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Public Services Ombudsman Act (Northern Ireland) 2016

Type Act of the Northern Ireland Assembly

Publication 2016-02-19

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — THE NORTHERN IRELAND PUBLIC SERVICES OMBUDSMAN

The Northern Ireland Public Services Ombudsman

1

(1) There is to be a Northern Ireland Public Services Ombudsman (in this Act “the Ombudsman”).

(2) The principal purpose of the Ombudsman is to investigate alleged maladministration in listed authorities.

(3) Schedule 1 makes further provision about the Ombudsman.

Independence

2

(1) The Ombudsman is not subject to the direction or control of—

(a) a Minister,

(b) the Secretary of State,

(d) the Assembly, or

(e) the Assembly Commission.

(2) But this is subject to—

(a) the power of the Assembly Commission to determine the salary, pension and terms of appointment of the Ombudsman under paragraphs 6, 7 and 8 of Schedule 1,

(b) the power of the Assembly to request Her Majesty to remove the Ombudsman from office under paragraph 9 of Schedule 1,

(c) the power of the Department of Finance and Personnel to direct the form of accounts the Ombudsman must prepare, under paragraph 7 of Schedule 2, or sections 9 to 13 of the Government Resources and Accounts Act (Northern Ireland) 2001.

(d) the power of the Department of Finance under sections 8A and 8B of the Government Resources and Accounts Act (Northern Ireland) 2001 to issue directions in relation to estimates for the Ombudsman.

Appointment

3

(1) The Ombudsman is to be appointed by Her Majesty, on the nomination of the Assembly.

(2) Appointment is for a term of 7 years.

(3) A person appointed as the Ombudsman is not eligible for re-appointment.

(4) The Assembly Commission is to make arrangements for—

(a) determining the criteria for appointment, and

(b) ensuring that the person to be appointed has been identified by fair and open competition.

(5) The validity of the exercise of any function of the Ombudsman is not affected by any defect in appointment.

Abolition of existing offices

4

(1) The offices of—

(a) Assembly Ombudsman for Northern Ireland, and

(b) Northern Ireland Commissioner for Complaints,

are abolished.

(2) In this Act those offices are referred to as “existing offices”.

(3) Schedule 2 (which provides for the transfer of assets, liabilities, staff etc. of the existing offices to the Ombudsman, and which makes other transitional and savings arrangements) has effect.

PART 2 — INVESTIGATIONS

Power of investigation

Power to investigate complaints made by a person aggrieved

5

(1) The Ombudsman may investigate a complaint, made by a member of the public who claims to have sustained an injustice (in this Act referred to as “a person aggrieved”), if the requirements of this section are met.

(2) The complaint must relate to action taken by a listed authority (see sections 12 and 13).

(3) The complaint must relate to a matter which can be investigated (see sections 14 to 23).

(4) The procedural requirements of sections 24 to 27 must have been followed.

(5) In this section “member of the public” means any individual or any incorporated or unincorporated body other than—

(a) a listed authority acting in its capacity as such, or

(b) a member or officer, at the time of the action complained of and acting in that capacity, of the listed authority against which the complaint is made.

Power to investigate complaints referred by a listed authority

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(1) The Ombudsman may investigate a complaint referred by a listed authority if the requirements of this section are met.

(2) The complaint must have been made to the listed authority by a person aggrieved.

(3) The listed authority must have been unable to resolve the complaint.

(4) The complaint must relate to action taken by the listed authority (see sections 12 and 13).

(5) The complaint must relate to a matter which can be investigated (see sections 14 to 23).

(6) The procedural requirements of section 28 must have been followed.

Acting on behalf of a person aggrieved

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(1) A member of the Assembly may act on behalf of a person aggrieved if authorised to act by the person.

(2) The following may act on behalf of a person aggrieved who has died, or is unable for any reason to act—

(a) a member of the Assembly,

(b) a personal representative,

(d) any other person the Ombudsman considers appropriate.

(3) Any other person may act on behalf of a person aggrieved if—

(a) that person is authorised in writing to act by the person aggrieved, and

(b) the Ombudsman considers that person appropriate.

(4) In the case of a complaint referred by a listed authority to the Ombudsman, the requirement in subsection (2) and (3) that the Ombudsman considers a person appropriate has no effect.

(5) Where, under this section, another person acts on behalf of a person aggrieved, references in any other provision of this Act to a person aggrieved are to be construed as including that other person.

