POLICYBRIEF

CriticsoftheOmbudsmanSystem:UnderstandingandEngagingOnlineCitizenActivists

December 2015

08Fall

NaomiCreutzfeldt&ChrisGill

CentreforSocio-LegalStudies,UniversityofOxfordConsumerInsightCentreQueenMargaretUniversity

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ExecutiveSummary

• Thispolicybriefpresents theoutcomesand recommendations fromanESRCIAA 1 funded knowledge exchange project on activist consumer groups(‘ombudsmanwatchers’).2

• Twoworkshopswere held to explore the activities and significance of these‘ombudsmanwatchers’whoareusingtheInternetandsocialmediatoprotestabouttheoperationofombudsmanschemes.

• The workshop with the ombudsman watchers covered the nature of theircritiqueofombudsmanschemes;andthegoalsoftheircampaigns,themethodsusedtoachievethem,andtheresponsestheyhadobtainedfromombudsmanschemesandothers.

• Theaimof theworkshopwith theombudsmanschemeswas todiscusswhatthey felt the issues to be and how they had interactedwith the ombudsmanwatchersoperatingintheirarea.

• Manyoftheissuesraisedbytheombudsmanwatcherstouchuponimportantandwidelyrecogniseddilemmasfortheombudsmaninstitution.Thesemattersare likely to continue tobe controversial and,perhaps, require a clearer andmore coherently developed position amongst the wider ombudsmancommunity.

• Atthesametime,thecritiquesputforwardbytheombudsmanwatchersmayhighlightthewayinwhichthepublicmisunderstandstheroleofombudsmanschemesandmaybeindicativeofanapparentgapbetweenpublicexpectationandwhatombudsmanschemesaresetuptoprovide.

• Someombudsmanschemeshadbeenveryproactive in termsofengagement.However, it is not clearwhether, from an ombudsman scheme’s perspective,engagementislikelytoresultinlearningforserviceimprovement.Therewasvariationinthedegreetowhichombudsmanschemeshadfoundthecritiquesof ombudsman watchers constructive and useful and to what extent thosecritiques had informed service improvements and resulted in meaningfuldialogue.

• Theinfluenceofombudsmanwatchersandthedegreetowhichtheyshouldbeengagedwith is likely to remain a troubling issue for ombudsman schemes.Thisinvolvesbalancingtheneedtoaddressnegativepublicityandthedesiretodraw lessons from the experiences of dissatisfied complainants, at the sametime as recognizing that this risks privileging potentially unrepresentativeperspectives.

1TheEconomicandSocialResearchCouncil(ImpactAccelerationAccount).2https://www.law.ox.ac.uk/research-and-subject-groups/online-critics-ombudsmen

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CriticsoftheOmbudsmanSystem:UnderstandingandEngagingOnline

CitizenActivistsOnlineActivismandOmbudsmanWatchersThis ESRC-funded knowledge exchange project examined the activities andsignificanceof activist consumergroupswhoareusing the Internet and socialmedia to protest about the operation of ombudsman schemes in the UnitedKingdom(CreutzfeldtandGill2014).Wecalltheseonlineactivistconsumergroups‘ombudsmanwatchers’,afteroneof the first such websites to be set-up. The aim of the project was to helppolicymakers, practitioners and stakeholders of ombudsman schemes byexploring thedrivers for thisparticular formofprotestandtheways inwhichthis social phonomenon can be better understood andmanaged to ensure thecontinuedlegitimacyofombudsmanschemes.Akeygoalwasfortheprojecttolead to an exchange of views between ombudsman schemes and ombudsmanwatchers.Theprojecthadtwospecificaims:

(1) to understand the concerns, goals and operations of ombudsmanwatchergroups(andindividuals);and

(2) to understand how ombudsman schemes are responding to scrutinyfromombudsmanwatchers.

The project was delivered in partnership with the PHSO, which is currentlyunder close scrutiny from a group of ombudsman watchers called ‘PHSO theFacts’. Several other UK ombudsman schemes have one ormore ombudsmanwatcher groups, so that this phenomenon and the outputs of this project arelikelytobeofsignificantinteresttootherswithintheombudsmancommunity.From an academic perspective, the project aimed to shed light on a new andrapidlydevelopingphenomenonatatimewhenombudsmanschemesaretakingon an increasingly important role within the justice system and, therefore,coming undermore intense scrutiny. As the spotlight is increasingly directedtowards ombudsman schemes, it is important to begin to understand andexaminethosevoicesthatarecriticalofthesystem.The project was delivered by holding a series of workshops. Twoworkshopswereheldwithrepresentativesfromombudsmanwatchergroups(includingan

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individualwhosetupawebsite)3andoneworkshopwithrepresentativesfromombudsmanschemes4.Intotal,10representativestookpartintheproject:fivefrom ombudsman watcher groups and five from ombudsman schemes. ThisPolicyBriefsummarisesthekeypointsarisingfromtheworkshopsandsetsoutsome preliminary conclusions with regard to future policy, practice, andresearch.

