Public Services Management: Watchdogs kept on tight leash: Despite pledges in the Citizen's Charter, no-go zones limit the ombudsmen's powers to investigate complaints. Liza Donaldson reports

WHEN public services are not up to the mark, do citizens have the best complaints machinery possible for a fair hearing and redress?

The question is all the more relevant since the recent launch of the Government's Charter Mark scheme. It reminds us of the standards we should expect, that we have a right, in the words of the Citizen's Charter, to 'high-

quality services, responsive to . . . needs, provided efficiently at a reasonable cost' - especially since we pay for those services out of our own pockets.

Backing up the promises, the Charter also pledges that no area of public administration should be immune from a complaints procedure, except for special reasons such as national security.

However, as the National Consumer Council (NCC) recently pointed out, the final referees when administration goes wrong - the ombudsmen for central and local government and health - are all substantially limited, indeed excluded from investigating specific areas. Lady Wilcox, chairman of the NCC, highlighted some of the no-go zones for the public sector watchdogs at an ombudsmen conference in the summer. She said: 'A cynic might say some schemes appear to deliberately exclude the most serious grievances of all - a health service commissioner, for example, who cannot hear disputes which touch on clinical matters; a parliamentary commissioner who cannot consider 'bad laws'; a local government ombudsman who cannot consider something that affects all or most of the people in an area.'

Ombudsman schemes, after all, she said, have twin aims: first to resolve the 'hard rump' of complaints not resolved locally that need an impartial referee, and second to 'raise standards within the service department or industry concerned'. Their goals would appear to be in perfect harmony with the Citizen's Charter, in itself doing a magnificent job publicising the existence of government ombudsmen.

But the limitations on the public sector ombudsmen's jurisdiction persist, despite frequent calls for them to go. Fifteen years ago Justice, the British Section of the International Commission of Jurists, reviewing the first 10 years of the Parliamentary Commissioner for Administration - the ombudsman for central government - came to similar conclusions as the NCC. Its report, called Our Fettered Ombudsman, recommended that a number of changes should be made, the main one being that: 'The presumption must be that the Parliamentary Commissioner should be able to investigate, unless there are convincing reasons for excluding him.' Justice sought the lifting of the 'no-go' signs over a number of areas, including personnel matters and - more importantly as far as the public was concerned - over contractual or other commercial dealings between government departments or bodies. Both government and council ombudsmen are excluded here from investigation of matters which may fall short of police action, but which may constitute maladministration.

Justice's recommendation on contracts and commercial dealings had an honourable precedent. In 1976 the Royal Commission on Standards of Conduct in Public Life - the Salmon Commission, set up after the scandals of the Poulson affair - also recommended that this exclusion from the ombudsman's jurisdiction should be removed, seeing 'no convincing reason' it should not be. A quarter of a century after the launch of the parliamentary ombudsman this exemption - one of a number inserted, according to academics, in order not to 'frighten the establishment' - remains.

Meanwhile, large areas of public services, particularly in local government, have gone out to contract. Proposals in the White Papers on Competing for Quality in central and local government mean many more soon will be. Once services are completely hived off into the private sector - as large chunks of council housing and homes for the elderly have been - recourse to government ombudsmen, armed with the statutory powers of a High Court judge to subpoena witnesses, ceases to exist.

When a service is no longer being done 'by or on behalf of' government or councils, as the Scottish ombudsman has pointed out, he cannot intervene. His deputy, Janice Renton, said after the curious case of the painter Ian McCulloch and the Glasgow Royal Concert Hall: 'It is a dangerous area, which could inadvertently result in loss of rights to the citizen, at a time when citizens' rights are being promoted.'

Citizens' rights have been extended in other areas, however. Legislation has made it a requirement for complaints procedures to be set up on social services and the school curriculum, though 'internal school matters' are still excluded from the ombudsman's scrutiny. The NCC spotlights this in When Things Go Wrong at School, drawing the conclusion that the Government has made shifting the balance of power between consumers and professionals a goal, but that 'there is no convincing evidence that it has a coherent view of how redress mechanisms fit into its strategy'.

That is not to say that nothing is being done on complaints mechanisms. A huge amount of work on complaints at a lower level is being carried out and this, according to Dr Philip Giddings of Reading University's Centre for Ombudsman Studies, is where the majority of complaints are. The Citizen's Charter Unit is busy encouraging the creation of charters, to follow the 22 already completed, which contain clear references to complaints routes for citizens. Three councils, Bedfordshire, Harlow and Cambridge, have set up their own local ombudsmen schemes. At Cambridge telephone complaints are monitored, picking up problems early so they can be corrected.

David Widdicombe, QC, chairman of the Justice report, suggests that a more holistic approach to the framework of remedies is needed. But this approach appears to have been ruled out already. Sir Robin Butler, the Cabinet Secretary, said in a letter to the Parliamentary Ombudsman last year that there were no proposals to change the jurisdiction of the parliamentary watchdog, despite the Citizen's Charter. The decision reflected general satisfaction with the performance of the office and a wish to avoid tinkering with 'a machine that works well as it is'.

However, although a large body of opinion agrees with Sir Robin that the ombudsman principle - imported from Sweden - has been successfully transplanted here, the swell of voices calling for improvements is growing. It has been joined by commissioners themselves. In his evidence to the Select Committee on the Parliamentary Commissioner for Administration, William Reid argued that unlike his counterparts in local government in England, Scotland and Wales - and, incidentally, also the health service ombudsman - he cannot investigate complaints brought to him directly by a member of the public. Instead complaints must be 'filtered' through an MP. The result, Mr Reid notes, is that in an election year such as 1992 there are likely to be fewer complaints. MPs were otherwise engaged - a disruption which it must be assumed the complainant has to put up with or shut up, until normal service is resumed.

Mr Reid reports that the current system, which requires complaints to be written down, produced 801 in 1991. Independent observers note that this is a tiny proportion from a population of 56 million. The commissioner also records the fact that 1,344 telephone inquiries and 1,116 letters, mostly containing complaints which came in directly, had to be rerouted either to MPs or to the council ombudsman.

The head of the local government ombudsmen, Dr David Yardley, has suggested in his response to the Citizen's Charter that a greater contribution to raising standards of administration in local government could be made 'if current restrictions on their jurisdiction were removed, in particular those concerning education, contractual and commercial and personnel matters'.

Mr Widdicombe concurs, affirming that the Justice report's conclusions are as relevant today as they were in 1977. Despite the high standards of British public administration, and its integrity compared with poorer, developing countries, he believes 'the time is past ripe to look at exemptions'. Or as Lady Wilcox put it, tamed ombudsmen are no substitute for the real thing: 'We, the public, want impartial watchdogs, not pussycats.'

(Photograph omitted)