Public Services Ombudsman (Wales) Act 2019

PART 1 — INTRODUCTION

Overview

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• (1) This Part of the Act is an overview of the main provisions of the Act.

• (2) Part 2 provides for the continuation of the role of the Ombudsman.

• (3) Part 3 makes provision for—

• (a) the Ombudsman to investigate listed authorities;

• (b) who can make and refer complaints to the Ombudsman;

• (c) the matters that may be investigated by the Ombudsman;

• (d) the procedures that apply to the Ombudsman's investigations;

• (e) the Ombudsman's powers to deal with obstruction and contempt;

• (f) the Ombudsman to prepare reports of investigations;

• (g) the Ombudsman to issue guidance to listed authorities about good administrative practice;

• (h) listed authorities to compensate persons aggrieved.

• (4) Part 4 makes provision for—

• (a) the Ombudsman to publish a statement of principles about the complaints-handling procedures of listed authorities, and the Assembly procedure that applies to the statement of principles;

• (b) the Ombudsman to publish model complaints-handling procedures for listed authorities;

• (c) requiring a listed authority to comply with a model complaints-handling procedure that applies to the listed authority;

• (d) the Ombudsman to declare that the complaints-handling procedure of a listed authority does not comply with the model complaints-handling procedure;

• (e) the Ombudsman to promote best practice in relation to complaints-handling.

• (5) Part 5 makes provision for—

• (a) the Ombudsman to investigate social care providers , palliative care providers and direct payment service providers;

• (b) who can make and refer complaints to the Ombudsman about social care , palliative care and direct payment services;

• (c) the matters relating to social care, palliative care and direct payment services that may be investigated by the Ombudsman;

• (d) the procedures that apply to the Ombudsman's investigations into social care , palliative care and direct payment services;

• (e) the Ombudsman to prepare reports of investigations into social care , palliative care and direct payment services.

• (6) Part 6 makes supplementary provision for—

• (a) the Ombudsman to work with other ombudsmen and commissioners etc. in relation to investigations;

• (b) the disclosure and protection of information and publications in relation to investigations.

• (7) Part 7 makes miscellaneous provision, including adding the Ombudsman to Schedule 6 to the Welsh Language Standards (No. 2) Regulations 2016 and a requirement for the review of the operation of this Act by the Assembly.

PART 2 — THE PUBLIC SERVICES OMBUDSMAN FOR WALES

The Public Services Ombudsman for Wales

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• (1) The office of the Public Services Ombudsman for Wales or Ombwdsmon Gwasanaethau Cyhoeddus Cymru (in this Act referred to as “the Ombudsman”) is to continue.

• (2) Schedule 1 makes further provision about the Ombudsman.

PART 3 — INVESTIGATIONS

Power of investigation

Power to investigate complaints

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• (1) The Ombudsman may investigate a complaint under this Part in respect of a matter if the complaint has been—

• (a) duly made to the Ombudsman, or

• (b) duly referred to the Ombudsman, and

the matter is one which the Ombudsman is entitled to investigate under sections 11 to 16.

• (2) A complaint is “duly made” to the Ombudsman if (but only if)—

• (a) it is made by a person who is entitled under section 7 to make the complaint to the Ombudsman, and

• (b) the requirements of section 8(1) are met in respect of it.

• (3) A complaint is “duly referred” to the Ombudsman if (but only if)—

• (a) it is referred to the Ombudsman by a listed authority, and

• (b) the requirements of section 9(1) are met in respect of it.

• (4) The Ombudsman may investigate a complaint under this Part in respect of a matter even if the requirements of section 8(1) or (as the case may be) section 9(1)(b), (c) or (d) are not met in respect of the complaint, if—

• (a) the matter is one which the Ombudsman is entitled to investigate under sections 11 to 16, and

• (b) the Ombudsman thinks it reasonable to do so.

• (5) It is for the Ombudsman to decide whether to begin, continue or discontinue an investigation (but see section 8(5)(a) for a restriction on the power to begin an investigation under subsection (1)(a)).

• (6) The Ombudsman may take any action which the Ombudsman thinks may assist in making a decision under subsection (5).

• (7) The Ombudsman may begin or continue an investigation into a complaint even if the complaint, or the referral of the complaint, has been withdrawn (but see section 8(5)(a) for a restriction on the power to begin an investigation under subsection (1)(a)).

Power to investigate on own initiative

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• (1) The Ombudsman may investigate a matter under this Part, which the Ombudsman is entitled to investigate under sections 11 to 16, whether a complaint has been duly made or referred to the Ombudsman or not.

• (2) Before the Ombudsman begins an investigation under this section, the Ombudsman must—

• (a) have regard to the public interest in beginning an investigation,

• (b) have a reasonable suspicion—

• (i) that there is systemic maladministration, or

• (ii) in a case where the matter is one which may be investigated by virtue of section 15(2), that systemic injustice has been sustained as a result of the exercise of professional judgement,

• (c) consult such persons as the Ombudsman considers appropriate (but see section 66 for further duties around consultation), and

• (d) have regard to the criteria for own initiative investigations published under section 5.