WORKSHOP1:TheOmbudsmanWatchers’CritiqueWeinvitedsixombudsmanwatchergroupstotakepart intheproject.Onedidnotreply,onetoldusthatthegroupwasnolongeractive,andonewasunabletoattend the workshops. The final workshops secured attendance fromrepresentatives of groups who were critical of the Financial OmbudsmanService, the Legal Ombudsman (representative is not part of a group), theParliamentaryandHealthServicesOmbudsman,andtheScottishPublicServicesOmbudsman.Thediscussionwaswiderangingbutcoveredtwomainareas:(1) thenatureoftheombudsmanwatchers’critiqueofombudsmanschemes;(2)thegoalsofombudsmanwatchers’campaigns,themethodsusedtoachievetheirgoals,andtheresponsestheyhadobtainedfromombudsmanschemesandothers.Theombudsmanwatchers’critiqueofombudsmanschemesThroughtheworkshopdiscussions,weidentifiedfourbroadthemesintermsofombudsmanwatchers’critiquesofombudsmanschemes:

• Lackofaccountability• Proceduralandpracticeissues• Staffingandqualifications• Theimpactofthesystemoncomplainants

Lack of accountability. Severalparticipantsexpressed theview that therewasalackofaccountability,dietotheabsenceofanyeffectiveformofappealtochallengethedecisionsofombudsmanschemes.Judicialreviewwasregardedasa very limited and inaccessible form of review. Internal reviews are seen as‘rubberstamping’exercises,whichwereinsufficientlyrobustandgaveverylittleassurancetocomplainants.Evenwhereombudsmanschemesused‘independentreviewers’, these provided little accountability because they were paid by3Accountability Scotland http://www.accountabilityscotland.org, phso the facts http://phsothefacts.com, Financial Ombudsman Problems www.financial-ombudsman-problems.co.uk, Legal Ombudsman problems http://www.legalombudsman-problems.co.uk/. 4ParliamentaryandHealthServicesOmbudsman,LocalGovernmentOmdurman,FinancialOmbudsmanServices,OmbudsmanServicesandScottishPublicServicesOmbudsman.

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ombudsman schemes and their remit concerned administrative and servicematters, rather than providing a route of appeal against the substantivedecisionsofombudsmanschemes.Some participants felt strongly that, as a result, the quality of ombudsmanschemes’decisionsweresubjecttoalmostnoexternaloversight.Theperceptionwas expressed that the schemeswere analogous to a bean factory,where theonly concernwason theprocedures and efficiencyof beanprocessing andnoone tasted the quality of the final product. One participant noted thatParliamentary scrutiny did involve asking some searching questions, but thatevasiveanswerswerenotsufficientlyfollowedup.Generally,therewasalackofinterest and knowledge amongst the public and parliamentarians aboutombudsman schemes and administrative justice, which meant accountabilitywasweakened.Another issue, which participants perceived interfered with ombudsmanschemes’accountability,was the fact that thewaytheyreporteddatacouldbeconfusingandwassubjecttofrequentchange.Anexamplecitedbyparticipantsrelated to how upheld complaints were reported, where it could be unclearwhetherthesubstantiveissuewasupheldoraminor,peripheralissue.Another example that was given by participants related to the results ofcustomer satisfaction surveys, whichwere carried out and published in waysthatdidnot allow for easyyear-to-year comparisons.The suggestionwas thatombudsman schemes might report statistics in a way that made theirperformancelookmorefavourablethanitwasinactuality.Severalparticipantsalsofeltthattheapproachofombudsmanschemescouldbesecretiveandopaque.Forexample,itwasallegedthatoneombudsmanschemerefusedtoreleasetheidentityofprofessionaladvisersusedtoprovideadviceoncases,whileinformationprovidedbyorganisationswasnotalwayssharedwithcomplainants.Itwasnotalwayscleartocomplainantshowcaseshadbeendealtwith, leading to a perception of unfairness. Some participantsmentioned thatthissenseofopacitywasalsopresent inrelationtohowombudsmanschemesdealtwith Freedomof Information (FOI) requests. They considered that basicinformation shouldbeprovidedmore transparently,without forcingpeople tousetheformalFOIprocess.One participant accepted that demands for greater accountability byombudsmanschemesalwaysneeded tobebalancedagainst theneed for theirindependence, and that a key issue in relation to the effectiveness ofombudsmanschemeswasgettingthebalancerightbetweenaccountabilityandindependence.Proceduralandpracticeissues.Someparticipantsqueriedtherobustnessof ombudsman schemes’ investigation processes, noting that they were deskbased, ‘paper exercises’ and insufficiently inquisitorial. They compared

