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Public Services Ombudsman (Wales) Act 2005

Type Public General Act

Publication 2005-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The Public Services Ombudsman for Wales

The Public Services Ombudsman for Wales

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(1) There is to be a Public Services Ombudsman for Wales or Ombwdsmon Gwasanaethau Cyhoeddus Cymru (in this Act referred to as “the Ombudsman”).

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

Part 2 — Investigation of complaints relating to listed authorities

Power of investigation

2

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

(a) the complaint has been duly made or referred to him, and

(b) the matter is one which he is entitled to investigate under sections 7 to 11.

(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 4 to make the complaint to the Ombudsman, and

(b) the requirements of section 5 are met in respect of it.

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

(a) it is referred to him by a listed authority, and

(b) the requirements of section 6 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 5(1) or (as the case may be) section 6(1)(b) or (d) are not met in respect of the complaint, if—

(a) the matter is one which he is entitled to investigate under sections 7 to 11, and

(b) he thinks it reasonable to do so.

(5) It is for the Ombudsman to decide whether to begin, continue or discontinue an investigation.

(6) The Ombudsman may take any action which he 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begin or continue an investigation into a complaint even if the complaint, or the referral of the complaint, has been withdrawn.

Alternative resolution of complaints

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(1) The Ombudsman may take any action he thinks appropriate with a view to resolving a complaint which he has power to investigate under section 2.

(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.

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 7 to 11;

(b) a person authorised by the person aggrieved to act on his behalf;

(c) if the person aggrieved is not capable of authorising a person to act on his behalf (for example because he 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 him.

Requirements: complaints made to the Ombudsman

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(1) The requirements mentioned in section 2(2)(b) are that—

(a) the complaint must be made in writing;

(b) the complaint must be made to the Ombudsman before the end of the period of one year starting on the day on which the person aggrieved first has notice of the matters alleged in the complaint.

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

Requirements: complaints referred to the Ombudsman

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(1) The requirements mentioned in section 2(3)(b) are that—

(a) the complaint must have been made to the listed authority by a person who would have been entitled under section 4 to make the complaint to the Ombudsman;

(b) the complaint 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;

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

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;

(2) Subsection (1) is subject to sections 8 to 11.

(3) 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 an order under section 28(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.

(4) 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 complaint, 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 (3)(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 paragraph;

(d) in the case of a listed authority falling within subsection (3)(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.

(5) For the purposes of subsections (3)(d) and (4)(d), a listed authority's specified functions are the functions specified in relation to the authority in an order under section 28(2) as falling within the Ombudsman's remit.

(6) 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 (3) 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 by a listed authority of any of the authority's functions otherwise than in relation to Wales.

(2) Subsection (1) does not apply in relation to the Welsh Assembly 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 this Part 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 or the , the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government, or

(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.

(3) The Ombudsman may investigate a matter under this Part only if he is satisfied that—

(a) the matter has been brought to the attention of the listed authority to which it relates by or on behalf of the person aggrieved, and

(b) the authority has been given a reasonable opportunity to investigate and respond to it.

(4) But subsection (3) does not prevent the Ombudsman from investigating a matter if he is satisfied that it is reasonable in the particular circumstances for him to investigate the matter despite the fact that the requirements of that subsection have not been met.

Other excluded matters

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(1) The Ombudsman may not investigate under this Part a matter specified in Schedule 2.

(2) The Welsh Ministers may by order amend Schedule 2 by—

(a) adding an entry;

(b) removing an entry;

(3) Before making an order under subsection (2), the Welsh Ministers must consult the Ombudsman.

(3A) No order is to be made under subsection (2) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly.

(4) Subsection (1) does not prevent the Ombudsman from investigating action of a listed authority in operating a procedure established to examine complaints or review decisions.

Decisions taken without maladministration

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(1) The Ombudsman may not question the merits of a decision taken without maladministration by a listed authority in the exercise of a discretion.

(2) Subsection (1) does not apply to the merits of a decision to the extent that the decision was taken in consequence of the exercise of professional judgement which appears to the Ombudsman to be exercisable in connection with the provision of health or social care.

Decisions not to investigate etc.

Decisions not to investigate or to discontinue investigation

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(1) If the Ombudsman decides under section 2(5)—

(a) not to begin an investigation into a complaint in respect of a listed authority, or

(b) to discontinue such an investigation,

he must prepare a statement of the reasons for his decision.

