THE OMBUDSMAN ENTERPRISE AND ADMINISTRATIVE JUSTICE This important new book presents an overview of one of the key institutions of administrative justice: the ombudsman. It presents a well argued thesis based on a thorough review of the literature and some new empirical research concerning the changing role of, and future prospects for, ombudsmen. It makes excellent use of international comparisons with a particular emphasis on Commonwealth experience. It will be invaluable to academics and policy-makers working in the eld whilst also being accessible to students. Tom Mullen, University of Glasgow, UK This page has been left blank intentionally The Ombudsman Enterprise and Administrative Justice TREVOR BUCK De Montfort University, UK RICHARD KIRKHAM University of Shefeld, UK BRIAN THOMPSON University of Liverpool, UK © Trevor Buck, Richard Kirkham and Brian Thompson 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Trevor Buck, Richard Kirkham and Brian Thompson have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identied as the authors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Buck, Trevor, 1951- The ombudsman enterprise and administrative justice. 1. Ombudspersons. 2. Complaints (Administrative procedure) 3. Administrative remedies. I. Title II. Kirkham, Richard. III. Thompson, Brian, 1955- 352.8'8-dc22 ISBN-13: 9780754675563 Library of Congress Cataloging-in-Publication Data Buck, Trevor, 1951- The ombudsman enterprise and administrative justice / by Trevor Buck, Richard Kirkham and Brian Thompson. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7556-3 (hardback) 1. Ombudspersons Great Britain. I. Kirkham, Richard. II. Thompson, Brian, 1955- III. Title. KD4900.B83 2010 352.8'80941 dc22 2010027679 ISBN 9780754675563 (hbk) ISBN 9781409420156 (ebk) I Contents List of Figures and Tables vii List of Abbreviations ix Foreword xi Preface xiii PART I THEORY AND CONTEXT 1 The Ombudsman Enterprise: An Introduction 3 2 The Constitutional Role of the Ombudsman 23 3 Concepts, Theories and Policies of Administrative Justice 53 PART II THE OMBUDSMAN TECHNIQUE 4 Putting it Right: Resolving Complaints and Assisting Citizens 91 5 Promoting Good Administration and Helping to Get it Right 125 PART III SETTING IT RIGHT 6 Independence and Accountability: Legitimizing the Ombudsman 155 7 Relationships, Networks and the Administrative Justice System 189 PART IV CONCLUSION 8 The Twenty-First Century Ombudsman Enterprise 223 Appendices 241 Bibliography 255 Index 287 This page has been left blank intentionally List of Figures and Tables Figures 3.1 A typology of administrative justice 62 3.2 A cultural typology of administrative justice 73 3.3 A typology of administrative justice: competition for dominance 75 4.1 Number of enquiries/complaints received by principal UK public sector ombudsman services, 2008-2009 101 8.1 Dynamic model for ‘getting things right rst time’ 226 Tables 2.1 The overall scale of redress systems across central government in 2003-2004 41 3.2 Features of the three justice models (Mashaw) 66 3.3 Six normative models of administrative justice 68 3.4 The organization of decision-making authority in administrative agencies 70 This page has been left blank intentionally List of Abbreviations AJTC Administrative Justice and Tribunals Council ADR Alternative Dispute Resolution AOA Asian Ombudsman Association AONI Assembly Ombudsman for Northern Ireland ABCIFER Association of British Civilian Internees Far East Region ANZOA Australian and New Zealand Ombudsman Association BIOA British and Irish Ombudsman Association CQC Care Quality Commission CAROA Caribbean Ombudsman Association CTRL Channel Tunnel Rail Link CIPFA Chartered Institute of Public Finance and Accountancy CSA Child Support Agency CIC Citizen Information Centre CSCI Commission for Social Care Inspection CO Commonwealth Ombudsman of Australia DCA Department for Constitutional Affairs DWP Department for Work and Pensions ESRC Economic and Social Research Council EPA Environmental Protection Agency ECHR European Convention on Human Rights EU European Union FOS Financial Ombudsman Service FSO Financial Services Ombudsman FTT First-tier Tribunal FoCO Forum of Canadian Ombudsmen HSO Health Service Ombudsman HC Healthcare Commission HMRC HM Revenue and Customs HO Housing Ombudsman IDeA Improvement and Development Agency ICE Independent Case Examiner IPCC Independent Police Complaints Commission IOA International Ombudsman Association IOI International Ombudsman Institute LGO Local Government Ombudsman LCD Lord Chancellor’s Department MOD Ministry of Defence [...]