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unfavourably to other administrative investigations such as those involvingfraud, which had robust methodologies. Information provided by the bodiesbeinginvestigatedwasoftenacceptedatfacevalueratherthanbeingchallenged,even where it was asserted that the complainant had been able to provideirrefutablecontradictingevidence.Theprocesswasseenasone-sided,withcomplainantsnotbeingmadeprivytodiscussions between ombudsman schemes and the bodies investigated. Someparticipantsclaimedthatoneombudsmanschemesharedreportswiththebodyinvestigated prior to it being shared with the complainant. Overall, oneparticipant felt the process was ‘democratic window dressing’ rather than aserious attempt to investigate issues. In addition to the perception that therewas a tendency for ombudsman schemes to be both procedurally andsubstantivelybiasedinfavourofthebodybeinginvestigated,someparticipantsfelt that ombudsman schemes were under pressure to ‘gate keep’ theirresources.Thisgaverisetotheperceptionthatstaffwerecontinuallylookingforwaystoclosecasesdownandthattheprocessendedupbeingaseriesofhurdlesfor complainants to fight their way through. This was seen as particularlyproblematicinthecontextofrestrictionsonwideraccesstojustice(specificallyjudicial reviewandADR),whichmeant thatombudsmanschemeshadbecometheonlyoptionavailabletopeople.Someparticipantsnotedanincreasingtrendfor cases tobedismissedover the telephone, at a very early stage, and that itwasdifficulttobeclearaboutwhythiswasthecase.Other process issues identified by participants included the fact thatmultipleombudsmanstaffcouldbeinvolvedinacomplaint,whichmeantthattheprocesscouldendup feelingvery impersonal.Oneparticipantcontrasted thiswith theNetherlands,whereasinglecaseofficerdealtwithacasefrombeginningtoendof the process. Linked to this issue, participants discussed the idea that someombudsmanschemesweremovingtowardsacallcentremodel,whichalthoughit could be appropriate for some disputes, was not appropriate for morecomplexandsensitiveissues.Therewasasuggestionthatacallcentreapproachwasmoreaboutdeflectingcomplaintsandreducingdemandthanabouthavingcomplaintsinvestigatedthoroughly.Generally, some participants felt that the confidentiality of ombudsmanschemes’ processes was used as a smokescreen. It was harder for people tounderstand and assess the fairness of ombudsman processes compared withthosewhicharemorevisible,suchascourts. Thiswasexacerbatedbythefactthatombudsmanschemeswereseentooperateinagreyareawithoutclearandfixed criteria. There was no definition of an investigation, nor did the terms‘maladministration’ and ‘fair and reasonable’ provide any clear criteria orstandardsagainstwhichactionscouldbejudged.Therewasa generalperception thatombudsmanschemeswere there to ‘helpthe little guy’ and this was reinforced by the way that they presentedthemselves.However,participantsfeltthat inpracticecomplainantsfoundthattheydidnotreceivehelpfromombudsmanschemes.

