Have you ever wanted to complain about the service you have received, but were unsure of who to complain to? This is not an uncommon problem. Many people experience objectionable treatment by businesses and are often left feeling that they have no recourse. This is precisely when Ombudsmen can become very useful. However a significant number of people are unfamiliar with the rules that apply to their use, or the powers that are available to them.

Here we provide a guide on ombudsmen: who they are; what they do; and when you can use them.

WHAT WILL THIS GUIDE COVER?    

• The procedures for contacting Ombudsmen
• The role that Ombudsmen perform
• The powers available to Ombudsmen

WHAT QUESTIONS WILL THIS GUIDE ANSWER?

• What is an Ombudsman?
• What can they do?
• How do I contact them?
• When do I contact them?

Who are Ombudsmen?

The best way to think of Ombudsmen, or ‘Commissioners’as they are sometimes known, is as a third party in a relationship between a service user and a provider. They are designed to act as an independent party that people can complain to, when they have received some kind of objectionable service or treatment from a particular organisation.

It is important to understand that Ombudsmen are charged with a very important duty in handling complaints. As a result, in order to be an Ombudsman, an organisation must meet certain criteria that are laid down by the Ombudsman Association. These are:

• Independence –Ombudsmen must operate entirely separately from those that they are empowered to investigate.
• Fairness –Ombudsmen in investigating a complaint must do so in a fair and justiciable manner.
• Effectiveness –The organisation must be appropriately staffed, and not require the consent of any other party before it looks into a complaint.
• Openness and transparency –Ombudsmen should make their remit known to the public, and provide information on what powers they have available to them.
• Accountability –The organisation and its staff should be able to be held accountable for the decisions that it makes.

It is important to be aware that most ombudsmen are created by the government through legislation, which will specify what the ombudsman can/ cannot do and who they have been created to regulate/ investigate. As a result most ombudsmen will meet these criteria.

What can they do?

Where an Ombudsman receives a complaint regarding the activities of a particular organisation, they are empowered to investigate this complaint. These complaints will in most cases refer to a situation where something has been done badly or unfairly, causing someone else to suffer as a result. This is sometimes known as ‘maladministration’. Examples include:

• Rudeness;
• Failure to follow the relevant procedures; and
• Knowingly giving information/ advice that is inaccurate or misleading

It is very important that you understand that there is a restriction placed on precisely what an Ombudsman can consider in terms of a complaint. Contrary to what many people believe, an Ombudsman is unable to investigate and rule on the action taken by an organisation, or the decision it takes. Instead, it is empowered to investigate and rule on the way that this decision or action was reached.

In agreeing to investigate a complaint an ombudsman has one of two options at its disposal:

• It could decide that your complaint has merit, and uphold the complaint that you made against the organisation. If this is the case they will normally issue a report to you detailing their findings, which will also be provided to the relevant government department or regulatory body. Depending on the particulars of a situation, an Ombudsman could require that you are issued with an apology, or that you are granted some level of financial compensation. In addition to this, Ombudsman can also ask that there is a change in how a particular organisation works, or identify instances where improvements can be made; or
• It may not be satisfied that the complaint against the company is valid, and may refuse to uphold your claim(s).

It is important to understand that the decisions of an Ombudsman are not the same as the decisions of courts. They are not legally enforceable. However their decisions in respect of complaints will in most cases be passed on to regulators, who will have the power to enforce these decisions.

If an Ombudsman is unable to find any merit to your complaint, then their role will simply end. In those circumstances it would still be open to you to take legal action against the organisation that you had originally complained about. If your complaint concerns an organisation in the private sector, then a court could look at your complaint without any need to refer to the decision of the Ombudsman. Alternatively, if your complaint concerned an organisation in the public sector, the courts could only deal with your complaint by way of a Judicial Review of the Ombudsman’s decision. Regardless as to the avenue that you take, the process can be quite complicated.

Moreover it is important to understand that, while the services provided by Ombudsmen are free to members of the public, the courts are not. You will likely need to engage an experienced solicitor to handle your case, which may take a considerable amount of time to settle. In those cases you may be required to pay a significant legal bill. Furthermore, your financial outgoings will be higher still, should the court find itself unable to rule in your favour.

You should also be aware that unlike the decisions of courts, there is no appeal for a decision made by an Ombudsman. Their decision is final. You also have no control over the investigate approach that the Ombudsman decides to take. Unlike in court based dispute resolution, you will not be able to plan how you wish to present your case across a lengthy case. Another important fact to keep in mind is that while the Ombudsman may decide to investigate your complaint, it is not accurate to say that they are ‘acting’for you. In fact they do not act in your interests at all, but rather those of all people that come into contact with the particular organisation.

