Cynulliad Cenedlaethol Cymru

I'm very pleased to welcome everyone to this meeting of the Equality, Local Government and Communities Committee. The first item on our agenda today is introductions, apologies, substitutions and declarations of interest. We haven't received any apologies. Are there any declarations of interest? No.

In that case, the second item on our agenda today is a motion under Standing Order 17.42 to resolve to exclude the public with regard to items 3, 4 and 8 on our agenda today. Is the committee content so to do? Okay, thank you very much. We will then move into private session.

The committee moves on, then, to item 5 on our agenda today: the Public Services Ombudsman (Wales) Bill—evidence session 9. We will continue our scrutiny of the Bill in this session, and I'm very pleased to welcome today Daniel Hurford, head of policy—improvement and governance—for the Welsh Local Government Association; Davina Fiore, director of governance and legal services, City of Cardiff Council; and Liz Withers, head of policy and campaigns, Wales, Citizens Advice. Welcome to you all. Thanks very much for coming along to give evidence to committee today. Are you content if we move straight into questioning? Okay, thanks very much. The first questions today are from Mick Antoniw.

I very much welcome the evidence you've put in, and it seems to be quite a consensus of general support for the principle and objectives of the legislation. I'd like to explore just a couple of areas with regard to own-initiative investigations. Perhaps I can just ask you, first of all, what your understanding is of an own-initiative investigation—why it is needed, what it would do, what it would achieve, what gaps it would actually fill.

Sure. I think the ombudsman's case has been made over a number of years during the initial policy inquiry by the Finance Committee a couple of years back, and the original draft Bill. It's around a potential gap in the system where the ombudsman potentially identifies an area of concern resulting from an initial complaint that otherwise he couldn't look into, because he can only respond to a complaint when it's received by his office. So, I think in terms of the point of principle, I think it's a reasonable step to take for the Bill to introduce own-initiative powers for him, as I say, to investigate areas of concern or where he regards there to be potentially systemic issues across health services, across local government. 

If I could perhaps add to that, we're both supportive of this, and I'm sure you'll know better than I do that many other ombudsmen in other countries do already have those powers. But I think, from a practitioner's perspective at Cardiff council, we would be expecting it to be used very much as a sort of last-resort power, where there were systemic issues that weren't able to be resolved. We just have a slight concern—it's only a very slight concern—in terms of how far back they'd be able to go, and that concern is simply because if investigations start looking back over long periods of time and over years we don't always have the paper records and, obviously, officers who were involved have moved on and sometimes it's very difficult for us to be able to come up with that evidence. So, I think it would be helpful if there were to be own-initiative investigations, which we are supportive of, if there were some guidance in relation to the extent of those and maybe how far back they could go.

Yes, we're very supportive of the proposal for own-initiative investigations and have noted our support for them in the past. I think it's very important that, where the ombudsman is seeing a number of complaints in a sector or, actually, there are themes across different sectors, the ombudsman is able to take the opportunity to look across the board and see whether, where there are systemic issues, they can be addressed and actually looked into, investigated. It really provides an opportunity, I think, to look at service improvement. 

I think also it's really important to think about the opportunity to consider where there aren't complaints, so in sectors and also from particular groups of people who aren't particularly making complaints, so that organisations like ours and other advice agencies potentially have the opportunity to highlight where we are seeing systemic issues that the ombudsman may wish to consider and may wish to consider where there may be a gap in the types of complaints that he is seeing from particular groups of people or from particular sectors.

From our perspective, as I said, where there are common complaints and themes, we would like there to be potential for investigation, seeking input from organisations such as ours. Also, there's this particular issue of not only taking the opportunity to draw upon the expertise of organisations that might be able to identify where groups are underrepresented, but also for the ombudsman to do that as part of his wider look at his complaints. So, where particular groups are underrepresented, including those with protected characteristics, and also where particular sectors are underrepresented in his case load, we think he should be considering that as part of his decision making for own-initiative investigations.

We've also got some suggestions about clear principles we'd like to see in terms of decision making for own-initiative investigations, which I can talk about now or go into later. Shall I talk about those now as well?

Well, can I just explore a little bit? What you're talking about, and what the legislation does is a very significant extension in the role and the functions and the powers of the ombudsman. Now, you've seen the Bill as it's been presented. Within the Bill are obligations to consult, but only such persons as the ombudsman feels appropriate. This is in an environment where there are a number of other regulatory bodies, some established by statute that have very clear functions, and he has to be satisfied that the investigation is in the public interest. There's an issue as to the definition of what the public interest is. What concerns do you have, then, about how there are limits and checks and balances on the functions and the role of the ombudsman?

I'll speak on this. I think section 5 of the Bill covers some of the criteria and safeguards. You mentioned public interest, and there is an issue in terms of interpretation around that. An own-initiative investigation can only be triggered if there were concerns about particularly vulnerable people or where there are likely to be systemic issues. You mentioned consultation. Perhaps the Bill could be strengthened in terms of consultation with other regulatory bodies or other commissioners. Potentially, the Bill could suggest that those bodies have a veto over an investigation. I'm not suggesting necessarily that that is the case, because we would assume—other regulatory bodies have similar functions and, potentially, could duplicate each other already and generally they seem to manage that through discussion and forward work programming and joint work already. So, we are not overly concerned about this, but, potentially, if there was a debate between the ombudsman's office and a regulatory body over who should lead a particular investigation, there needs to be some sort of resolution around that, and you would assume that the two bodies would operate in the public interest and determine who was best to proceed with that.

The other potential safeguard that could perhaps be put on the face of the Bill is following on from the supplementary evidence that the Northern Ireland ombudsman submitted, which was around a decision framework, which outlines clear principles and clear criteria, and perhaps it could be on the face of the Bill that the ombudsman should draw out a set of principles and a decision framework that should be subject to full consultation with specified bodies there—the regulators, but also listed authorities, so that would be health boards and local authorities and so on. So, potentially, it could be tightened up in certain areas, but, generally, feedback from authorities has been that they're not overly concerned, given that current regulators potentially have duplicating powers already.

But you yourself raised the issue of regulatory burden and potential duplication and so on, and within this framework—. Again, it's important to members of the public that there is clarity as to who is doing what and who has responsibility, from the Welsh Local Government Association, on this concern over the cost of this. You raised some issues in respect of other bodies and, as you say, there might be scope there, but we need to get a bit more serious than that in that you've got other statutory bodies and there needs to be a much clearer and much more precise relationship, so that there's a clearer understanding as to the parameters, the circumstances—.

I think you mentioned the point of a last resort. How would you define, then, a last resort if we were to amend this legislation or recommend changes to it? Would that be something you'd almost want to be built into the legislation to specify the circumstance that it is a last resort and that, for example, the ombudsman should only have this power for own initiative in circumstances where there are, for example, no other statutory bodies that perform this function? I'd just appreciate—. Is that where you're coming from or not?

I think that's a valid point, because there is reference to consultation in the Bill, but it doesn't say, necessarily, what has to happen following that consultation. If there was a difference of opinion between a regulatory body with, perhaps, expertise and capacity within the particular field that the complaint was raised and the ombudsman's office, you might assume that the regulatory body with those particular functions might be better placed to investigate, given potential capacity or expertise.

On the other hand, the ombudsman might argue that his independent nature and the fact that he can ask different types of questions may allow him to investigate the complaint from a citizen perspective. But I think there possibly does need to be something in there about how the final decision is made, by whom and how that is reported. So, it's fine to say 'consultation', but I think a regulatory body within the specific field of a service or complaint should be able to say, 'Well, actually, thank you, ombudsman, thank you for bringing it to our attention, but we believe we are the better, more appropriate body to investigate this complaint.' So, perhaps that could be put in there, because I don't think that is on the face of the Bill.

Can I put one point to you, then? In respect of subsection 4(3) of the Bill where it says 

'the Ombudsman must consult such persons as the Ombudsman considers appropriate when making such a decision'—

that probably is far too weak and unacceptable in its current format to actually achieve that objective. Is that something you'd agree with?

As it stands, yes, but I thought that it would cross-reference with section 65 as well, which talks about consultation with specified people. But I think, given that section 4 is specifically around power to investigate own initiative, it would help, then, if that was the case, if there was a cross-reference through on that. But I think you're right, it does leave too much scope for openness and interpretation in terms of an absence of specified bodies for him to consult with in that section. 

