Hansard

The amendments in this group relate to the role of the Scottish Public Services Ombudsman in undertaking independent review of local authority decisions on welfare funds applications. The bill as introduced had few provisions relating to the role of the ombudsman. It was always our intention to come back at stage 2 with amendments following discussions with the ombudsman on how best we could set out its role in undertaking independent review. Amendments 4, 6, 7, 11, 13 and 16 do not alter the content or policy intent of the bill, but they are necessary to reflect structural changes to accommodate the substantive amendments that set out the specifics of the ombudsman’s role. Amendment 21 is a technical amendment that specifies the definition of the ombudsman for the purposes of the bill. Turning to the substantive amendments regarding the ombudsman, amendment 15 creates a right to review, by the ombudsman, of a local authority decision on a welfare funds application. It sets out when, how and by whom an application can be made, and the timescales in which an application should be made. It provides for the ombudsman to determine whether an application for independent review has been made, and to make exceptions to the time bar on applying for independent review. Amendment 17 requires the ombudsman to prepare a statement of practice setting out the approach that he intends to take in carrying out the review function under the bill. He must consult local authorities, and other persons as he considers appropriate, before preparing and publishing such a statement, and if any revisions are to be made to the statement of practice. The ombudsman already has the power to consider a complaint about the way in which a local authority has dealt with an application. The new power to review that application will not change that. The ombudsman already has extensive powers to gather evidence in relation to complaints. Amendment 18 provides, amongst other things, that broadly the same powers will apply to reviews. That is important because the legislation means that the ombudsman will have two jurisdictions over the welfare funds. The ombudsman will be able to deal with complaints and reviews. In practical terms, if the ombudsman obtained information in relation to a review but did not have that power, it would be for him to use that information in relation to a complaint about the same application or vice versa. That would be particularly problematic if the same document contained evidence relevant to a complaint and evidence relevant to a review, or if the same people were required to give evidence in relation to both a complaint and a review. On the theme of matching the ombudsman’s current powers, amendment 19 replicates, for reviews of welfare funds decisions, the power that he has in the Scottish Public Services Ombudsman Act 2002, in relation to obstruction and contempt by people providing information in connection with a complaint investigation. Amendment 18 also gives the ombudsman powers to hold oral hearings, and to make rules about when an oral hearing would be appropriate and about the procedure to be followed. The ombudsman would have powers to administer oaths at such hearings. Where the ombudsman makes rules in relation to hearings, he must consult local authorities and any other persons he considers appropriate, and must subsequently publish those rules. Although hearings are likely to be extremely rare, it is important that that option is available. We have been advised by the ombudsman that the scheme does not need to comply with European Court of Human Rights requirements, but ensuring that hearings are available when needed, and also that rules are made about them, will ensure that the legislation meets that standard. Amendment 20 requires the ombudsman to notify the applicant and the local authority of the result of a review. It also provides that the ombudsman may publish a report of the review. It does not require that in every case, but for unusual cases it will be beneficial for stakeholders to be aware of the ombudsman’s view. The section also places limits on what information the ombudsman can publish, in order to protect the identity of those involved. 11:15 Amendment 22 provides for consequential amendments to the Scottish Public Services Ombudsman Act 2002, to ensure read-across between the powers that the ombudsman will obtain under the bill and the powers that the ombudsman currently has under the 2002 act. That includes powers relating to obstruction, defamation, reporting, disclosure of information by the ombudsman and confidentiality. Amendment 22 also contains provisions on confidentiality, which will allow the ombudsman to use information that is gathered in consideration of a review in order to inform the investigation of a complaint and vice versa. The final part of the amendment updates the interpretation provision in the 2002 act as a result of the changes that are made to that act by the bill. Amendment 22 reduces the risk of there being a situation in which the ombudsman holds information but cannot use it and, indeed, needs to try to make a decision on the basis that it has not seen the information. It also means that local authorities have some clarity too, as they will know that a request from the ombudsman for information has the same status whether it is about a complaint or a review. Although it is important for practical purposes to ensure that the information-gathering provisions are the same, local authorities should be reassured that the requirements in relation to what the ombudsman can take complaints about, and ensuring that local authorities have a chance to respond to complaints before a final decision is made, will remain. I was pleased to note that during stage 1 proceedings there was support for the ombudsman taking on the independent review function for welfare funds decisions. Accordingly, I trust that committee members will support the amendments. I move amendment 4.