How do I contact them?

You must understand that there are Ombudsmen for almost every sector of business.

Some of the most well-known Ombudsmen include:

1. The Parliamentary and Health Service Ombudsman –this organisation deals specifically with complaints concerning government departments, and the National Health Service (NHS). In Scotland it is called the Scottish Public Services Ombudsman.
2. The Financial Ombudsman Service –this body has responsibility for investigating organisations that are authorised by the Financial Conduct Authority (FCA). These organisations tend to include banks, insurance bodies and pension providers.
3. The Legal Ombudsman - this organisation deals specifically with complaints concerning the legal profession. In Scotland it is known as the Scottish Legal Complaints Commission, but both bodies share the same responsibility.
4. The European Ombudsman –this body is responsible for handling any, and all complaints concerning the work of the European institutions e.g. the European Commission and the Court of Justice of the European Union.

Each of these organisations, along with the many others that exist, will in most cases have their own procedures for contacting them. However in the majority of cases they will require that you provide them with the following pieces of information:

• Your name and address;
• The name and address of the organisation that you are complaining about;
• The substance of your complaint, in terms of what the organisation in question did or failed to do;
• What impact the actions of the organisation had on you;
• Details of what steps you have taken to have your complaint addressed (including copies of emails or other paperwork that has passed between both parties; and
• Suggestions in terms of what you would like the organisation to do e.g. make an apology, change their practice or issue some level of financial compensation.

You should take some time to consider precisely what the substance of your complaint is, and to which Ombudsman you should bring your complaint to. If a particular Ombudsman is not convinced that it will be able to investigate your complaint, they will normally direct you to the appropriate organisation that will be able to meet your needs.

While in the majority of cases approaching an Ombudsman will be free, there may be instances where you incur some financial loss in brining your complaint to their attention e.g. public transport expenses. If this is the case, you should be able to claim this back from them.

If you are wary of approaching an Ombudsman, it is possible for you to instruct a third party to act on your behalf. However if this is the case, you must provide written evidence to the Ombudsman that you consent to their handling your complaint on your behalf.

When do I contact them?

Other than an understanding of what Ombudsmen do, it is vital that you know when you are to contact them with your complaint about an organisation. In almost all cases, an Ombudsman will not be able to investigate your complaint until after you have first raised it with the organisation concerned through their complaints procedure.

You should be very clear in your dealings with the organisation in question, and follow their complaints procedure very carefully. If the organisation does not resolve your complaint to your satisfaction, then you would be able to ask for a letter to be issued by the organisation to the ombudsman in question, stating that the matter cannot be resolved. This is sometimes known as a ‘letter of deadlock’.

Alternatively, if your complaint is not dealt with within a reasonable time after your having contacted the organisation in question e.g. no less than 14 days, then you may be able to approach the Ombudsman.

The important point to understand about Ombudsmen is that they share many of the characteristics of courts. They act as independent, impartial adjudicators that individuals can turn to when they fell that they have received objectionable treatment from an organisation. Also, like the courts, it is required that individuals who have a complaint against an organisation first attempt to settle matters with the body concerned. This is to allow both parties to attempt to resolve the matter through the processes that have already been set up. It is only if this proves unsuccessful that an Ombudsman will entertain a complaint. While their services are free, the decisions that they make in respect of your complaint will not be able to be relied upon in a court. In most cases organisations that have an Ombudsman’s ruling against them will have regard for their recommendations –organisations will, in the majority of cases, seek to avoid negative PR where possible.

You should also keep in mind that an Ombudsman may not always agree to investigate a complaint. For instance if your complaint has already been or is the subject of legal proceedings, it is unlikely that they will investigate it. Furthermore if an Ombudsman believes that it is not best placed to investigate your complaint, and that a court or tribunal is, it will likely inform you of this.

Key points

• Ombudsman are independent bodies empowered to investigate complaints of unsatisfactory treatment of individuals by organisations;
• There are a huge number of Ombudsman operating in the UK across a variety of sectors, including finance, the law and government;
• An Ombudsman will only become involved in a dispute between parties when it is satisfied that the necessary complaints procedures have already been exhausted;
• The use of an Ombudsman is free;
• The decisions of Ombudsman, while final and without appeal, are not legally enforceable;
• If you are not satisfied with the decision of an Ombudsman, you can still attempt to have your complaint dealt with by the courts.

Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent legal advice on matters that affect you.