And if I could add from the practitioners' point of view, I think we would wish to be consulted before there were an investigation under own-initiative powers. We are supportive of the ombudsman having these powers, but we would want to avoid duplication, because, obviously, it can lead to increased costs and also confusion in terms of the accountability and transparency for complainants.

I do apologise for my mobile phone going off, I thought I'd turned it off. I'm sorry.

No, it's okay, these things happen; there we are.

Daniel, in terms of the disputes that you've discussed with Mick Antoniw, would you have any body in mind in terms of who might resolve the dispute and decide which body dealt with an investigation?

Not really. Whether, say, the regulatory bodies themselves should have a power of veto, I'm not sure. That was just something I was throwing into the mix. I'm not sure whether any specific body should have the trump card or the veto, but I think there needs to be clarity around how a final decision over who investigates is made and recorded publicly.

Yes, including who would make that decision. Okay. Liz, sorry, at one stage, you were going to go on and—.

Yes, sorry, I just wanted to add, because I think our position or what I was going to mention is specifically around the own-initiative investigations, and, perhaps, our suggestion about there needing to be clear principles set up around those. So, we'd like to see: clear eligibility criteria and referral routes for investigations, so what can be investigated and how external organisations or individuals can suggest matters or issues for investigation, so what the routes for those things are; transparency around how investigations are chosen, I think that's really important for the public; clear parameters on how to engage in an investigation, so potential for calls for evidence from other organisations, but also thinking about taking into account the user perspective, so, if we were looking at a particular sector, how you would engage users within that sector; and then, finally, a timely communication of any outcome of an investigation. I think that's really key, as well.

Thanks for that, Liz. That's useful to have on the record. Okay, if there are no further questions on own-initiative investigations, we'll move on to sections 8 and 9 under Part 3, and complaints, and Siân Gwenllian.

Sorry, I missed the first bit. Just so I'm clear, you want to understand, kind of, why we think it should be on the face of the Bill, and also about the NHS Confederation's evidence as well. Was there anything else?

No.

So, we very much support the proposal in terms of ensuring that the ombudsman can take oral complaints. We think it's really important, particularly for people in vulnerable situations, so people who may have communication difficulties and perhaps mental health problems, in particular, who really, really struggle to express themselves in terms of resolving the problems—

I get that, but why does it have to be on the face of the Bill?

So, my understanding is that the ombudsman can take, as you say, oral complaints at the moment. I think, looking at the Scottish situation, my understanding is that in terms of the public services ombudsman in Scotland, they have actually now requested the power to have included the ability to take a complaint in any format, and so have that within the Bill. So, I think in terms of being very, very clear and having the safeguard in place, we would like to see it on the Bill to make sure that it's very clear that people can access that route.

In terms of the verification issue, we broadly support the evidence that the NHS Confederation has submitted. I think the proposal for the screening of oral complaints would make sense, particularly around considering whether the individual would benefit from advocacy support at that point and being able to recommend and suggest avenues for the individual to seek support, so making referrals.

And, again, I'd go back to the Scottish ombudsman example, where I'd even go one step further than oral complaints and suggest that consideration could be given to the power to take complaints in any format, because that, potentially, allows for futureproofing of the Bill, thinking about digital formats. For instance, in terms of the advice that we give, we already look at video advice. So, where we have discrimination advisers in only certain parts of Wales, we offer video advice to people across Wales, and that works really well. We also have people actually using web chats quite successfully, and it allows you to open up access to groups that perhaps would not necessarily access those services.

But it could also open the floodgates to a huge problem.

I think what's quite interesting, looking at the Scottish example where they've actually extended access to oral complaints around the Scottish welfare fund, they've seen an increase, but actually what they've also seen is an increase in access for vulnerable people—so, people who would not necessarily have complained previously. Certainly my understanding of the Scottish ombudsman's position is that they would like that extended more broadly, and don't actually feel that that would be burdensome in the sense that that would open the floodgates. I think also having a screening process in place, taking the first point of contact and saying, 'Okay, this person certainly does need to have their complaint dealt with orally', with or without an advocate, provides an opportunity at that screening point to say, 'Okay, what is the most appropriate route for this person?'

Just to follow on from that, I agree with your point: the power's already there for the ombudsman. If a person with a particular literacy issue or vulnerability needed to make a complaint, he could do that currently. But, I'm not sure how often that's been used and how often he's given that permission. But, I think symbolically it's important in terms of equality and accessibility to put something like this on the face of the Bill. As you know from our evidence, local authorities and a number of other public bodies—indeed, I think the Assembly itself—accept oral complaints, so I think it's only appropriate that the ombudsman is allowed to. As I say, he has powers to do it already, but more active permissive powers than currently exist.

In terms of opening the floodgates, it's an interesting one. That was my initial nervousness, that the ombudsman's office would have a significant increase in the number of complaints, but it seems from the regulatory impact assessment that he intends to refer many of the oral complaints he might receive, following this, back through the written route, and only deal with a limited number of complainants who couldn't access the normal channels through writing or through online forms, for example. So, it does appear that he wants to limit the number of oral complaints he actually deals with on that basis.

Do we need the checks that the NHS Confederation are talking about?

It may be helpful, certainly for the ombudsman's office, and possibly for members of the public. Local authorities: there isn't formal guidance to local authorities on how they deal with oral complaints. Currently, complaints managers share experiences, exchange best practice, and so on, so authorities generally, when they receive an oral complaint, use the same complaints questions, or fields in a database that might be filled in by an online complainant anyway, so, a call handler will just fill it in on behalf of the complainant anyway. So, there are criteria that are covered, and the relevant questions are covered. So, guidance might assist and it might provide clarity, certainly to members of the public. Members of the public might feel aggrieved if, in law, they're allowed to complain orally, but then the ombudsman's office says, 'Hang on, we're only going to deal with certain individuals orally. You'll have to go through the more formal written process.' So, guidance should possibly provide that clarity to members of the public and to other public bodies.

Siân, could I just bring Mick Antoniw in at this stage?

Could I just take an important point that arises, because it was raised by the ombudsman himself, in respect of the issue of whistleblowing, which has been an extremely difficult and controversial area? I know the trade unions have raised it consistently, and no real solution has been found to it. It overlaps not only with the issue of oral complaints, but also back into the own-initiative issue as well. So, it overlaps with those two areas.

Do you think that this adequately deals with the issue of whistleblowing that will be raised, one, in terms of being properly taken up, either by own initiative or as oral, because often there are issues of confidentiality in what people want to raise, and so on? There are also the dangers and risks, of course, of malicious matters being raised. Do you think that the generality of the Bill is sufficient to deal with that, or maybe there actually ought to be a section that specifically deals with the issue of whistleblowing and how that would be taken up?

I'm not sure about the implications of whistleblowing. I probably need to come back to you with some further written evidence on that. Again, whistleblowing comes back into the realm of the relevant jurisdictions and duplications, because whistleblowers obviously go to regulatory bodies, be they Care and Social Services Inspectorate Wales, Estyn or the Wales Audit Office, so that brings in certain aspects. But, obviously, it wasn't part of the original Bill consultation; I don't think it was part of the draft Bill or the original inquiry either, whistleblowing. So, it might be an interesting area to explore, but I'd have to get back to you.   

It was an area that was raised by the ombudsman himself, I think, if I recall rightly, in respect of one of the justifications, for example, for own-initiative, but, of course, a lot of whistleblowing issues are raised confidentially by people who want to raise them orally, so it sort of overlaps the two areas. So, it is a matter that the ombudsman himself has raised within this. I won't take it any further because, obviously—

Daniel, if you could get back to us with further written evidence when you've had time to give further consideration to those matters, that would be fine. Okay. Bethan. 

Yes, good point. So, taking the screening point initially, I think, from our perspective, by screening we mean thinking about the communication needs of the individual, the detail of the complaint, so in terms of, 'Is this the type of complaint—you know, at what level of this complaint would the ombudsman—'. So, like the triage that the ombudsman undertakes in terms of, 'Is this something that potentially we would take forward?' The communication needs of the individual in terms of whether they would be able to undertake things through writing or some other method, or whether they have additional communication needs. Their advocacy needs—is this someone who could actually have this conversation, and can they do it by themselves or do they need additional support? Is there anyone who is providing them with support, be that a family member, a friend or an advice agency? You know, who else is involved? I think all of those would need to be considered as part of a screening process, so I don't mean stopping people from accessing. By 'screening', I guess I mean thinking about the individual's needs on a case-by-case basis and thinking about what would be the best route for that individual. 