Power to investigate on own initiative

8

(1) The Ombudsman may investigate a matter in respect of which—

(a) no complaint has been made, or

(b) one or more complaints have been made (even if these complaints do not satisfy the requirements set out in sections 24 to 27),

if the requirements of this section are met.

(2) The matter must relate to action taken by one or more listed authorities (see sections 12 and 13).

(3) The matter must be one which can be investigated (see sections 14 to 23).

(4) The Ombudsman must have a reasonable suspicion—

(a) that there is systemic maladministration, or

(b) in a case where the matter is one which falls to be investigated under section 15(2)(b), 16(2)(b) or 17(2)(b), that systemic injustice has been sustained as a result of the exercise of professional judgement.

(5) The procedural requirements of section 29 must have been followed.

(6) The matter may relate to action taken before as well as after the day this section comes into operation.

Criteria for own initiative investigations

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(1) The Ombudsman must establish (and may from time to time amend) criteria to be used in determining whether to commence an investigation under section 8.

(2) The Ombudsman must publish and have regard to these criteria.

Alternative resolution of complaints

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(1) The Ombudsman may take any action which the Ombudsman considers appropriate with a view to resolving a complaint which could be investigated under section 5 or 6.

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

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

Purposes of investigation

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The purposes of an investigation are—

(a) to ascertain if—

(i) the matter properly warrants investigation, and

(ii) the allegations contained in a complaint are in substance true,

(b) where it appears to the Ombudsman to be desirable, to bring about a settlement, including by recommending that—

(i) action be taken by the person aggrieved or listed authority, or

(ii) the listed authority make a payment to the person aggrieved, and

(i) section 8(4)(a), to ascertain if there is systemic maladministration,

(ii) section 8(4)(b), to ascertain if there is systemic injustice.

Listed authorities

12

(1) Each of the authorities listed in Schedule 3 is a listed authority for the purposes of this Act.

(2) The Office of the First Minister and deputy First Minister may by order amend Schedule 3 by—

(a) adding or omitting an authority, or

(b) altering its description.

(3) But an order under subsection (2) may not add an authority unless the authority—

(a) exercises functions on behalf of the Crown,

(b) is a body whose members, in whole or in part, are public appointees,

(d) exercises functions conferred by a statutory provision.

(4) For the purposes of this section, a public appointee is a person appointed by—

(a) the Crown,

(b) a Minister,

(d) a Northern Ireland department,

(e) a department of the Government of the United Kingdom,

(f) the Assembly, or

(g) the Assembly Commission.

(5) For the purposes of this section, a body is financed out of public funds if—

(a) its expenses are defrayed out of moneys appropriated by Act of the Assembly,

(b) its expenses are defrayed out of moneys appropriated by Act of Parliament,

(d) its expenses are charged on and issued out of the Consolidated Fund of the United Kingdom.

(6) Before making an order under this section, the Office of the First Minister and deputy First Minister must consult the Ombudsman, the authority concerned, and any other person it thinks appropriate.

Meaning of action taken by a listed authority

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(1) For the purposes of this Act, action is taken by a listed authority if it is taken by—

(a) that authority,

(b) a member, officer or member of staff of the authority acting in the discharge of functions of the authority,

(d) any other person acting on behalf of the authority.

(2) In this Act references to action taken by a listed authority include a failure to act on the part of the authority; and such other expressions connoting action are to be construed accordingly.

Matters which may be investigated

Matters which may be investigated: general

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(1) The Ombudsman may investigate alleged maladministration through action taken in the exercise of administrative functions by a listed authority.

(2) This section does not apply to—

(a) health and social care bodies,

(b) general health care providers,

(d) the universities referred to in section 18.

Matters which may be investigated: health and social care bodies

15

(1) This section applies where a listed authority is a health and social care body.

(2) The Ombudsman may investigate—

(a) alleged maladministration through action taken in the exercise of administrative functions by the health and social care body,

(b) the merits of a decision of that body to the extent that it was taken in consequence of the exercise of professional judgement exercisable in connection with the provision of health or social care.

Matters which may be investigated: general health care providers

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(1) This section applies where a listed authority is a general health care provider.

(2) The Ombudsman may investigate—

(a) alleged maladministration through action taken in the exercise of administrative functions by the general health care provider in connection with general health care services,

(b) the merits of a decision of that body to the extent that it was taken in consequence of the exercise of professional judgement in connection with general health care services.