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Staffing and qualifications. Someparticipants felt that the qualificationsandbackgroundsof ombudsman staff couldbeproblematic. Someperceivedalackofknowledgeoverthemattersbeinginvestigatedor,moregenerally,alackof lifeexperience.Thiscould leadto investigatorsacceptingevidenceprovidedbythebodiesbeing investigatedat facevalue. Itwasperceivedthatoftenstaffdid not have professional qualifications in the area being investigated nor didtheyhave the legalqualifications toallowthemtoconsidermoregeneral legalissues in cases. In terms of the ombudsman sector more generally, this wasperceived to be a small world and something of an ‘old boys and girls club’.Severalombudsmanandformerombudsmansatoneachother’sboardsoractedasIndependentAssessors,whichmeanthatexternalperspectiveswerelacking.The impact of the system on complainants. Participants felt stronglythat the current overall system for complaints, ofwhich ombudsman schemeswereapart,couldhaveseriousnegativeconsequenceforcomplainantsinsearchof justice. One participant said that part of the problem was that the initialresponsefromthebodycomplainedagainstwasoftenverydismissivebutthatthissetthetoneforsubsequentinvestigations.Complainingwasdescribedasadifficult process, which required significant persistence, often at a timewhencomplainantswereinanemotionallyfragilestate.Internalprocessesrunbythebodies complained against could often dismiss complainants’ concerns andwhenombudsmanschemesdidthesame,thiscouldleavethemfeelingasenseofhelplessness and significant injustice and often worse. Some participantssuggested that complainants required more support and even representationwhen going through the complaint and ombudsman system. Participants saidthateventhoughtheyweretenacious,articulateandresourceful,theyhadfoundit difficult to get a hearing from ombudsman schemes. They suggested thatvulnerablepeoplewouldfinditimpossiblewithoutassistance.One participant noted that a particular ombudsman schemes’ own customersatisfaction surveys showed significant dissatisfaction with the service beingprovided. This comparedunfavourably to other ombudsman schemes, such asthe one in Gibraltar, where the ombudsman had a 98% positive satisfactionscore,regardlessofoutcomes.Theacceptancebysomeombudsmanschemesofreasonably high dissatisfaction rates was seen as problematic by someparticipants.Participants said that the system could be very inaccessible and veryintimidatingforcomplainants.Therewasaviewthatombudsmanschemesweretoo quick to label complainants as vexatious and so refuse to dealwith them,particularly if they were complaining about long running cases. At the sametime,participantssaidthatsomecomplainantsdidendupbeingquerulousandpsychologically damaged and had lost perspective on their complaints. Theyconsideredthatthiswasaresultofthecomplaintssystemwhichdidnotallowpeopletobeheardandwasinsufficientlyadaptedtotheirneeds.

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Motivations,goals,methods,andresponsesMotivations.Participantsweremotivatedtosetuptheirwebsiteandpursuecampaigningworkbyastrongsenseofinjusticeusually,butnowalways,arisingfrom theway their own caseshadbeendealtwith, combinedwith adesire tohelpotherswhohadfoundthemselvesinasimilarsituation.Someparticipantssaid they saw their role as redressing the imbalance of power betweencomplainants and ombudsman schemes through the provision of informationonline. One participant noted that starting a website had initially been aresponse to the lack of genuinely independent appeal routes available.Participantsvariedintermsofthenatureoftheirwebsiteandwhattheyhopedto achieve. While two of the sites had a broad membership and clearcampaigninggoals,oneofthemwasdescribedasmoreofaninformationserviceand, despite receiving a number of contacts from complainants, did not haveother groupmembers. In addition to providing information and campaigningfor change, a strongmotivation noted by participantswas to act as a form ofaccountability.Asnotedabove,theyperceivedalackofaccountabilitytobekeyproblemwiththeombudsmansystem.Goals. One participant noted that his website’s goals were largely aroundinformationprovisionandseekingtoenhancetheaccountabilityofombudsmanschemes.Otherparticipantshaddetailedproposalsforreformofthesystem.Inthehealtharea, participants put forward two sets of proposals. One involved a muchrestrictedrole for theombudsman ina system thatwould involve:an internalcomplaintsstage,alocaltribunal,withlayandexpertmedicalpanelsreachingaviewfollowingahearing,andalimitedappealtotheombudsmanfollowingthehearing. The advantages of this proposed system were seen as allowcomplainants to hold services to account more directly and openly, allowingthemtobeheard,eveniftheydidnotgetasuccessfuloutcome.Anotherproposalwastocreateanewregulatorybodyorinstitutecomposedofspecialist clinical investigators, who would also be able to self-initiateinvestigations.Thisbodywouldbefundedbycentralgovernmentonacasefeebasis in suchaway that attentionwouldbe focusedonnumberof complaintsand in order to incentivise improvements. The institutewould also be able torefer complaints to the police if criminal actionwas suspected and thismightrequire a specialist policy unit for dealingwith health and care issues. Such asystem, which was seen as more robust that the present one, was viewed asimportantinlightofincreasedprivatisationofhealthservices.TheideaofasinglepublicserviceombudsmanforEnglandwasseenwithsomescepticismonthebasisthatitwouldremovethemeansofredressevenfurtherfromthelocallevelandinvolvethecreationofanincreasinglyin-expertbody.