In terms of the information, so, if someone—. You asked about copies of information and if people went down the oral route. And, again, I think that's very much on a case-by-case basis. I would very much expect if people went down, and I would want to see, if people went down the full oral route, if that was open to them, that they would receive written—. You know, at the end of the other line, you would expect someone to be noting down everything that they said. There would be transcripts provided, and that individual would receive copies of all of those transcripts. I guess you would also need to consider the advocacy support that someone was getting the other end, because they may not have literacy skills to be able to check that transcript through. So, there's also a question there in terms of thinking about those support mechanisms in place for the individual. 

You've touched on the next question I was going to ask, really, about advocacy. You obviously think that there is a need for that advocacy support. What about the WLGA and Cardiff?

I'd absolutely agree with what's been said. Cardiff, along with other local authorities, does already accept oral complaints, and, effectively, whoever's dealing with that does fill in the complaint form, so it's there, and there is advocacy available to assist people where necessary. I'm sure we can always improve on that, and it's an area we're always looking to improve on. It is important that that support is there. 

I have to say if we force people down a written complaint route, sometimes it's very unhelpful, because if people aren't used to articulating their concerns in writing, you can get a written complaint that actually isn't helping in terms of trying to resolve it, and you end up arranging a meeting to try and really understand the complaint anyway. So, accepting an oral complaint straight off can actually make it a quicker and less stressful process for both sides. 

And, just finally, for Liz, you've picked up on this potential problem of the cost of phone calls. 

Yes. So, essentially, ideally, we'd like to see a freephone number, and that's thinking about—. Particularly when you're thinking about things like oral complaints, and the amount of time—. So, at the moment, it's the equivalent of a local call. So, if someone is making an oral complaint and potentially spending quite a lot of time on the phone explaining their situation, explaining their problem, quite a complex problem, they could be on the phone for half an hour, 45 minutes et cetera, and there's cost implications of that to individuals, particularly if they use a pay-as-you-go mobile. And I think that—. Well, we know from Ofcom data that people on low incomes are much more likely to have a pay-as-you-go mobile phone than they are to have a contract that is inclusive of local minutes. So, I think that's really important to consider. 

I think, at the minimum, we'd like to see a call-back service offered to people, but ideally—. And I know that in the Scottish situation, again with the Scottish welfare fund, that actually uses a freephone number, and my understanding is that that hasn't been prohibitive in terms of cost. So, I think taking into account—. It's about equality of access and about taking into account people's limited funds. You don't want to put people off in terms of having to buy credit, being concerned about how long they spend on the phone, how long they actually take to explain their complaints, and also having to make repeat calls as well, in terms of checking up on their complaint, providing further information. I think it's something that certainly needs to be taken into account. Ideally, freephone. If that isn't possible, we'd like to see a call-back service. 

Councils don't have that service, do they? There's no freephone for people. 

I'm not sure in terms of complaints—

Different councils have different arrangements for dealing with complaints. I know at Cardiff if someone asked us to call back, we would do that. But I'm not sure, if they don't ask, that we offer it. Although a number of our oral complaints do come in through our hubs, so it's people going in to our customer contact centres to speak to people anyway, because many people who perhaps don't want to fill in a written form actually aren't always as comfortable dealing with people not in a face-to-face situation anyway. And as you'll be aware, we do have hubs around the city, and because we are a city, it's easy for people to pop into somewhere. Some of the rural councils will have different issues around that because it'll be much harder for people to access a customer centre face to face. 

Okay. Daniel, if the WLGA was in a position to provide any further information on that, that would be useful. Also, perhaps, if you were able to provide information on the proportion of complaints that are received orally, and whether that information is collected, that would be useful as well. Jenny. 

I just wanted to pick up on something that Liz Withers was talking about earlier about people who may wish to support the complainant, either because they're ill or they've got communication difficulties, or whatever, and how we resolve the issue that we all get, which is that we have a complainant who then has, so to speak, delegated their complaint to other members of the family, who may have a rather different view as to what the issue is, and it sort of takes on legs of its own. In a situation where we are allowing oral complaints, how do we not lose sight of the complainant rather than those they're surrounded with?

I think it's a really good point. It's really challenging. Obviously, in an ideal world, it depends on the capacity and the communication levels of the individual, so, the actual individual who the complaint is about. You would ideally like to be able to make sure that you do have some kind of conversation with that individual and get some evidence directly from that person. I do know, in some cases, that the ombudsman is able to offer face-to-face meetings where people are in very vulnerable situations. So, perhaps that might be one option, and offering an interview to someone in that situation, potentially—perhaps something over the phone. I think it's very difficult, and this is where, sometimes, advocacy can be a good option because it's independent and it's impartial, but I do completely appreciate that you then have to have the permission of the family member who may be supporting that individual.

Okay. So, looking at the Bill as currently drafted, do you think that we should be strengthening the obligation on the ombudsman to actually put it in writing, unless there are very good reasons not to—so, clause 8?

I think so. And I think making it clear that the most important person here is the person who has experienced the problem and they should be, if at all possible, the person who you are trying to communicate with, make contact with and if there are ways to support that person to have their voice heard, then that voice should be heard as strongly as possible.

Okay, but ordinarily, you would expect oral complaints to be, if you like, fed back in writing by the ombudsman.

Yes.

Moving on, then, to section 10 and matters that may be investigated. Liz, in your evidence, although you support this particular provision, you thought that there was a need for assurances that no groups or individuals would be excluded as a result of the provision. What specific assurances would you like to see in that regard?

Does this relate to the own-initiative investigations?

The matters that may be investigated.

Right. Okay. I think this comes back to the point that I was making earlier in that I think it's really important that the ombudsman is regularly looking across his case load and looking to see if there are any gaps—so, if any particular groups, including people with protected characteristics, are particularly under-represented and if people are not making complaints for a particular reason, and if there are any particular sectors that are under-represented as well.

I know that, a few years ago, and I don't know what the situation is now, but certainly the ombudsman wasn't receiving very many complaints about care homes, for instance. I don't know if that's still the situation, but we would expect the ombudsman to be looking across his case load, identifying where there are areas under-represented and asking the question, 'Why?' I think that that is where external organisations—ourselves and others—can be a good touch-point in the sense of: 'What are you seeing through the doors?' Because I think that the important thing is, particularly for people in more vulnerable situations—. And it is important to say that, with most of the people who we see, we will always give them the option, when we're talking about an advice assessment process—so we're talking them through, 'What is your problem and what solution do you want?'—we will always give them the option to complain.

The vast majority of people who come through our doors do not want to complain—they want their issue resolved. So, most of the people who we see won't go through a complaints process; they also won't go to the ombudsman. I think that's quite important when you think about the fact that part of the ombudsman's role and the complaints process role is about improving services—service improvement and identifying systemic issues and addressing them. Then, there's a whole other side of things, namely the types of issues that we see that don't go through complaints and don't go through the ombudsman. And I think that that area needs to be reflected as well in terms of feeding into those systemic problems and the potential to improve those areas as well. So, I guess, to make a long story short: being able to identify where there are areas under-represented and also giving due consideration to those areas.

Okay, Liz, that's fine. We'll move on to Bethan on listed authorities and complaints-handling procedures.

I think it's something that we very strongly support. We know that there's a complaints-handling authority in Scotland, and you'll know that, prior to Citizens Advice—. So, Citizens Advice has consumer representation responsibilities. Prior to Citizens Advice, the organisation undertaking that work was Consumer Focus. So, our predecessor organisation in Scotland was actually very influential in providing and working alongside the Scottish Public Services Ombudsman in actually developing some of the processes for the complaints-handling authority.

I think it's really important that, when developing complaints procedures, and when you think about complaints policies and you think about the routes to complaining for individuals and citizens, you're actually thinking about it from the citizen perspective, as well as from an organisation and public sector perspective. We definitely feel the proposals are really important, the authority is really important and it has real potential to drive up standards within the public sector.

I think what we'd like to see is clear processes. If you have clear processes within a sector but also common themes across sectors, so between particular public authorities but also across, you have the potential to actually more easily identify common themes and common challenges for those organisations, and also look at outcomes and review the extent to which there are different outcomes and where there are challenges for particular types of organisations and how you can support those to improve their complaints processes and ensure that hopefully people don't have to complain in the first place. 

I think, generally, yes. As I understand it, the complaints-handling authority will be towards the end of the process—analysing data, trends and so on, potentially providing guidance on model complaints and so on. So, we broadly support the concept. Our nervousness, as ever, with a national body like that is the risk of prescription and bureaucracy. If a standards authority says, 'You must produce huge amounts of data, and you must comply with these rigid complaints policies or guidance', that's where we get nervous.