• (3) Subject to the other provisions of this section—

• (a) it is for the Ombudsman to decide whether to begin, continue or discontinue an investigation under this section;

• (b) the Ombudsman may take any action the Ombudsman thinks may assist in making a decision under subsection (3)(a).

Criteria for own initiative investigations

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• (1) The Ombudsman must publish criteria to be used in determining whether to begin an investigation under section 4.

• (2) The Ombudsman must lay a draft of the first criteria before the Assembly.

• (3) If, before the end of the 40 day period, the Assembly resolves not to approve the draft criteria, the Ombudsman must not publish the criteria in the form of the draft.

• (4) If no such resolution is made before the end of that period, the Ombudsman must publish the criteria in the form of the draft.

• (5) The 40 day period—

• (a) begins on the day on which the draft is laid before the Assembly, and

• (b) does not include any time during which the Assembly is dissolved or is in recess for more than four days.

• (6) Subsection (3) does not prevent new draft criteria from being laid before the Assembly.

• (7) Before laying the draft criteria before the Assembly, the Ombudsman must consult—

• (a) the Welsh Ministers,

• (b) the listed authorities in Schedule 3, and

• (c) such other persons as the Ombudsman thinks appropriate.

• (8) The Ombudsman must, in preparing the draft criteria to be laid before the Assembly, have regard to any representations made during the consultation mentioned in subsection (7).

• (9) The criteria come into force when they are published by the Ombudsman.

• (10) The Ombudsman may from time to time revise and re-publish the criteria.

• (11) If, in the opinion of the Ombudsman, revisions made under subsection (10) effect any material change to the criteria, the Ombudsman must lay a draft of those revisions before the Assembly.

• (12) Subsections (3) to (9) apply to draft revisions laid before the Assembly under subsection (11) as they apply to the first criteria.

• (13) The Welsh Ministers may by regulations amend the criteria published by the Ombudsman under this section by adding criteria, removing criteria or changing the criteria.

• (14) Where the Welsh Ministers make regulations under subsection (13), the Ombudsman must publish the criteria, as amended by the regulations, on the day the regulations come into force.

• (15) Before making regulations under subsection (13), the Welsh Ministers must consult—

• (a) the Ombudsman,

• (b) the listed authorities in Schedule 3, and

• (c) such other persons as the Welsh Ministers think appropriate.

• (16) No regulations are to be made under subsection (13) unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Assembly.

Alternative resolution of matters

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• (1) The Ombudsman may take any action the Ombudsman thinks appropriate with a view to resolving a matter which the Ombudsman has power to investigate under this Part.

• (2) The Ombudsman may take action under this section in addition to or instead of conducting an investigation.

• (3) Any action under this section must be taken in private.

Complaints

Who can complain

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• (1) The persons entitled to make a complaint to the Ombudsman under this Part are—

• (a) a member of the public (in this Part referred to as “the person aggrieved”) who claims or claimed to have sustained injustice or hardship in consequence of a matter which the Ombudsman is entitled to investigate under sections 11 to 16,

• (b) a person authorised in writing by the person aggrieved to act on that person's behalf, or

• (c) if the person aggrieved is not capable of authorising such a person (for example because the person aggrieved has died), a person who appears to the Ombudsman to be appropriate to act on behalf of the person aggrieved.

• (2) “Member of the public” means any person other than a listed authority acting in its capacity as such.

• (3) It is for the Ombudsman to determine any question of whether a person is entitled under this section to make a complaint to the Ombudsman.

Requirements: complaints made to the Ombudsman

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• (1) The requirements mentioned in section 3(2)(b) are that the complaint must—

• (a) be in a form specified by the Ombudsman in guidance;

• (b) contain such information as specified by the Ombudsman in guidance;

• (c) be made to the Ombudsman before the end of the period of one year starting on the day on which the person aggrieved first had notice of the matter alleged in the complaint.

• (2) The Ombudsman must publish the guidance referred to in subsection (1).

• (3) It is for the Ombudsman to determine any question of whether the requirements of subsection (1) are met in respect of a complaint.

• (4) If a complaint which meets the requirements of subsection (1) is made other than in writing, the Ombudsman must—

• (a) explain to the person who made the complaint that a complaint has been duly made under this Act and the implications of making such a complaint, and

• (b) ask the person whether the person wishes the complaint to continue to be treated as a complaint that has been duly made.

• (5) If the person does not wish the complaint to continue to be treated as being duly made, the Ombudsman—

• (a) must not use the power in section 3(1)(a) to begin an investigation into the matter alleged in the complaint;

• (b) may use the power in section 4 to investigate the matter alleged in the complaint.