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Onegroupofparticipants suggesteda rangeof goals that theywerepursuing.Theysaidtheyhadbeentryingtoencouragetheombudsmantoadoptsomeofthe international standards on complaints and quality assurance such asISO9001 and ISO10002. These standards require internal quality assuranceprocessesthatcheckoutcomesaswellasprocessesatasmallcost.Participantsnoted that the Gibraltar model of ombudsmanry could be adapted for use intheir context. The local nature of the ombudsman, which deals with 30,000citizens,was seen as key to his success. The office is accessible, citizens havedirect contact with the ombudsman, interviews are frequently used, and theombudsman has a clear sense of how public organisations are operating andwhereproblemsexist.Drawingonasimilarmodel,theseparticipantssaidtheywould like to see a reformed ombudsman system operating on a local level,within an overall national structure. Participants felt that a system with lowsatisfactionwasnottenableinthelongterm,sothoughtneedstobegiventoamorelocalmodel,whichislessdistant,bureaucratic,andautocratic.Anothermodel thatwasconsidered tobehelpfulby thisgroupofparticipantswasthatusedintheNetherlandswherethereisa‘presumptionofhonesty’ruleinoperation.Thismeansthatunlessthereisarecordtoproveapublicbodyhasacted in a certain way, the account of the complainant will be accepted ascorrect,thepresumptionbeingthattheyarelikelytobehonestinputtingtheircase.Thiswasseenascrucialinacircumstancewherethepublicbodieshaveallthepowerandhavecontrolovertheproductionoftheevidence.Giventheinaccessibilityofjudicialreviewasameansofholdingtheombudsmantoaccountinindividualcases,participantsalsosaidthywerepursuingtheideathatsomeformofADRcouldbe introducedasanalternative togoing tocourtforthosewhofeeltheombudsmanhadgotitwrong.Thiscouldprovideameansofreviewthatisactuallyaccessibletopeople.Finally, this group of participants said theywere interested in research aboutquerulousbehaviourandtheimpactofcomplainingonthosewhocomplainandthe costs associated with this for individuals (financial, emotional, etc.). Theywerealsointerestedinexploringhowcomplaintsystemscouldbereformedinwaysthatcouldhelpavoidorreducethesecosts–currentlytheyfeltthesystemdoesnotrecognize theoutcomes(healthandpsychological) it canproduce forindividuals or the extent to which current approaches are responsible forexacerbatingtheseoutcomes.Methods and responses. One participant said he used his site to raiseawareness and tried to post interesting stories and often reproducedinformationthathadbeenproducedbyothers.Henotedthatthe‘WhatDoTheyKnow’websitewasveryusefulasasourceof informationonhowombudsmanschemeswereoperating.Participantsfromthegroupswhichsawthemselvesasactive campaigners described a range of activities: attending parliamentarycommitteehearings;submittingevidencetoinquiriesandreviews;successfullylobbying tomeetministers; pushing the ombudsman to review historic cases;

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participatinginreformactivitiesledbytheombudsman;andattendingrelevantconferences.In terms of the response, which these activities had had, participants did notknowbutsuspectedthatanyimpactmayhavebeenlimited.Someparticipantsdidnote,however, thatsomeof thechangesanddevelopments inombudsmanschemesovertimedidappeartobeaddressingissuesthattheyhadraised,andcouldbetheresultofthepressuretheyhadapplied.Somehadalsobeeninvitedtocontributedirectlytoproposalsforchangebytheombudsmanscheme.Someparticipants noted that their approach was to try to depersonalise theircampaign and avoid presenting individual stories. They said they only usedpublicly available information and drew on this to put forward their critique.Theynotedthat theytriedtobeconstructiveandnon-confrontationalandhadmostly pursued their campaign through engagement with Parliament and byresponding to consultations. This group of participants had accepted aninvitation toactasasoundingboardby theombudsmanatonepoint,buthadsubsequently been ignored. These participants questioned the effectiveness ofthesoundingboardofstakeholders thathadbeensetup.TheyalsonotedthatsomeParliamentaryCommitteeswereincreasinglyreluctanttoengagewiththegroup.

WORKSHOP2:TheOmbudsmanSchemes’PerspectiveA workshop was held with representatives from ombudsman organisations,including the Financial Ombudsman Service, Ombudsman Services, theParliamentary and Health Services Ombudsman, the Scottish Public ServicesOmbudsman,andtheLocalGovernmentOmbudsman.Theaimofthisworkshopwastodiscusswhatombudsmanschemesfelttheissuestobeandhowtheyhadapproachedtheombudsmanwatchersoperatingintheirarea.WhatIssuesHaveOmbudsmanWatchersRaised?Lackofclearthemes.Participantsgenerallyagreedthattherewasalackofclearthemesarisingfromthecriticismstheyhadbeensubjectedto.Somenotedthatthemembersofthegroupsdidnothavecommonaimsandthataimscouldshift constantly, making it very difficult to satisfy the concerns being raised.Nonetheless, some participants noted some of the criticisms include: thetimescalesforinvestigation;alackofclarityoverhowcomplaintsweredefined;a lack of contact with the complainants during cases; a perceived lack ofindependence from the bodies investigated; and the use of staff previouslyemployed by the bodies under investigation. Generally, suspicion of theindependenceandimpartialityofombudsmenwasapointraisedbycritics.Oneparticipantnotedthatthecampaigninggroupconcernedwiththeirorganisationexpected a different type of investigation to the kind that ombudsmen weregeared up to provide. Somewanted a kind of audit style investigation, whichwouldincluderootcauseanalysisandabroadsystemicapproachtoindividualcomplaints.Althoughsomesystemicworkwasundertaken, theexpectationsof

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thiskindofin-depthauditingapproachcouldnotgenerallybemetinmostcases.There was also a desire from some campaigners to see ombudsmen punishserviceproviders(e.g.finesorfiringindividuals)whichwasnotwithinthescopeofthelegalpowersoftheombudsmanschemes.