But, as far we we understand it, and in terms of discussions with the ombudsman and hearing evidence previously, it would be around analysing data trends. A lot of the data already exists and is reported within authorities and other bodies, but it would be analysing it more effectively on a national basis—looking at trends and potentially informing his work or others' work in terms of, as Liz was saying, is there an area where there is under-representation in terms of complaints coming forward. So, it's a mechanism to drive good practice, as far as we understand.

Are you saying, then, Daniel, that you wouldn't want to see the power for the ombudsman to impose a particular system? Is that what you're saying?

Not so much, because there is the model complaints policy already in existence, which was developed by the previous ombudsman's office, the Welsh Government, local authorities and so on. So, there was a partnership effort in designing that model policy, and we would assume that the model policy wouldn't change substantially if it became statutorily enforced. So, we wouldn't be too concerned. But, if there was a wholesale change that meant authorities had to change their complaints-handling processes, invest in new IT equipment and software and so on, we'd be concerned then. But, as far as we understand, this wouldn't change the nature of things too much, but it would change the statutory force of it.

If I could add to that, we would be concerned if there wasn't a degree of flexibility in processes. Because, for example, most authorities in Wales have a two-tier complaints process for people to go through. In fact, Cardiff doesn't. Cardiff operates on the belief that we investigate once and investigate very thoroughly. We did have a two-tier process, but actually the second-tier process really was just a rubber stamp on the first tier, so we took that out a number of years ago. The sort of thing where we'd be nervous would be if it was going to be one size that fits all, where you have a whole range of different public bodies in Wales that have very different complaints processes. If something was imposed that we didn't currently do, it could lead to us having to have a new computer system to deal with complaints if we couldn't produce the data in the way that it was now being asked for. And that's where you start getting the additional costs and resources issues.

I wouldn't necessarily agree that the role for the ombudsman in terms of the complaints-handling authority is at the end of the process, just looking at data. Daniel mentioned the point about the model complaints policy and that the previous ombudsman was involved in designing that and consulting on that. I think it is really important to be regularly reviewing things like the model complaints policy, and actually reviewing to make sure that it's actually working for public authorities, but also for citizens, and being able to review that process to make sure that the routes are right, and also to take account of, if there are particular issues in certain sectors, how those issues may be resolved. Actually, it is a really good opportunity to look at where there may be good practice shared between sectors. So, if one sector is doing particularly well, there can be lessons learned to be drawn upon and taken forward by another sector.

The other thing that I would say is that I actually feel that—Citizens Advice feel that—consistency within sectors is really important. So, within a certain type of public authority, we would like to see as much consistency in complaints as possible, so citizens understand how to make a complaint, and that is very clear.

Could I just bring Janet in at this point? Janet.

A quick question: currently, do either one of you believe that we have a consistent complaints policy in all public bodies across Wales? I've done some work on this, but also the feedback I get from my own constituents—. It's a minefield out there, and that's why they end up coming to see us, because they're completely bogged down by the different processes used in terms of complaints.

I don't think it is consistent across Wales in all public bodies. I think local councils tend, because we have a more direct, democratic accountability through councillors, to be more open and transparent and accountable in relation to complaints. But, you know, that's my personal belief.

I'm not sure of all the differences in terms of health, social landlords and so on, but, across the 22 authorities, 21 operate the model policy in terms of two-stage, so an informal and then a more formal stage. Obviously, Cardiff have an 'investigate once, investigate well' approach. Broadly, the systems are very similar. There may be slight differences in terms of timescales, so for example the deadline for which an authority must respond to a stage 1 complaint might be different by a couple of days across authorities. But broadly they're similar and adopt similar principles in terms of accepting oral complaints and so on. And I think we mentioned in our written evidence that there's been an improvement over recent years and recognise that there's always scope for more improvement, but there has been an improvement in terms of early resolution of complaints, which means that complaints are dealt with more speedily and readily—

In some public bodies.

In some public bodies, but I'm talking from a local authority perspective. So, I'm not sure how health or social landlords operate, but broadly across local authorities, the model policy has brought much more consistency than there was before.

Okay. Bethan.

In terms of general improvement, the model policy brought about more consistency and took out some bureaucracy in the system. So, before the model policy in 2010-11, some authorities certainly had three-stage complaints processes rather than just two as they currently are. And the model policy and the ombudsman's work has encouraged much more early resolution generally. So, if a council gets a complaint, they're encouraged to obviously deal with it properly as quickly as possible. I think what we've seen as well—it's probably a trend over recent years—is more early resolution of complaints that have been escalated to the ombudsman. So, they've theoretically been through the local authority's complaints processes, but a complainant is still concerned, doesn't feel that the complaint's been dealt with properly, goes to the ombudsman's office, and his office will investigate it initially and suggest to the council, 'Well, there is an issue here that you need to look at.' So, a large proportion of complaints that are going to the ombudsman have been referred back to authorities and then been settled on a voluntary early-settlement basis. So, the data does suggest that, over the last five to 10 years, more complaints are being settled on a voluntary early-resolution basis. So, in theory, that would mean the ombudsman's office wouldn't have to invest resources and capacity in following up a formal complaint.

Okay. We have to move on.

That's fine, yes. I just wondered if you wanted me to ask the tribunal one, but I don't have to.

No, that's fine. Okay, we need to move on to financial matters. We haven't got a great deal of time left. Siân Gwenllian.

Thank you. I think this is an important aspect of the Bill, as you've noted, and I can see from your written evidence that the WLGA has some concerns about the impact assessment. Can you just clarify what those are, in particular in terms of the uncertainty around the savings and the costs?

Yes. I think it's important to recognise that it's difficult, with a piece of legislation like this, to accurately assess the likely financial impact, because this Bill is not just talking about changing processes around complaints and the bureaucracy, so to speak, around complaints, but also it seeks to improve culture within public bodies as well, and also it seeks to change, potentially, the behaviour of the public. We've already discussed oral complaints and the potential risk for opening the floodgates with those. So, it's difficult to estimate what the impact in terms of the number of complaints, the types of complaints coming forward might be as a result of this. There's always a little bit of estimation within this.

Likewise, we don't necessarily know what new bodies might do as a result of this legislation—for example, the standards authority. We've mentioned that they, potentially, could decide to introduce brand-new guidance, new requirements for local authorities or local health boards and so on, new data collection and reporting requirements. Some of it may—and I note in the regulatory impact assessment, as well, that it references IT systems. So, obviously, if public bodies need to invest in changing IT systems, there could be significant cost in that. There would be staff impact in terms of training and so on. So, there are a lot of uncertainties in the regulatory impact assessment. As I say, we recognise that it's not an exact science when you're putting an RIA together for a Bill of this nature, but there are—

Do you think it should be spelling that out more than it is? It's not actually spelling out that there's a lot of uncertainty around this.

Possibly, and I think the auditor general highlighted that in his evidence as well. One of the issues that, perhaps, could be clarified in the regulatory impact assessment—the financial assessment—is the level of indirect costs, I think, that are described on public bodies more broadly. It's just a broad global figure across the, I think, 66 potential public bodies that would be affected, and it's just a broad global figure. Whereas, in all likelihood, it's not going to be split equally across the 66, because different bodies, different sectors, perhaps, have further to go to come up to a more consistent standard. There are likely to be differential impacts, financially, on different sectors, so I think that could possibly be strengthened.

And do you also think that the figure of £2.6 million cost avoidance over five years is ambitious?

Yes, I'd caveat it with 'potentially'. It's a case of: will oral complaints bring many, many more complaints coming forward? It depends on the complexity of those cases. It depends on whether the complaints can be upheld and are worth investigating. As I said, it depends also on how well public bodies respond to any of those complaints, if they're being transferred from the ombudsman to public bodies. So, if there isn't a general improvement across the board in terms of dealing with complaints, those complaints will go back into the ombudsman's office anyway. So, it's an assumption that all organisations will continue to improve, dealing with early resolution, as I mentioned earlier.

So, does there need to be more work done on the financial implications, given the situation in local authorities, with collapsing budgets?

