wrong in law: therefore, you have to give answers to complainants that you feel very unhappy about.

The Chairperson (Lord Morrow): Maybe the old adage around planning is still true: it is better to say, "Sorry" than to ask permission.

Mr Tyndall: Unfortunately, as an ombudsman, I have seen evidence that that is, indeed, the case.

Mr Wells: I find this by far the most unsatisfactory aspect of the powers of the Northern Ireland Ombudsman. An Assembly question for written answer confirmed that the approval rate for retrospective applications is significantly higher than if people apply before building. I believe that that is because the planners' attitude is, "Well, what do you expect us to do? It is there already".

I have had many cases in South Down where someone has just decided to go ahead and build, whether a factory, a wall or an apartment. It is as simple as that. There is no planning at all. The planners, in response, meekly invite him or her to apply for permission, and, inevitably, they get approval. Since 1973, 17 structures have pulled down in Northern Ireland, and yet there are thousands and thousands of unauthorised or retrospectively approved structures.

The Chairperson (Lord Morrow): Jim, are you talking about major developments here?

Mr Wells: I am talking about everything from four-storey blocks of flats to walls. This is by far the biggest issue in my area, because people just go ahead and build. The rule is that, if you go ahead in Northern Ireland, you have a 92% chance of getting away with it; that is a simple fact of life.

I take the issue to the ombudsman. There is no option of a judicial review; there is not the An Bord Pleanála situation that you have in the Republic — that is the only Irish I know, by the way. [Laughter.]

That and Jackie Charlton is the only Irish I know. The only option that we have in Northern Ireland is to risk ruin by going to judicial review if we do not get legal aid or go to the ombudsman. You go to the ombudsman, the ombudsman very diligently investigates the matter, writes back and says, "Dear Mrs Smith, you are absolutely right: this is appalling. Please find £500 compensation and a warm, glowing letter to say that you were right all along". Meanwhile, the structure is still there. What are the powers in the Republic? Can the ombudsman's office mean anything if you cannot put the constituent back to where they were?

Mr Tyndall: I am as frustrated as you are. As I said, those are some of the most frustrating cases that I have dealt with as ombudsman. I think that you need to look to the planning legislation. If the powers were there, in the legislation, the ombudsman could deal with it. In cases that are not subject to complaint, nonetheless, the same thing applies. You are right: one way or another, it needs to be tackled. It is not a problem unique to Ireland or even to the UK and Ireland. It has also been endemic in parts of continental Europe. Somebody must have found a way to deal with this, but I could not tell you who they are.

Mr Wells: What are the powers in the Republic? What can you do? Are there more powers?

Mr Tyndall: They are the same.

Mr Wells: So, there is a warm glow in your heart that you were right all along and £500 or €500. Meanwhile, the fact that your property is devalued by tens of thousands —

Mr Tyndall: We can encourage; we can ask the planning authority to take enforcement action if we feel that it should have taken it and did not. However, that decision is often challenged in the courts and the courts overrule because they take the view that you mentioned: it is already there; sure, why would you knock it down?

Mr Wells: I can understand that if somebody does not get their DLA, they make a complaint, the ombudsman intervenes, they get a letter and they get their DLA, and therefore they are put back into the position where they would have been had the injustice not occurred. However, in planning, people have to live the rest of their lives with something that would never have been approved had approval been applied for it before it was built.

Mr Tyndall: Yes. I think the other thing that ombudsmen have been able to do is to look at the impact on the value of the dwelling that has been, if you like, blighted, using a valuer to see how much the property has lost in value and getting compensation accordingly. In some way, that means that people are not financially worse off, so it is not just compensation for having been right. Quite often, when something is built, it significantly reduces the value of adjoining property, and you can do something about that.

Broadly speaking, the issues that you are raising are ones where the element of discretion that local authorities have in enforcing planning consent is what gives you cause for concern. You need to look at that and at whether you can penalise people for building where they should not have. Both of those measures, taken together, would have a significant impact.

Mr Wells: Are you saying that you can compensate in the Republic? My experience is that people only get a few hundred or low-digit thousands of pounds. I have never come across someone whose house or property is unsellable because there is a four-storey block of flats behind them —

Mr Tyndall: I have done that in Wales.

Mr Wells: Have you been able to compensate them, at market value, for what they have lost?

Mr Tyndall: Yes, of course.

Mr Wells: I have never come across that here. Never. Thank you.

The Chairperson (Lord Morrow): Peter, thank you for your presentation and thank you for taking questions. Thank you very much for coming in. We appreciate it.

Mr Tyndall: Thank you very much, and, if there are any other questions that arise in the course of your deliberations where you think I might be able to assist you, please feel free to ask.

The Chairperson (Lord Morrow): Should it be "ombudsman" or "ombudsperson"?

Mr Tyndall: Personally, I would say "ombudsman".

Mr Tyndall: As I said, you can give the advice, but you would not "personoeuvre" your car.

The Chairperson (Lord Morrow): That seals a difficult issue. Thank you.

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