Individualissuesandunrealisticexpectations.Oneparticipant(fromascheme whose ombudsman watcher did not attend the workshop describedabove)saidtherewerenothemesarisingfromthewebsiteconcernedwithhisorganisation because it was focused on the personal experience of a singleindividual.Hesaidthatasaresultoftheveryindividualnatureofthecriticismsand the fact that these related to historic practices, therewas little scope forlearninglessonsinrelationtopossibleserviceimprovements.

Other participants also agreed that the criticisms they faced could be veryindividualistic rather than relating to broader issues, and that some groupsmighthavemorelimitedmembershipsthanothers.Oneareawheretherewasabroadertheme,however,wasinrelationtothefactthatthecriticismstendedtoindicate a public misunderstanding of the role of ombudsman schemes.Participants noted that there could be a public perception that ombudsmanschemeswere regulatorsor consumer championsand that this could result incomplainants having unrealistic expectations. Participants suggested that thecritiques they were subject to could in part be explained by the fact thatcomplainants had unrealistic expectations ofwhat ombudsman schemeswerefor.

Theinevitabilityofdissatisfaction.Severalparticipantsnotedthattherewas some sense in which criticism of ombudsman schemes was inevitable inthat theywereat the last stageof theprocessandrepresented the ‘endof theline’. One participant noted that the damage had often been done before acomplainant arrived at the ombudsman’s office, and that negative perceptionscould be more about the whole complaint journey than the part which theombudsmanwasresponsiblefor.Therewasawideperceptionthatsatisfactionlevelsgenerallyfollowedtheoutcomethatthecomplainanthadreceived.

HowhaveOmbudsmanSchemesEngagedwiththeirCritics?

Limited engagement. One participant reported having had little directcontactwiththeombudsmanwatcherconcernedwithhisorganisation.Henotedthat critical communication often came via social media or through theParliamentary Committee. While this did not detract from the validity ofpeople’scriticismsofombudsmanschemes,healsonotedthattherewasaneedto be mindful of people’s mental health issues and to respond appropriately.Engagingwithonlinecriticsmightactuallyexacerbate theproblemandnotbehelpful in allowing them to move on. Generally, representatives from privatesector ombudsman schemes noted that they had had less engagement withcampaigning groups/ websites and they did not appear to be a particularlypressingissueforthem.Otherparticipantsreportedhavingtriedtoengagewith

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theircriticsbut findingthat itwasdifficult todosoasaresultof theirdiverseandchangingaims.Proactive engagement. One participant noted that his organisation hadmade considerable efforts to engage with its critics, such as through anindependently facilitated seminar andby reconsidering someof the individualcases that had led campaigners to become concerned in the first place. Hecommentedthatitwasbettertoengagesuchgroupsratherthantoignorethemand that their feedback could be valuable, especially if it appeared to becorroboratedbyothersourcesofdataandfeedback.Atthesametime,henotedthat such engagement could give legitimacy to campaigning groups, and couldincreasetheirmembershipifotherserviceusersfeltthattheycouldsuccessfullypursue their case by joining the group. Re-opening individual cases did notnecessarily resolve problems, as often the outcome remained the same andpeoplewouldstillbedisappointed.

Alternativeapproaches.OneparticipantnotedthatthemainwayinwhichengagementwiththecampaigninggrouphappenedwasthroughParliamentaryCommittees.Thegroupwouldmakesubmissionstotheseandtheombudsmanwould then have the opportunity to respond to the points raised and theCommittee could consider all evidence in the round.Thisprocesswas seenashelpfulintermsofmanagingandtakingsomeoftheheatoutofexchangeswiththecampaigninggroup.Anotherparticipantsaidthat–althoughtheactionwasnot taken in response toonlinecritics–hisorganisationhadsetup theirownadvisory panel to get feedback from service users. This involved invitingcomplainants who had had a case dealt with recently to join a forum whichwould then meet to provide the ombudsman with feedback and advice. Themembership of the forum changed every year tomake sure that perspectiveswerefreshandrelevant.Someoftheissuesthatarosefromthisforumincludeda desire to see the ombudsman issue fines against public bodies and makehigher recommendations for financial redress, albeit they did notwant to seethis money coming from public funds. This approach was seen as a way ofensuring that feedback fromuserswasmore representativeandmore currentthanthat,whichmightbeprovidedbyonlinecritics.