(2) The Ombudsman must send a copy of the statement to—

(a) the person who made the complaint, and

(b) the listed authority.

(3) The Ombudsman may send a copy of the statement to any other persons he thinks appropriate.

(4) The Ombudsman may publish a statement under this section if, after taking account of the interests of the person aggrieved and any other persons he thinks appropriate, he considers it to be in the public interest to do so.

(5) The Ombudsman may supply a copy of a statement published under subsection (4), or any part of such a statement, to any person who requests it.

(6) The Ombudsman may charge a reasonable fee for supplying a copy of a statement, or part of a statement, under subsection (5).

(7) If a statement prepared under subsection (1)—

(a) mentions the name of any person other than the listed authority in respect of which the complaint was made, or

(b) includes any particulars which, in the opinion of the Ombudsman, are likely to identify any such person and which, in his opinion, can be omitted without impairing the effectiveness of the statement,

that information must not be included in a version of the statement sent to a person under subsection (2) or (3) or published under subsection (4), subject to subsection (8).

(8) Subsection (7) does not apply in relation to a version of the statement if, after taking account of the interests of the person aggrieved and any other persons he thinks appropriate, the Ombudsman considers it to be in the public interest to include that information in that version of the statement.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Investigation procedure and evidence

Investigation procedure

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(1) If the Ombudsman conducts an investigation into a complaint in respect of a listed authority, he must—

(a) give the listed authority an opportunity to comment on any allegations contained in the complaint;

(b) give any other person who is alleged in the complaint to have taken or authorised the action complained of an opportunity to comment on any allegations relating to that person.

(2) An investigation must be conducted in private.

(3) Subject to subsections (1) and (2), the procedure for conducting an investigation is to be such as the Ombudsman thinks appropriate in the circumstances of the case.

(4) In particular, the Ombudsman may—

(a) make such inquiries as he thinks appropriate;

(b) determine whether any person may be represented in the investigation by an authorised person or otherwise.

(4A) In subsection (4) “authorised person” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act).

(5) The Ombudsman may pay to the person who made the complaint and to any other person who attends or supplies information for the purposes of the investigation—

(a) such sums as he may determine in respect of expenses properly incurred by them, and

(b) such allowances as he may determine by way of compensation for the loss of their time,

subject to such conditions as he may determine.

(6) The conduct of an investigation in respect of a listed authority does not affect—

(a) the validity of any action taken by the listed authority, or

(b) any power or duty of the listed authority to take further action with respect to any matter under investigation.

Information, documents, evidence and facilities

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(A1) This section applies in relation to investigations conducted under this Part.

(1) For the purposes of an investigation the Ombudsman may require a person he thinks is able to supply information or produce a document relevant to the investigation to do so.

(2) For the purposes of an investigation the Ombudsman has the same powers as the High Court in respect of—

(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and

(b) the production of documents.

(3) For the purposes of an investigation the Ombudsman may require a person he thinks is able to supply information or produce a document relevant to the investigation to provide any facility he may reasonably require.

(4) Subject to subsection (6), no person is to be compelled for the purposes of an investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the High Court.

(5) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty's service, whether imposed by any enactment or rule of law, is to apply to the disclosure of information for the purposes of an investigation.

(6) The Crown is not entitled in relation to an investigation to any privilege in respect of the production of documents or the giving of evidence that would otherwise be allowed by law in legal proceedings.

Obstruction and contempt

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(1) If the Ombudsman is satisfied that the condition in subsection (2) is met in relation to a person, he may issue a certificate to that effect to the High Court.

(2) The condition is that the person—

(a) without lawful excuse, has obstructed the discharge of any of the Ombudsman's functions under this Part, or

(b) has done an act in relation to an investigation which, if the investigation were proceedings in the High Court, would constitute contempt of court.

(3) But the condition in subsection (2) is not met in relation to a person merely because he has taken action such as is mentioned in section 13(6).

(4) If the Ombudsman issues a certificate under subsection (1), the High Court may inquire into the matter.

(5) If the High Court is satisfied that the condition in subsection (2) is met in relation to the person, it may deal with him in any manner in which it could have dealt with him if he had committed contempt in relation to the High Court.

Reports of investigations

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(1) The Ombudsman must, after conducting an investigation into a complaint in respect of a listed authority—

(a) prepare a report on his findings, and

(b) send a copy of the report to all the appropriate persons.

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