(3) In this Act, a general health care provider is—

(a) an individual undertaking to provide primary medical services or general dental services under Part 6 of the Health and Personal Social Services (Northern Ireland) Order 1972,

(b) a person undertaking to provide general ophthalmic services or pharmaceutical services under Part 6 of that Order, or

(c) an individual performing primary medical services or personal dental services in accordance with arrangements made under Article 15B of that Order (except as employees of, or otherwise on behalf of, a health and social care body or an independent provider).

(4) In this Act, general health care services are the services mentioned in subsection (3).

Matters which may be investigated: independent providers of health and social care

17

(1) This section applies where the listed authority is an independent provider of health and social care.

(2) The Ombudsman may investigate—

(a) alleged maladministration through action taken in the exercise of administrative functions by the independent provider in connection with an arrangement with a health and social care body or a general health care provider to provide a service,

(b) the merits of a decision of that body to the extent that it was taken in consequence of the exercise of professional judgement exercisable in connection with the provision of health or social care under that arrangement.

(3) In this Act, an independent provider of health and social care is a person—

(a) providing services (of any kind) under an arrangement with a health and social care body or a general health care provider, and

(b) who is not a health and social care body or a general health care provider.

Matters which may be investigated: universities

18

(1) This section applies where the listed authority is—

(a) The Queen's University of Belfast,

(b) University of Ulster.

(2) The Ombudsman may investigate alleged maladministration through action taken by a university in the exercise of administrative functions, in respect of students enrolled in courses provided or validated by the university.

(3) Where the investigation is under section 5 or 6, the complaint must have been made by a student, or a person who has been a student.

(4) But the Ombudsman has no jurisdiction to investigate a matter to the extent that it relates to a matter of academic judgement.

(5) If the Ombudsman has jurisdiction in respect of a complaint, the visitor of a university has no jurisdiction in respect of that complaint.

(6) Where, before this section has come into operation, a complaint has been made to the visitor but has not been resolved by the visitor, the visitor has jurisdiction to deal with that complaint as if the other provisions of this section had not come into operation.

(7) In this Act, references to a university include references to a constituent college, school or hall or other institution of a university.

Administrative functions of staff of tribunals

19

(1) For the purposes of section 14, administrative functions exercisable by any person appointed or assigned by the Department of Justice to serve as a member of the administrative staff of any court or tribunal are to be taken to be administrative functions of that Department.

(2) For the purposes of section 14, administrative functions exercisable by any person appointed or assigned to serve as a member of the administrative staff of a tribunal listed in Schedule 4—

(a) by a listed authority, or

(b) with the consent (whether as to remuneration and other terms and conditions of service or otherwise) of a listed authority,

are to be taken to be administrative functions of that listed authority.

(3) The Office of the First Minister and deputy First Minister may by order amend Schedule 4 by—

(a) adding or omitting an entry, or

(b) altering its description.

(4) Before making an order under this section, the Office of the First Minister and deputy First Minister must consult the Ombudsman and any other person it thinks appropriate.

Exclusion: public sector employment

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TheOmbudsman must not investigate action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters in relation to—

(a) service in any office or employment under a listed authority,

(b) service in any office or employment under the Crown,

(i) in any office or employment; or

(ii) under any contract for services,

in respect of which power to take action, or to determine or approve the action to be taken, in such matters is vested in a listed authority.

Exclusion: other remedies available

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(1) The Ombudsman must not investigate—

(a) any action in respect of which the person aggrieved has or had a right of appeal, complaint, reference or review to or before a tribunal constituted under any statutory provision or by virtue of Her Majesty's prerogative,

(b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in a court of law.

(2) But this is subject to—

(a) section 78 of the Northern Ireland Act 1998 (investigations involving discrimination or making oaths or declarations), and

(b) subsection (3).

(3) The Ombudsman may investigate—

(a) notwithstanding that the person aggrieved has or had such a right or remedy as is mentioned in subsection (1), if the Ombudsman is satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort to or have resorted to it, or

(b) notwithstanding that the person aggrieved had exercised such a right as is mentioned in subsection (1)(a), if the person aggrieved complains that the injustice sustained remains unremedied thereby and the Ombudsman is satisfied that there are reasonable grounds for that complaint.

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