August 2016 – Redress – Part One
What happens at the end of an investigation if the Ombudsman finds in my favour?
What is redress, does it just mean compensation?
What type of redress will I be given?
Can the Ombudsman pay me compensation?
Can the Ombudsman force the Services to follow her recommendations?
These are all questions that my team are asked on a regular basis and I hope to address all of them, and a few more, in a two-part blog for August which looks at the issue of redress. This first part will look at the broad issue of redress – what it is and what types of redress I can, and can’t, recommend.
Individuals going through the Ombudsman investigation process, or considering it, want to know what difference my investigation will have and what I can do for them. Specifically they often want to know what will happen if I find in their favour – how will the problem be fixed, what redress will they get?
As I have written before, the findings my Office makes in any investigation are binding on all parties. Where we find in favour of the complainant, even partially, I will make recommendations for redress. Although my recommendations aren’t binding, they cannot be ignored and the Services must report on any recommendations they do not adopt.
So what is redress? Redress is a remedy. It is something that is given to an individual that has been wronged in order to fix the problem. The purpose of redress is to put the individual back in the position they would have been had the wrong not occurred, although that is not always possible.
In some complaints I might recommend more than one form of redress if there is more than one issue, or where one form of redress doesn’t address all the issues. The type of redress I can recommend will fall into one of two broad categories:
Action based redress
|The name of this speaks for itself – any form of redress that requires a specific and direct action to take place falls into this category. This could include, but is not limited to:
What I can’t recommend:
Disciplinary action. This is an issue for the Service concerned to consider following my report.
|This type of redress can fall into one of two categories
Compensation for a direct financial loss or the monetary value of a lost service e.g. payments of allowance owed
Compensation for a non-financial loss e.g. distress
If the redress I recommend falls into the category of direct compensation or an action based redress this will be fairly straightforward. Any redress, including direct compensation, can only be actioned by the Services themselves. Following a report, the Service concerned will consider the recommendation I have made and implement it, unless there is good reason that the redress cannot be granted.
Indirect compensation on the other hand is much more complicated. This type of compensation is for a non-financial loss. It covers things such as hurt feelings, distress or time and trouble in bringing a complaint. Payment of this type of compensation is complicated for the following reasons
- I can’t pay this compensation directly. I do not have a pot of money that I can use to pay people this type of compensation, nor should I. Best practice in complaint handling is that the organisation that has made a mistake is responsible for paying compensation. This means that if compensation is to be paid, that is the responsibility of the Service concerned and not my office.
- The Service concerned must determine the recommended amount of compensation. Although I might provide guidance on what factors should be considered when calculating the amount of compensation, it is for the Service to recommend the actual amount.
- Her Majesty’s Treasury (HMT) must approve any recommendation. When compensation is paid by a public body the money involved is public money and there are very strict rules that govern how public money should be spent. Unlike direct compensation, payments of indirect compensation are considered “novel and contentious”. This means that the Services do not have the authority to make the payment themselves. Once they have determined an amount of compensation, they must send that recommendation to HMT for approval. Therefore it is HMT that has the final say in whether any compensation should be paid and how much. HMT could even reduce the amount of compensation recommended by the Service to £0.
Of course this doesn’t mean that I would never recommend such compensation be paid. It only means that I would need to have strong grounds to make a recommendation in the first place and that where I do it will be followed by a lengthy process which may not result in any money being awarded.While these are the broad types of redress I can recommend, it doesn’t mean that I will recommend the type of redress that an individual has specifically asked for. To learn the answer to the question “Why didn’t the Ombudsman give me the redress I asked for” and the factors I consider when deciding what redress to recommend, be sure to read the second part of my blog at the end of the month.