Yes. It's all about proportionality, and the sort of global figures that the regulatory impact assessment is talking about are not significant in the grand scheme of things. They're potentially significant if they fall on one or two individual organisations, rather than across the 66. So, I think it would be useful—and given the ombudsman's office's understanding and awareness of where different authorities are at or different health sectors are at in terms of how far they've got to go, it may be that a larger proportion of the overall costs fall on one sector. It could be social landlords, it could be local authorities. So, I think more work could be done on actually trying to work out where the burden will lie. And you're right: all organisations, but authorities in particular, are concerned about the impact on budgets generally, the impact on corporate resources in particular. A lot of authorities have taken out some of the corporate centre where complaints teams generally tend to reside. So, potentially, in future, councils will struggle to deal with the complaints that come forward, because, with austerity, reducing availability, potentially the reducing quality of services, more complaints might come forward than currently are at the moment.

Therefore, in terms of priority, how high a priority is it to extend the powers of the ombudsman?

I think—

Given the financial implications.

Yes, given the financial implications. But I think it goes back to the whole issue around the whole point of complaints in the first place in that organisations should see them as part of the improvement process. Sometimes, authorities get it wrong, they hold their hands up and it's a quick fix; it's a relatively small issue. Sometimes, it points to a wider systemic issue within an organisation, across a service department, perhaps. I think it's important to recognise that we should collectively, as a public sector in Wales, invest in handling complaints and dealing with them properly, and I think the ombudsman has a role in that. We were talking about it earlier: our concern really is just that any new powers are managed proportionately and that there is due consideration for the organisations that the ombudsman works with. Historically, there has been a constructive relationship, but we wouldn't want this piece of legislation to see growing bureaucracy within the ombudsman's office, for obvious reasons—for cost et cetera—but also on public bodies like local authorities.

Okay, thanks for that. Rhianon.

In regard to the financial assessment that the ombudsman provided to us at the last meeting that I attended, he stated that there is potential growth, he thinks, in regard to the costs of dealing with an oral complaint. Do you have any perspective on this further than what you've already outlined?

In terms of additional costs with oral complaints? Yes, I think, inevitably, oral complaints are more costly to manage because you have to receive a phone call; a person may not be entirely clear initially; maybe you have to have a conversation. Whereas, when you receive an online complaint via a form, a number of fields are filled out and you can read it within a number of minutes. With oral complaints, members of the public like to expand on issues, raise other concerns—you know, 'Whilst I'm on, can I mention this?', so naturally conversations take longer than just reading an online submission or a written submission. So, inevitably costs around handling an oral complaint compared to a written complaint are much higher.

So, in regard to the overall envelope that could be being faced, do you feel that sufficient analysis is there in terms of how much this could be costing?

I think the estimation in the RIA—I think it's around 25 complaints a year that will be handled orally by the ombudsman's office alone—perhaps is somewhat ambitious. I think it suggests that most of the oral complaints received will be attempted to be funnelled through the traditional routes of online or written. So, I think, if I've read it right, 25 oral complaints over the course of a year is quite low, given that oral complaints tend to be a significant proportion of council complaints. Chair, you mentioned whether we had figures. Not all authorities do record how complaints come in, but, of those that do, it ranges from about 12 per cent to 40 per cent of complaints are either oral or made face to face. 

Okay. Mick.

A quick question: presumably then, on everything you've said on cost, where there's a need to investigate a private health service provider—it could apply to local government, could apply to the NHS—that cost shouldn't be borne by the public sector; it should be borne as a matter of course by the private body. Is that something you'd agree with?

Yes, generally, I think so. Obviously, we aren't involved in private healthcare, but, as a point of principle—

Social services might have elements that go over in terms of care packages to the provider. There may be elements there.

In terms of a reimbursement of costs of the investigation, I think that's possibly reasonable.

So, that would be an area of the Act that you'd be happy to see amended.

I think so, yes. I'll consult with colleagues in social services—

Perhaps you could include that in your further written submission. Jenny.

Ideally, we wouldn't be getting any complaints going to the public services ombudsman unless they were cross-cutting. So, we've already heard from Cardiff that they've eliminated a second tier of the complaints procedures. Could the WLGA just explain how far other local authorities are rationalising the way they handle complaints—and, obviously, in the first instance, dealing with them face to face, at the moment when the irritation occurs?

Yes. As I say, all authorities accept and welcome oral complaints, and the proportion varies. With oral complaints, it's usually easier to deal with issues there and then because if the complaint—

Sure. By the time it's got to writing, I agree it's got beyond that.

Yes, and you can possibly nip some issues in the bud and reduce tension. Certainly, if trained officers are dealing with people and reassuring people then that does help.

It's always about effective resolution. If the complainant is satisfied that the matter's been dealt with and appropriate redress had been provided, whether it's just an apology or a letter—the ombudsman occasionally recommends boxes of chocolates and flowers or whatever—but I think it's important then, though, if there are wider issues that point to systemic issues or policy matters then they are taken forward.

Sure. But I suppose my query is: how far have we got with ensuring that the model complaints procedure is the standard complaints method of operating?

In terms of the standard across the 22, as I say, it has brought in consistency. Cardiff is the only one that has a slightly different approach. I think Liz's point about it being reconsidered, revised, is a good suggestion. It's been around for six or seven years now, and things have changed. Social media, obviously, has expanded significantly in that period, so it's probably an opportune time—irrespective of whether this Bill was coming through or not, it would be an opportune time to look at the model and policy.

Okay. Can I thank you all very much for coming along to give evidence to the committee today? You will be sent a transcript to check for factual accuracy. Thank you very much indeed.

Thank you.

Okay. The committee will take a two-minute break and come straight back.

Okay, I welcome committee back for our tenth evidence session with regard to the Public Services Ombudsman (Wales) Bill. I'm very pleased to welcome Mark Drakeford, Cabinet Secretary for Finance, David Richards, director of governance for the Welsh Government, and Nick Howard, who is a lawyer with the Welsh Government. Welcome to you all. Perhaps we might move straight to questions if that's satisfactory, Cabinet Secretary.

Perhaps I might begin, then. In terms of Part 3, sections 4 and 5, the own-initiative investigations, Welsh Government is reserving its position on this particular provision for own-initiative investigations. Might you expand upon the reasons for that, Cabinet Secretary?

Yes, thank you, Chair. Can I say that I think, from a Welsh Government perspective, it is not that we have an objection of principle to the idea of own-initiative inquiries, it's just that I think we need to be satisfied at the end of the process that the way in which the ombudsman is to be enabled to conduct own-initiative inquiries is proportionate and that we have thought about some of the potential unintended consequences if it isn't done in the right way.

I want to acknowledge the changes that the Finance Committee made between the draft Bill and the final Bill that is currently in front of you, because they themselves have done two things. They have put some parameters around own-initiative inquiries on the face of the Bill, so it is not a sort of right to roam in which the ombudsman can go wherever he likes entirely on his own decision. And the Finance Committee has put in a provision that would allow Welsh Ministers to bring affirmative regulations to the floor of the Assembly to amend those criteria in the future if the Bill wasn't working out in the way that was anticipated. So, I think there are some safeguards in there already. I think the question, which I look forward to reading your views on in your report, is whether they are sufficient.

I think, subject to one thing, which I'll say in a moment, at the moment, the Welsh Government's view would probably be that, with the safeguards that are now there, we'd be prepared to see how this works out, knowing that we have the fallback of the regulation-making power to come back to the Assembly if it turns out that it's not working in the way that it was intended. The one way in which we think the Bill should be strengthened is, as I'm reading it at the moment, if the ombudsman were to decide to conduct an own-initiative inquiry in an area where another regulator already has responsibility, it is up to the ombudsman to decide whether or not to let that regulator know. I don't think that's sufficient, myself. I think that if the ombudsman were to decide to institute an own-initiative inquiry in an area where, for example, Care and Social Services Inspectorate Wales already had the responsibility as the regulator, then, before embarking on the own-initiative inquiry, the Bill should say that the ombudsman must inform and consult with that regulator. Because it may be that CSSIW could tell the ombudsman that a piece of work was already going on, or that there was something that the ombudsman wasn't aware of. So, I think to make sure that own-initiative powers are genuinely used where they are necessary, and we don't just end up with another layer of complexity in what is already a complex set of circumstances, it would be right for the Bill to be clear that that's something that the ombudsman must do, not do if he or she thinks it would be useful.

Thank you very much for that, Cabinet Secretary. Janet, is it on this particular point? Yes.

Good morning. I was just wondering: what about public bodies that perhaps haven't got a strong regulatory body? Would he not be able to then conduct an own-initiative—?

I think that's a fair point to make. The point I was making was if there is a regulator—

Okay, yes.

