States complaints shake-up recommends compensation

Tuesday 06 November 2018

Binding decisions, and financial compensation, are just two of the recommendations being made to tighten up the process for islanders to take action if they believe they have been wronged by the States.

They come as part of a shake-up of the current system in which people can take issues to the States Complaints Panel, but the relevant Minister can then just reject the Panel's conclusions.

Now, the Jersey Law Commission has investigated what changes should be made, as part of a report on creating a Public Services Ombudsman.

The States agreed in principle to set up an Ombudsman to hear complaints about maladministration by States bodies in March 2017, subject to further research. The Jersey Law Commission carried out the research and has published a 237-page report containing options for policy makers and recommendations.

Pictured: Andrew Le Sueur led the research on 'Designing a Public Services Ombudsman for Jersey.'

Penned by Andrew Le Sueur, a Professor of Constitutional Justice at the University of Essex who left the Commission in October, the report recommends that the Ombudsman should be able to carry out a wider range of functions that the Complaints Panel. The report says: “The Ombudsman scheme’s remit should be as broad as possible (consistent with its focus on public services). 

“The allocation of decision-making responsibilities and functions to different public bodies under Laws passed by the States Assembly or customary law – to Ministers, Parishes, corporate entities, arm’s length bodies, etc – has taken place over many years with little regard to any overall pattern.”

Pictured: The Jersey Law Commission says that recommendations from the ombudsman should be binding.

The report also recommends that the Ombudsman should be able to make sure the complainant receives financial compensation following a complainant. Compensation would be awarded if they have lost either money or non-monetary benefits, as well as in recognition of the “avoidable distress, harm, risk or other unfair impact” that the public body’s conduct caused. 

The report notes that in the UK, recommendations for compensation usually range between £50 and £150 and that it is rare for them to go over £1,000. If the public body fails to pay, the report recommends that the individual should be able to go to court to enforce the recommendation.

The Law Commission's report however notes that giving the Ombudsman powers to make recommendations for financial compensation, or systematic improvement within the department complained against, will mean nothing if the law does not make sure they are binding. 

Pictured: Deputies Kevin Lewis and John Young, the Minister for Infrastructure and the Environment respectively, have recently rejected the recommendations of the Complaints Panel.

The Law Commission highlighted in October 2017 that of the 11 complaints that lead to hearings and responses to reports by Ministers between January 2013 and October 2017, eight cases had been upheld by the Panel. However, a Minister rejected the main findings and recommendations in at least five of those cases.

Recent cases include the Infrastructure Minister, Deputy Kevin Lewis, rejecting the recommendations that Alan Luce Alan Luce and Julian should be compensated for costs incurred when they tried to sell their homes at Grève d’Azette. They had been forced to pay more than £50,000 in total to the States in order to sell their coastal properties.

Last month, the Minister for the Environment, Deputy John Young, rejected the findings of the Complaints Panel report which found that the Planning Department had acted in an “oppressive and improperly discriminatory way" against Ivor Barette in the processing of his planning applciations for Broughton Lodge Farm in St. Mary. They had recommended, in addition to improved procedure, that Mr Barette receive a written apology.

The Law Commission says that the pattern of frequent rejection of the Complaint Panel’s decisions would call into question the value of creating an Ombudsman. They suggest that the Ombudsman be able to make a second report if the public body does not implement their recommendations and that this report should be brought to the attention of the States Assembly, at the expense of the public body.

Pictured: The Jersey Law Commission says the Ombudsman could possibly work across Jersey and Guernsey.

With a wider scope of activity than the current Complaints Panel, and the ability to launch their own-initiative investigations, the Law Commission says the new Ombudsman would be costlier to run, with annual running costs of about £340,000. This figure could actually be higher if the Ombudsman was to be operate across Jersey and Guernsey, as the report says it would be possible to do.

 The Law Commission’s report will now be considered by Ministers and the States Assembly as whole before a decision is made on the role and remit of the Ombudsman. Mr Le Sueur said: “From cradle to grave, individuals and businesses in the Island are subject to administrative decisions taken by Ministers, civil servants, Parishes and other public authorities. When things go wrong, it’s important that there are user-friendly ways of putting them right. 

“An Ombudsman scheme will improve the ability of people in Jersey to have disputes with the States of Jersey, Parishes and other organisations resolved by an independent and impartial body.”