WhatInfluencehavetheOmbudsmanWatchersHad?

Limited influence. As noted above, representatives from private sectorombudsman schemes considered that ombudsmanwatcherswerenot amajorissue for them. It appeared that campaignsweremore organised and vocal inrelationtopublicsectorombudsmanschemes.Someparticipantsnotedthattheindividualnatureofmanyoftheconcernsbeingraisedbyombudsmanwatchersmeant that their influencewas always likely to be fairly limited. Ombudsmanschemes have access to a wide range of feedback and perspectives on theirperformance and these would be drawn on to get a more accurate andrepresentative picture of where there were areas for improvement. Oneparticipantnotedthattheombudsmanwatchergroupsappearedtohavelimited

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public support for their concerns and that when public petitions had beeninitiatedthesehadnotattractedsignificantpublicbacking.

Influence in context. Several participants agreed that the influence ofombudsmanwatchers could be significant depending on the context andwaslikely to vary over time. One participant noted that the group criticising hisorganisationwas very organised and used a range of lobbying techniques. Heconsidered that the campaign had been very impressively and professionallyrun.Hesaidthatwhenhehadjoinedtheorganisation,hehad‘googled’itandthefirstresultthatcameupwasthecampaigningsiteratherthantheorganisation’sofficial website. He also noted that when he started there had been a smallprotest outside the building. Another participant noted that her organisationwas concerned about the potential impact of citizens coming across acampaigning site before finding the organisation’s site. She noted that peoplemight be put off complaining evenwhere the organisation could have helpedthem.

One participant said that the campaigning group concerned with theirorganisationhadhadasignificantinfluence,althoughhequestionedwhetheritwouldhavehadaninfluenceifsomeoftheissueshadnotbeencorroboratedbybroaderfeedback.Nonetheless,heconsideredthatallfeedback–especiallyfromthe organisation’s most disappointed users – was useful. Another participantagreedandsaidthatitwasimportanttolistentowhatwasbeingsaid,albeitthatthepointsbeingraisedhadtobeconsideredintermsofhowrepresentativetheywereandhowfartheyrelatedtothecurrentoperationsoftheorganisation.Thiswas echoed by another participant who said that the influence of thecampaigninggroupsmightvarydependingonthewidercontext.Ifthecriticismsofthegroupchimedwithwiderconcerns(forexample,heldbyaParliamentaryCommitteeorotherstakeholders)thentheycouldbeinfluential.However,ifthecriticismsappearedisolatedanddidnotfitwithotherevidenceprovidedeitherby the ombudsman or other stakeholders, then they were unlikely to haveinfluence.

Anotherparticipantalsocommentedon theway inwhichcampaigninggroupshadtriedtoinfluenceParliamentaryCommittees.Shenotedthat,inheropinion,overtimetheCommitteeshadgivenlessweighttoevidencesubmittedbythesegroups, as the ombudsman had been able to demonstrate good performanceusing a wide range of indicators. Several participants emphasised that theinfluence of the websites targeting their ombudsmanwas diminishing, as theissuesrelatedtohistoricalcomplaints,thefeedbackbeingputforwardwasnotup-to-dateandreflectiveofcurrentservicelevels,andsomeofthefeedbackwasnotwell evidencedandcouldbeput forward ina rather critical andattackingway. Finally, while suggesting that the groups had had a limited impact onservice delivery, some participants suggested that they did have an impact intermsof tyingupstaffresourcesatasenior level.Therewasalsoasuggestionthattherewassomeoverlapbetweenunreasonablypersistentcomplainantsandmembers of campaigning groups, and that such complainants could have asignificantnegativeimpactonthewell-beingofombudsmanstaff.

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ConclusionsThis was an exploratory knowledge exchange project and any conclusionsreachedherecanonlybepreliminary.Indeed,ourintentionisnottomakeanyassessment of the validity or otherwise of the critiques put forward byombudsmanwatchersnorofthereasonablenessorotherwiseoftheresponsesby ombudsman schemes. In this conclusion, therefore, the focus is only onidentifying some areas that appear to be ripe for further discussion, research,exploration, and could be used to inform future policy and practicedevelopment.

• Without reaching a view on the substantive points being raised, theombudsmanwatcherswho took part in theworkshops appear to havedeveloped interesting and wide ranging critiques, which generally gobeyondtheconcernsofindividualcomplainants.