I wouldn't want that provision to stop the ombudsman going into areas where there wasn't one. It's that if you're going to look at something in the education field, where clearly there is a regulator, then I think the ombudsman should have made sure that they've informed Estyn, and consulted with Estyn, before launching an own-initiative inquiry, so that the ombudsman is fully informed.

Okay. And can I just finally—? A little one: who will have the final veto, then—the ombudsman, or the regulatory body?

The ombudsman. It's a power to inform and consult, not to hand the decision making over to the other regulator. I think you have to leave it in the hands of the ombudsman to make that final decision.

Okay. And Siân Gwenllian on this point again, or—.

Okay. And Rhianon Passmore.

Thank you, Chair. With regard to unintended consequences, you've mentioned, in terms of the potential of strengthening the Bill with regard to communication to regulatory bodies et cetera, et cetera, and we've also talked about the potential for duplication, so that's obviously something for this committee to consider moving forward. Would you have any comment further to your comments around the Assembly's role here, moving forward, as to who polices the ombudsman? 

Well, my own position is close to what Siân Gwenllian just set out. I think it is for the Assembly, for the legislature, to have oversight of the ombudsman, and in the narrow point that we were just discussing, I see the dilemma if it's only the Government that is able to bring forward proposals, even though the legislature has the final say on whether to take those through or not, but I think I would be quite clear, really, that the ombudsman cannot be answerable to Government, because Government is itself scrutinised by the ombudsman, so it must be the legislature. 

Okay. So, with regard to the safeguards within the Bill around that particular area, do you believe that the own-initiative powers are sufficiently within the mandate of the ombudsman so that they are safeguarded with regard to—. For instance, let's be blunt about this, if there were to be an ombudsman that would decide to go off-piste and decide, for whatever reason, even though we know that this is a very, very important role and very carefully considered, moving forward—do you believe that those safeguards are strong enough in the Bill so that that couldn't happen? 

Well, I'm absolutely open to suggestions that the committee may have to make sure that the parameters within which the ombudsman must operate are the right ones, and I agree with what Siân said earlier: that it is better to act now to put those in the best order we can, rather than relying on having to put them right if they go wrong. But the ability to put them right is there, and we've all of us, I'm sure, had examples where the way things turned out in practice wasn't the way that we anticipated when we set something off.

If you come to the conclusion that there is more that can be done to strengthen those parameters—absolutely, because, from a Government's point of view, we want to get those in the right place. Because I do have—in the background, this is, Chair. My anxieties about own-initiative inquiries are about making sure that they are used proportionately, making sure that they are not used in ways that create complexity in an already complex set of circumstances, that they are not vulnerable to an accusation that the ombudsman is somehow being created as a super-regulator. The ombudsman isn't a regulator, and I don't think the Bill should try and put him in a position of being at the head of a pyramid of regulation.

I've seen in some other evidence that you've had, and I think we would need, at least, to be alert to this in practice, that if you have one player in the field who has this own-initiative ability, it might play into the set of circumstances that the Mid Staffordshire inquiry uncovered, where everybody thought that somebody else was going to be taking action. So, there were regulators in the field there who didn't act in Mid Staffs, and they didn't act because they thought, 'Oh, somebody else will be doing that.' If you think that the ombudsman is in a position to do things that you can't because they have these own-initiative powers—you wouldn't have wanted to create a position where other regulators don't act in the way that they are required to act, because they think the ombudsman is now being given some sort of long-stop power that we can all rely on.

I take those points on board, but with regard to the fact that this, in Northern Ireland, is bedding in and is being assessed, and in Scotland they don't have own-initiative authority, this would be relatively new for us—it would be very new for us here in Wales. Do you believe that—I think that Mid Staffs is an interesting example—there would need to be, from your perspective, additional criteria laid within the Bill to strengthen the safeguards on the ombudsman's power?

I think the position we are in at the moment is that if the committee were to conclude that the Bill, as currently drafted, has sufficient safeguards, we wouldn't object to that conclusion. And if you think that there are additional safeguards that would make the Bill better, then we'd be very interested to hear about that as well. But I think we are persuaded enough by the general proposition that the ombudsman is the one player in the field who sees right across the field, and that sometimes there may be things that emerge where the current suite of powers does not allow the ombudsman to follow through on an issue, from that perspective of having overall scope to see how citizens in Wales are being treated by the services they rely on. And in a relatively confined set of circumstances, I don't think it's unfair to say that the ombudsman should be able to act on behalf of the citizen in that way. 

So, in terms of those relatively confined circumstances, my question still remains. From our committee's perspective, do you feel that those safeguards within the current Bill are satisfactory? 

Well, I'll just say what I said again, Chair: because there is the fallback power to allow Ministers to come forward and amend those criteria if they turn out not to be satisfactory, if you were to conclude that they're good enough for the Bill to move ahead, we will not seek to go beyond that. But I am genuinely interested—given everything that you will have heard, if you conclude that the Bill needs further strengthening in this way, we'd be very open to that as well. 

Thank you very much for that. Jenny—on these matters. 

I'm just wanting to ensure that a budgetary constraint ought to be one of the ways in which we discipline the public service ombudsman to not have the right to roam, because if they want to create the resources to investigate own initiatives of cross-cutting issues, they're going to have to be just more efficient at ensuring that most complaints have been fully resolved in the primary organisation that's being complained about. So, how much do you think that's going to be an effective way of ensuring that they're not taking on more than they can afford to do?  

Well, Chair, I have a very real interest, obviously, in this Bill not creating costs beyond the limit that the RIA sets out, because every extra £1 that is taken by the ombudsman is £1 less to spend on the public services that the ombudsman investigates. So, there is a real important balance here. I think what the ombudsman would say, given the basis of the explanatory memorandum and so on, is that, given the power to carry out own-initiative inquiries, the product of that will be an improvement in the system, and improving the system will reduce costs in the—. He'll have to pay for the own-initiative inquiry, but the product of the inquiry will be an improvement in the system overall, and that will mean that costs will be avoided. It's an interesting idea as to whether or not you think that placing a monetary ceiling on the proportion of his resources that he could devote to own-initiative inquiries in any 12 months will be a further safeguard in the Bill. 

Okay, thanks for that. We'll move on, then, to sections 8 and 9 under Part 3 and complaints, and to Siân Gwenllian. 

Well, because we are still looking to see the conclusions that the committee itself will come to in this area. These are not proposals that the Government is bringing forward and the Government will place considerable reliance on the scrutiny work that the committee itself is carrying out on these aspects of the Bill. So, as you will know, Chair, from that letter, there were two areas of the Bill where the Government is broadly happy to indicate our support already: in oral complaints and in the ability to investigate private healthcare components of a pathway involving public and private healthcare. There are some details on both of those that we might want to mention to you. In the other two areas, own-initiative inquiries and the ability to set standards, we were more open minded on them, and looking forward to hearing what the committee has to say on them both.

In relation to the standards-setting issue, the matter, I think, that causes some hesitation in being completely committed to it is that my reading of the Bill is that, potentially, it could put the ombudsman in a position of being able to override decisions that have been made by the legislature here, and I don't think that that is the right place for the ombudsman to be. I'll explain why I think that risk may be there, and it's to explore, I think. 

So, the National Assembly for Wales legislated for a statutory complaints process in relation to the health service, and in Wales the health service has chosen to translate the principles that the National Assembly set down into the Putting Things Right policy, which it operates throughout Wales. I think you could read the Bill as allowing the ombudsman to set out a set of principles that contradicted the principles that the National Assembly for Wales had legislated for, and then, having set out the principles, the Bill allows the ombudsman to turn those principles into a complaints-handling procedure for, in this case, the health service, and then to require the health service to adopt the complaints-handling procedure that he has developed.

My anxiety is that we may need to tighten the Bill up a bit to make it clear that, if the ombudsman decides to issue principles and to develop a complaints-handling process, it cannot be a process that contradicts the requirements of the regulations that the National Assembly has set down. So, I don't want to create a tension between what the Assembly has decided and what the ombudsman decides, and to give the ombudsman the trump card in that. As the Bill is currently drafted, I think it is open to that potential. I'm sure it wasn't—. I can't imagine that that's what the Finance Committee intended, but I think it needs a bit of tightening up to make sure that there are those parameters put around the ombudsman's powers in Part 4 that he cannot exercise them in a way that would override decisions that the National Assembly had already made. 