... firmly within the overall constitutional map and to understand the institution as a core accountability institution Another aim is to examine the relationships between the work of the ombudsman and other agents in the administrative justice system In the UK, the current ability of the administrative justice system to work harmoniously and rationally in the delivery of administrative justice is hampered... The Ombudsman Enterprise and Administrative Justice NAO National Audit Office NPM New Public Management NSWO New South Wales Ombudsman NZO New Zealand Ombudsman NICC Northern Ireland Commissioner for Complaints NIO Northern Ireland Ombudsman NIPrO Northern Ireland Prisoner Ombudsman NTO Northern Territory Ombudsman Ofsted Office of Standards in Education, Children’s Services and Skills ODPM... role that the ombudsman enterprise can and does perform and the manner in which this role has evolved This is the task which we have set ourselves in this book and it is delivered through both a theoretical analysis of the work of the ombudsmen and a review of the current techniques that the ombudsmen employ in the performance of their various functions Background and Context The history of the ombudsman. .. to describe the basic features of the ombudsman (Gottehrer and Hostina 1998) and measure the impact of the institution of the ombudsman (Passemiers et al 2009) Perhaps the most significant exposition of the potential power of the ombudsman institution and its place in the administrative justice system comes from Carol Harlow and Richard Rawlings (Harlow 1978; Harlow and Rawlings 1997) They have argued... administrative justice system In analysing the concept of administrative justice, Chapter 3 lays out three key features that need to be addressed in the design and analysis of institutions within the administrative justice system, namely, ‘getting it right’, ‘putting it right’ and 20 The Ombudsman Enterprise and Administrative Justice ‘setting it right’ These features provide the framework for the rest of the. .. achieve their potential then they need to be willing to be forward thinking and dynamic This chapter explores the means by which the use of the ombudsman s powers and the suitability of methods deployed can be monitored The chapter also evaluates the ability of the ombudsman to be independent and returns to the issue of the ombudsman s place in the constitution with an analysis of what is entailed by the. .. entailed by the label ‘Parliamentary Ombudsman Chapter 7 returns to a consideration of the bigger picture of administrative justice and the constitution The operation of the overall landscape in which the ombudsman operates is analysed, together with the ways in which the ombudsmen have been able to integrate themselves into the wider administrative justice system The ombudsman s characteristic lack of... tell the whole story, but a similar pattern emerges from elsewhere in the world In Australia, as in the UK, by far the largest contributor to the provision of administrative justice is the tribunal system However, due to the wider remits often given to the ombudsmen there, the difference between the workload of the ombudsmen and the courts is even starker than in the UK Meanwhile, the International Ombudsman. .. of the ombudsman 10 The Ombudsman Enterprise and Administrative Justice technique can be found to have been in operation many centuries before now, the modern reincarnation of the idea is almost universally understood to be the Swedish Justitieombudsman (see generally, Anderman 1962), with thereafter the idea spreading first to other Nordic countries and then, from its initial appearance in New Zealand... for reviewing the delivery of community services A common theme with these additional responsibilities is that they have significantly extended both the jurisdiction and the expectations of the office of the NSWO By contrast, the legislative amendments to the jurisdiction of the PO have tended to be technical in nature and retain the same basic understanding of the 19 Established under the Ombudsman Act . from the administrative justice system the capacity to provide an ongoing The Ombudsman Enterprise and Administrative Justice xiv holistic overview of administrative. Ombudsman NICC Northern Ireland Commissioner for Complaints NIO Northern Ireland Ombudsman NIPrO Northern Ireland Prisoner Ombudsman NTO Northern Territory Ombudsman Ofsted