• Such critiques may be useful for those interested in the ombudsmaninstitution in twoways.First, theyoffer awindow intohowconsumersandcitizenswhohave turned theirminds toanalysing theombudsmaninstitutionperceive itspotential strengthsandweaknesses.While theseperspectiveswillbeheavily skewedby individualnegativeexperiences,researchers generally do not have access to well informed userperspectivesand,assuch,shouldbeofinterest.

• Secondly,thecritiquesofombudsmanwatchersmayhighlight,asseveralombudsman scheme representative suggested, some importantways inwhichtheombudsmaninstitution ismisunderstoodbythepublic. If theombudsmanwatchersandtheircritiquesdoindeedmisunderstandwhatombudsmanschemesareallabout,this is likelytobethecaseforothercitizensandconsumers.Thequestiontheniswhysuchmisunderstandingariseandwhethersufficienteffortsaremadetohelppeopleunderstandtheombudsmaninstitution.

• A particularly interesting line of criticism related to the impact thatcomplaints systems had on individualswhowere often at a vulnerablepoint in their lives. More generally, the issue of whether complaintsystemsandombudsmanschemessufficientlyaddressedthe issuesthatconsumersandcitizenswantedtoraise–and,thereafter,mettheirneeds–isonethatappearstorequirefurtherthought.Itmaybeaquestionofprovidingbetterpublicinformationaboutwhatcitizencanexpect.Butitmayalsobeaboutaskingmorefundamentalquestionsaboutthedegreetowhichthecurrentsystemhasbeendesignedtoappropriatelymeettheneedsofthoseusingthesystem.

• Other issuesraisedby theombudsmanwatchers, suchas thoserelatingto the proper balance between accountability and independence, theappropriatedegreeofinvestigation,orthequalificationsandexperience

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required of staff, are important ones which will no doubt remain ofinteresttoacademicsengagedinthestudyoftheombudsmaninstitution.Again,this isnottosuggestagreementwiththeircritique,althoughit isnoteworthythatmanyoftheissuesraisedbythesegroupsoflaycitizensandconsumersdotouchimportantandwidelyrecogniseddilemmasforthe ombudsman institution. Thesematters are likely to continue to becontroversial and, perhaps, require a clearer and more coherentlydevelopedpositionamongstthewiderombudsmancommunity.

• In terms of the ombudsman schemes’ responses, it seems evident thatthese kinds of critiques are more important for some schemes thanothers, with a particular split between public and private sectorombudsman schemes. The latter seem to be subject to less proactivecampaigns.

• The influence of ombudsman watchers and the degree to which theyshouldbeengaged (or ignored) is likely to remaina troubling issue forombudsman schemes. There is clearly a risk of privilegingunrepresentative opinions by devoting too much resource toengagement,anddespitethegeneralinterestoftheombudsmanwatcherphenomenonthatwehavesuggestedabove,thevalueofthefeedbackforindividual schemes may be limited by the individual and increasinglyhistoricnatureofsomeoftheissuesraised.

• Itseemsclearthatombudsmanschemesaremorelikelytobemobilisedinto engagingwith ombudsmanwatcherswhere there are other strongexternaldriversandarangeofcorroborativeevidencethat is indicativeof a problem. Some ombudsman schemes had been very proactive interms of engagement, although it is not clear whether, from anombudsman scheme’s perspective, engagement is likely to result inlearningforserviceimprovementorinminimisingnegativepublicity.

• The example of the advisory forum used by one ombudsman schemeappeared to be an effective means of securing detailed and engagedfeedback from users of ombudsman schemes. This approach could behelpful in harnessing user feedback and in trying to get beneath thelimiteddatacollectedinsurveysandfocusgroups.Itmayalsobeawayofexploringfurtherandvalidating/rejectingsomeoftheexternalcritiquesof ombudsman schemes with reference to an expert group of serviceusers.

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Dr. Naomi Creutzfeldt is an ESRC Research Fellow at the University of Oxford and a visiting lecturer at the University of Westminster. Naomi is part of the European Civil Justice Systems team at the Centre for Socio-Legal Studies at the University of Oxford, where she works on her ESRC project ‘trusting the middle-man: impact and legitimacy of ombudsmen’ (http://www.law.ox.ac.uk/projects/Ombudsmen). Chris Gill is a Senior Lecturer in Administrative Justice at Queen Margaret University. Prior to joining the university, he worked for the office of the Scottish Public Services Ombudsman (SPSO) in a variety of roles including investigation, quality assurance, case reviews, and training. His current research focuses on the influence of administrative justice institutions; the roles, functions, and processes of ombudsman schemes; and the use of mediation in high conflict settings.