Nick, my understanding was that the current position is that if someone complains orally to the ombudsman, the ombudsman cannot act on that unless it is followed up by something—

I think he does have discretion. The current legislation says that complaints have to be in writing, but there is some element of discretion for the ombudsman to accept them. The Bill doesn't say that he has to accept oral complaints, but it gives him a general discretion via guidance to decide in what form he's going to accept them.

Yes, so it's there. He could feasibly, without this new Bill, accept and deal with oral complaints. It's something that we need to just clarify. It's not a big deal, but—

I think we've heard, haven't we, that there would have to be something in writing, so the ombudsman would have to create a record as such, but could accept a complaint only in oral form. I think that's our understanding. Is that—? I'm looking at our lawyers as well here—is that our understanding?

Sorry, Chair—I was explaining a point to another member of the committee. In relation to oral complaints, my understanding is that, with the new procedure laid down for this Bill, it just gives the ombudsman the discretion to create guidance to accept more than just complaints in writing. So, it doesn't actually say in the Bill that it will include oral complaints. An ombudsman could be minded to bring out guidance that didn't accept oral complaints.

But nonetheless, the guidance might enable him to accept oral complaints—

Along with other types of complaints as well. I think the reason why it's been left to guidance is that flexibility with technological advances, and not having to come back and re-legislate—

To futureproof the legislation.

So, what's the position now with the legislation?

Sorry, Chair, but I was under the impression now, from evidence taken, that currently, if somebody was to phone in, there is a caseworker who will liaise with that person and take a statement in writing now and ask them to—. Have I misunderstood that?

I think the—

Sorry, Chair, but the way I've heard the ombudsman describe it is this: at the moment, he has the discretion. The law says that complaints must be in writing. Exceptionally, he has the discretion to accept them not in writing. What the Bill would do would be to stop making it an exception; it would make it part of the normal way in which the ombudsman can go about their business. I think that, from the Government's point of view, what we are keen to avoid, and I'm sure what members of the committee would be keen to avoid, is that people who struggle to—

Absolutely.

—put their thoughts on paper should not be disadvantaged in the system. If those people find it easier to make a complaint by making it orally, provided that there are the safeguards that your legal adviser has just explained about having to have a record made of those things, then we think it's a sensible way of making sure that some people are not disadvantaged in the system, provided it's done in that way, and we can find ways of avoiding the unintended consequences, which Siân Gwenllian said, of somehow making oral complaints the first resort, and therefore opening floodgates to all sorts of people making frivolous complaints or vexatious complaints in that way. I think those things are important to guard against. But the prize is to make sure that people who otherwise might struggle to have their voices heard can do it this way, and I think that's something we would want to see happen.

Okay. Siân, are you content?

I think I've finished on that now, thank you.

Rhianon.

Chair, if I could follow that up. With regard to what has just been said about, not the silence in the Bill, but the fact that it's not really articulated, obviously, the prize is there and very much wanted in terms of being able to access those who are currently not accessing the complaints system effectively, in my view. But, in regard to the opposite of that prize, which is opening, potentially, floodgates in regard to a culture of complaining, which is not what we're looking to do, as we want to make things more transparent and easier for people, is that sufficiently strong in the Bill to militate against that, just because it's not being articulated?

Well, the Bill does place parameters around this, in the sense of having to create a record and so on. Again, you will have heard evidence from others. I don't believe the Government has objections to this part of the Bill. The ombudsman must verify an oral complaint, and must check that the person making the complaint is someone they can deal with. They have to make sure that the complaint has been properly considered by others; we don't want the ombudsman to be the first resort place that people go to, and I think the Bill is clear that, with an oral complaint, if someone hasn't gone through the other procedures they should have gone through, they'll be directed to those too. So, there are safeguards in the Bill.

From the Government's point of view, I want to say that we recognise the concerns that some members of the committee have expressed. They are proper things to test during this stage of the legislative process, and I'm sure you will be hearing from the Member in charge of the Bill. Again, you will want to be putting some of these points to him.

Thank you.

Before we move on to other matters, Cabinet Secretary, in terms of Part 3, section 10, 'Matters which may be investigated', there will be the opportunity for the ombudsman to investigate the private healthcare element where there's been a public-private pathway in terms of the healthcare provided. Are you satisfied in terms of this provision and the possible additional costs to the public purse, or are those matters that you have concerns about?

I do have some concerns, Chair, which I hope the committee will be able to think about. They're only these.

As I said, the Government has no difficulty with the intention of this part of the Bill, which is that the ombudsman should be able to pursue the whole of the pathway that a patient has experienced. My understanding is, though, that if the ombudsman has to investigate the private component of that pathway, the only circumstances in which the costs of doing so can be recovered from the private provider are if the private provider can be shown to have acted in a way that is demonstrably unreasonable, in refusing to engage with a complaint, and so on.

So, the bar for recovering costs has been placed pretty high. It seems to me it would be pretty unusual—I think that's what the private provider said to you, that they found it very difficult to imagine circumstances in which one of their members would act in such a way. So, in a sense, the Bill is constructed in a way that the costs falling to the ombudsman of investigating the actions of the private provider will all be picked up by the public purse. And I think you might want to consider whether you think that is the right place for the bar to be placed. At the moment, it's right at the top, I think, and I'm not certain that the case is fully made as to why the public should always be picking up the full costs of investigating a difficulty that may have occurred by a private provider. Chair, you may want to come on to the cost of the Bill more generally, but it's one of the missing things in the RIA, which I'll mention later.

Yes, we will come on to the financial implications of the Bill generally, Cabinet Secretary. Before we do, Rhianon Passmore has some questions on investigation of complaints relating to other persons and social care and palliative care.

Thank you, Chair. In the regard of keeping the social palliative care regime separate to listed authorities, and following on from what you said in terms of the patient pathway, obviously, social care, in terms of commissioning, is very much more out there in terms of that platform, have you got any specific views on why the Bill does that?

From a Welsh Government point of view, we might say that we think there's a missed opportunity in the Bill to create a single system rather than to retain two separate systems. I've seen what the Member in charge of the Bill has said to you, that it would have made it a different sort of Bill and a much more complex Bill if they had attempted to bring the two things together in one, and that the Bill simply replicates the current circumstances. That's the Bill that the Finance Committee has chosen to put before you. I think we might say that it's a missed opportunity, but maybe the opportunity may just have been missed; it may just be too late to go back over that.

When I read it, I did think to myself—maybe I shouldn't be saying—that if I'd been a Government Minister bringing forward the Bill and had said to you, 'Oh, it was all just a bit too difficult and we thought that we wouldn't bother', that I might have been in a bit of trouble in front of the committee, were I to make that case. But, the Finance Committee has to operate within the resources it has available to it and tackle the things that it thinks it most needs to tackle. What they've said to you is they've constructed the Bill in a way that replicates the current process and had they tried to go beyond it and to bring the two together, it would have resulted in a Bill that was a good deal more complex and a good deal more resource intensive from their point of view.

Chair, I think, in that regard, it could be argued that it would create a two-tier system and shove a hole in the whole patient pathway ideology. So, I'll say no more. Thank you.

Okay, before we go on to financial matters generally, as I mentioned earlier, there are one or two matters that Bethan wanted to raise regarding previous matters.

Yes, just because Siân has touched on the complaints-handling procedures, and your view with regard to the Putting Things Right regulations and perhaps not feeling that it was clear enough in relation to other Assembly laws. I just wondered whether—. With regard to section 40, the promotion of best practice, it says if:

'the duty is inconsistent with any other enactment.'

Would that suffice in relation to any potential crossover, that they would have to consider that before—? I don't know. Obviously, we can ask the same question to Simon Thomas, but if you've not read it in the way that it would potentially allow for the ombudsman to come up with a new set of health standards—you know, we wouldn't really want that. That’s what I was trying to consult the legal adviser on earlier.

Thank you. I'll ask Nick if he wants to respond to that point immediately. If we need to think about it and look at it, then I'll make sure we get a note to the committee to respond to Bethan's point before you have your session with Simon. But, I'll see whether Nick wants to respond to it immediately first.

Thank you. I suppose there are two points really. The first one is that procedures like Putting Things Right aren't set out in black-letter law. They're not in the regulations, they're kind of made in compliance with them. So, if the ombudsman, hypothetically, were to publish a model complaints procedure that contradicted Putting Things Right, he might not actually necessarily be inconsistent with the enactment, but there would be a clash with the process. So, that's one point.