• (6) If the person wishes the complaint to continue to be treated as being duly made, the Ombudsman must ask the person whether the person wishes the complaint to be confirmed in writing.

• (7) If the person wishes the complaint to be confirmed in writing, the Ombudsman must make such arrangements as are necessary for the complaint to be confirmed in writing.

Requirements: complaints referred to the Ombudsman

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• (1) The requirements mentioned in section 3(3)(b) are that the complaint—

• (a) must have been made to the listed authority by a person who would have been entitled under section 7 to make the complaint to the Ombudsman;

• (b) must have been made to the listed authority before the end of the period of one year starting on the day on which the person aggrieved first had notice of the matters alleged in the complaint;

• (c) must be referred to the Ombudsman in a form and contain such information as specified by the Ombudsman in guidance;

• (d) must be referred to the Ombudsman before the end of the period of one year starting on the day on which the complaint was made to the listed authority.

• (2) The Ombudsman must publish the guidance referred to in subsection (1)(c).

• (3) It is for the Ombudsman to determine any question of whether the requirements of subsection (1) are met in respect of a complaint.

Records of complaints

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The Ombudsman must maintain a register of every complaint made or referred to the Ombudsman in respect of a matter which the Ombudsman is entitled to investigate under this Part.

Matters which may be investigated

Matters which may be investigated

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• (1) The matters which the Ombudsman is entitled to investigate under this Part are—

• (a) alleged maladministration by a listed authority in connection with relevant action;

• (b) an alleged failure in a relevant service provided by a listed authority;

• (c) an alleged failure by a listed authority to provide a relevant service.

• (2) The matters may relate to action taken before or after this Act receives Royal Assent.

• (3) Subsection (1) is subject to sections 12 to 15.

• (4) Relevant action is—

• (a) in the case of a listed authority which is a family health service provider in Wales or an independent provider in Wales, action taken by the authority in connection with the provision of a relevant service;

• (b) in the case of a listed authority which is a social landlord in Wales or a Welsh health service body other than the Welsh Ministers, action taken by the authority in the discharge of any of its functions;

• (c) in the case of a listed authority which is a person with functions conferred by regulations made under section 113(2) of the Health and Social Care (Community Health and Standards) Act 2003 (c.43), action taken by the authority in the discharge of any of those functions;

• (d) in the case of a listed authority which is a listed authority by virtue of regulations under section 31(2) adding it to Schedule 3, action taken by the authority in the discharge of any of its specified functions;

• (e) in any other case, action taken by the authority in the discharge of any of its administrative functions.

• (5) A relevant service is—

• (a) in the case of a listed authority which is a family health service provider in Wales, any of the family health services which the authority had, at the time of the action which is the subject of the investigation, entered into a contract, undertaken, or made arrangements, to provide;

• (b) in the case of a listed authority which is an independent provider in Wales, any service which the authority had, at that time, made arrangements with a Welsh health service body or a family health service provider in Wales to provide;

• (c) in the case of a listed authority falling within subsection (4)(c), any service which it was, at that time, the authority's function to provide in the discharge of any of the functions mentioned in that subsection;

• (d) in the case of a listed authority falling within subsection (4)(d), any service which it was, at that time, the authority's function to provide in the discharge of any of its specified functions;

• (e) in any other case, any service which it was, at that time, the authority's function to provide.

• (6) For the purposes of subsections (4)(d) and (5)(d), a listed authority's specified functions are the functions specified in relation to the authority in regulations under section 31(2) as falling within the Ombudsman's remit.

• (7) An administrative function which may be discharged by a person who is a member of the administrative staff of a relevant tribunal is to be treated as an administrative function of a listed authority for the purposes of subsection (4) if—

• (a) the person was appointed by the authority, or

• (b) the person was appointed with the consent of the authority (whether as to remuneration and other terms and conditions of service or otherwise).

Exclusion: matters not relating to Wales

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• (1) The Ombudsman may not investigate a matter arising in connection with the discharge or provision by a listed authority of any of the authority's functions or services otherwise than in relation to Wales.

• (2) Subsection (1) does not apply in relation to the Welsh Government.

• (3) To the extent that a function of a listed authority is discharged in relation to the Welsh language or any other aspect of Welsh culture, it is to be regarded for the purposes of subsection (1) as discharged in relation to Wales.

Exclusion: other remedies

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• (1) The Ombudsman may not investigate a matter under section 3 if the person aggrieved has or had—

• (a) a right of appeal, reference or review to or before a tribunal constituted under an enactment or by virtue of Her Majesty's prerogative,

• (b) a right of appeal to a Minister of the Crown, the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Government, or

• (c) a remedy by way of proceedings in a court of law.

• (2) But subsection (1) does not apply if the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person to resort, or to have resorted, to the right or remedy.