I suppose the second point is that what the regulations that govern Putting Things Right do is they set some parameters, really, for complaints procedures in the health service. And if the ombudsman did publish something inconsistent with that, I suppose what section 40 does is it puts the onus on the listed authority to look at it and work out where the inconsistency is, whereas I think what we'd probably rather is that it just wasn't inconsistent in the first place. I suppose it could indirectly operate that way, though.

I think our point would be that it would be better to put this beyond doubt in the Bill while it's in front of the Assembly. Because I don't imagine that the ombudsman ever would intentionally want to cut across what the Assembly itself had decided, but the potential may be there, and we could, in the amending stages of the Bill, just put it beyond any doubt. I think that's what we would rather see.

If you do wish to provide a note, having given further consideration to those matters, Cabinet Secretary, obviously that would be useful for the committee.

Yes. Thank you, Chair. Could I just add to that? I probably should have said it earlier. In relation to oral complaints, there are some technical issues with the way that the Bill is constructed that we think the committee might want to at least be aware of—our technical concerns. They're not about the policy intention; they're just about whether the Bill manages to deliver it entirely. So, maybe I could set those out in the same note.

That would be very useful.

They are of a technical nature.

We're very grateful for that, Cabinet Secretary. We will now move on to financial matters generally and Siân Gwenllian.

Chair, I'll run through them in English, I'm afraid. The first issue is the issue of the way that the costs and benefits to private healthcare providers are rehearsed in the regulatory impact assessment. I think our feeling is it's not adequately done. The Finance Committee, in its report on the regulatory impact assessments of Government Bills, made a point of saying that the regulatory impact assessments needed to do more to make sure that costs and benefits to private businesses are fully reflected in the RIAs of Government Bills, and we think that this needs a bit of tidying up and more attention in this RIA. That would be particularly the case, I think, if the committee were to feel that the bar, in relation to costs, ought to be altered from where it currently is. Because, obviously, that potentially could have greater costs being incurred by the private provider, and therefore the RIA would need to investigate that more thoroughly still.

There is a technical point which we think needs to be put right in the RIA, and that is in relation to its consistency with the Treasury Green Book, in the way that costs and cost savings are discounted. I'm well out of my comfort zone now in understanding exactly how this is, but the note that I have is that the Green Book is clear that general price inflation should not be included in an economic appraisal, and costs should be presented in real terms and in constant prices. In the RIA, general inflation has not been included in the calculations, but in paragraphs 11.29 and 11.30, staff costs have been increased by 1 per cent per annum to reflect rises in the cost of living. That must, therefore, be rooted in an assumption that salary increases will be 1 per cent higher than general price inflation. That would not have been true for a number of years past, and therefore we think that the treatment of that matter in the RIA isn't consistent with Green Book principles, and it would be better if it were to be put right.

Beyond those specific points, my main concern, as the finance Minister, has to be that the calculation of costs incurred and costs saved is interrogated and assessed for accuracy and reliability. From my perspective, Chair, I thought it was very good news when I learnt that the committee had been able to secure some specialist advice in looking at the financial aspects of the Bill, given that the Finance Committee itself would normally undertake that responsibility, and clearly they can't in this case. So, it was, I thought, very good news that you'd been able to secure that advice.

So, here are some of the things, when I read the RIA, that occurred to me, and which you may be willing to explore with that advice. The RIA says that the average cost of a case taken up or referred to the ombudsman is £501. The average costs the RIA assumes an oral complaint will require is £1,640. Now, there may be an explanation that you would secure that would explain why it would take more than three times the amount to have oral complaints taken on by the ombudsman, compared to complaints that come to the ombudsman in other ways, but it wasn't immediately clear to me from the RIA why there was such a disparity. The average cost of an investigation—remembering that not all complaints that go to the ombudsman are investigated by the ombudsman—has quite a wide range in the RIA. It could be between £9,100 and £13,700 to investigate a complaint. I suppose I had a question about why the range was quite that broad, and how those costs in the RIA compare to the actual costs that the ombudsman incurs in carrying out investigations on his current case load. I didn't find that figure. It may be there, so I apologise if I just missed it, but I couldn't find myself the figure in the RIA that said, 'This is what the current costs are', to help me to understand why you had that range of potential costs in the RIA in relation to the future.

There are a set of cost assumptions in the RIA, which I wonder whether the committee will be prepared to scrutinise and probe. It says that it will cost £5,000 for what are called transition costs for every new member of staff, that every new member of staff costs £1,000 every year in travel and training costs, that every new member of staff costs the ombudsman £5,000 every year in office costs. Maybe all those figures are reasonable, but I think they deserve probing as part of this part of the process. Would the committee, having done that, regard those costs as reasonable? How do they compare with current costs? How do they compare with costs in other similar organisations? Does £5,000 for every new member of staff in office costs represent the marginal costs of taking on a new member of staff? A new member of staff in the room doesn't increase the cost of putting the light on in the room, generally. So, I just think there are just some questions that ought to be explored at this part in the process. 

And then, finally, I think there are some questions I would have wanted to have asked about the way in which the final figure of £200,000 over five years as being the net cost of the legislation—. Would the committee, having had a chance to look at them, be convinced that that is the figure that we should rely on? There are ranges of costs quoted in the RIA, between the projected rise in case loads. The case load of the ombudsman is said to rise between 5 and 12 per cent if the Bill isn't in place. There are reductions in cases as a result of the Bill, where the range is between 1 and 18 per cent. As the Finance Minister, I would be interested to see your conclusions, and I'm just keen that what we haven't got is a figure here in which like for like is not quite being compared; where what we have is a set of costs where what the system would cost if complaints grew at the very top end of the estimate—12 per cent rather than 5 per cent—and costs avoided are being calculated at the very best of that, at 18 per cent rather than 1 per cent. Because if you take the worst assumption in terms of how costs would rise otherwise and the best assumption of how costs could be avoided if the Bill is introduced, then I'm not absolutely sure whether the identical approach is being taken in the way the costs and benefits have been calculated.

Now, you will have the opportunity to ask those questions of the Member in charge, I guess, and he may well be able to explain to you that that's not the way the figures have been derived. There may be mid-way points in both instances, which will be fine, but when I read it I couldn't come away completely confidently that the worst scenario in one instance and the best scenario in the other was being assumed, and that, as a result, you've got costs that are relatively modest: £200,000 over five years. Even that is money not available for public services. But if you took a different set of assumptions, and the costs of the Bill turned out to be significantly more than that, then I think the committee would obviously be taking that into account in coming to your overall assessment of whether the Bill is one you would wish to support. 

I would find it difficult to feel warm towards a Bill that shifted significant sums of money away from public services to the oversight of those services. Now, there is a sum of money that any one of us would have to make a judgment about where the gains involved in the oversight—whether the amount of money involved is proportionate, and you would think, 'Yes, that's worth it.' But there would come a point where gaining a great deal on the oversight of services at the expense of those services, when those services are, as Siân Gwenllian said, already under strain—then, I think there's a judgment call here. At £200,000 over five years, I think that's at one end of a spectrum, but that's why I've made the points to you about making sure that we think that that £200,000 is a figure that we would regard as the most reliable assessment of the underlying assumptions.

And would that be your ceiling?

I don't think I want to tie myself directly to a ceiling. I'm a lot happier with a figure that is at that end of the spectrum than I would be if your conclusions were that, actually, when you investigate and interrogate the assumptions that underlie it, that figure doesn't turn out to be quite like that and turns out to be something at the other end of the spectrum, which is why I think the figures do need that interrogation.

Okay. Thanks very much for that, Cabinet Secretary. As you say, we do have specialist financial advice available to the committee, and we will be exploring these matters in some detail. So, thank you very much for all those points and your evidence in general today. You will be sent a transcript to check for factual accuracy in the usual way. Thank you all very much.

The next item on our agenda is papers to note. We have papers 6 to 16: 6 to 9 relate to the Public Services Ombudsman (Wales) Bill, and papers 10 to 15 are letters relating to the committee's human rights inquiry. Paper 16 is regarding our follow-up work on implementation of the  Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015. Is the committee content to note these papers?

Chair, before we finish, collective correspondence on human rights has been sent out from this committee. Have we, in any of these, approached anyone to come and speak to us in the committee from Westminster?

No. I think we decided previously on a certain approach to the human rights inquiry and we're following what the committee wanted in that respect.

Okay.

Absolutely. We will certainly do that. We will do that as well as considering the evidence that we've received today on the Public Services Ombudsman (Wales) Bill in private session, and we will now move into private session.