The core function of public services ombuds is to investigate complaints from individuals about “maladministration” by public bodies which has caused injustice. But ombuds have developed several other important functions designed to improve people’s experiences of public services. For example, as seen in the Council of Europe’s 2019 Venice Principles, ombuds are developing a role ensuring that public bodies do not neglect human rights.
Ombuds do not decide whether a human right has been breached – that is for a court – but ombuds can investigate whether public bodies have adequately considered human rights in their procedures, decision-making and ways of working and make recommendations for both individual redress and how to proactively build human rights into a system.
As part of this trend, Westminster’s Joint Committee on Human Rights (JCHR) published a report in 2022 on whether the UK should have a specific Human Rights Ombudsperson. Though the Committee recommended against establishing an entirely new human rights specific ombud, the report nevertheless recommended that existing ombuds should make greater use of human rights.
The Local Government and Social Care Ombudsman (LGSCO) is one of England’s biggest public services ombuds, which hears complaints about local government and social care providers in England. Local government services include critical socio-economic human rights, such as adult social care, support for children with special educational needs and disabilities (SEND), schooling, libraries, and homelessness and housing support.
To investigate how far the LGSCO is able to promote human rights in line with the emerging understanding of ombuds’ role and to learn lessons for UK ombuds more broadly, in the latest issue of the Journal of Social Welfare and Family Law, I published an article about how the LGSCO uses the Human Rights Act 1998 (HRA) and the Equality Act 2010 (EA) – the UK’s core human rights statutes – and several international human rights instruments, such as the UN Convention on the Rights of the Child (UNCRC), the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Why should ombuds care about human rights?
There are many reasons why it is important to ensure that ombuds use human rights instruments effectively.
One is that if we want to cultivate the ideal of a “human rights culture” across the public sector, where rights are understood, considered and respected at all levels, human rights cannot exclusively be for judges. They must be thought about, prioritised and used by as many public bodies as possible – both on the frontline and in accountability institutions. Ombuds are critical tools for helping ensure that public bodies build human rights into the core of their thinking, training, guidance, procedures and working practices.
A second is that ombuds can often more easily investigate systemic problems than courts. Some – like the Northern Ireland Public Services Ombudsman (NIPSO) – have “own initiative powers”, whereby they do not need to wait for a complaint from an individual but can proactively investigate problems they see arising in the public sector. This means that individuals do not need to bear the burden of challenging a discriminatory system alone – an ombud with powers and heft can do that for them. As the JCHR put it at para. 33 of their report: “Ombuds play an important role in upholding human rights and identifying where there may be systemic issues affecting individuals’ rights.”
A third is that, even ombuds without own initiative powers can make recommendations well beyond the remedies available from a court. An ombud can recommend financial compensation which is rare through judicial review, for example, or make wider systemic recommendations such as that the public body should work with the ombud to devise a human rights training programme and collect data about what effect this is having in practice.
Four is the very pragmatic point that, unlike courts, ombuds are free to access, enabling individuals to promote the protection of their human rights without expensive court litigation.
As such, ombuds have a range of important tools and virtues that could be built on to improve the promotion and protection of human rights.
How are ombuds using human rights now?
So far as the LGSCO is concerned, the findings of my research indicate that use of the HRA, EA and international human rights instruments remains quantitatively small. In 2021-22, for example, the LGSCO referred to the HRA and EA in only 6.4% of detailed investigations. Nevertheless, the LGSCO is rapidly expanding its use of human rights instruments. There were no identifiable references to either the HRA or EA before 2017, for instance, but this increased to 80 and 191 references in 2023 respectively.
This is happening in consequence of conscious effort from the LGSCO. In 2022 it published two reports making specific reference to the importance of using the HRA and EA called Equal Access: Getting it right for people with disabilities and Equal Justice: Learning lessons from complaints about people’s human rights. Both consider how human rights and equality can be built into decisions from the start, including suggested good practice – such as record-keeping of what reasonable adjustments were made for individuals and investing in good quality human rights training for decision-making staff.
When there is a reference to either the HRA or EA, the data suggests that the complaint upholding rate following a detailed investigation can be higher than average. For example, where there was a reference to the HRA in 2022, the upholding rate was 83%, and where there was a reference to the EA the upholding rate was 81%, compared with an average upholding rate in 2021-22 of 66%. This could be down to a range of factors – such as the types of cases that the HRA and EA tend to be used in – but these are positive initial findings, suggesting that human rights are playing a protective, progressive role in the LGSCO’s decisions.
Ultimately, my article suggests that the LGSCO uses human rights instruments a tool to achieve several rights-protective outcomes, including as a:
Tool to promote systemic cultural change: The LGSCO uses human rights instruments to raise awareness of the value of human rights and to encourage public bodies to embed human rights from end-to-end across their activities and decisions.
In its 2022 Equal Justice report, for example, the LGSCO notes that: “We…use the human stories from our casework to drive improvements to the way organisations are run. This helps prevent similar mistakes from happening again. If we are concerned about an issue being widespread, we will share our findings with the wider regulatory sector…so that individual complaints can help change systems for everyone.”
Tool to recognise the seriousness of maladministration: Human rights instruments are emerging as new tools which allow the LGSCO to draw attention to the seriousness of a public body’s failings – that the maladministration was so serious that it neglected a person’s fundamental human rights.
In 2021, for example, in relation to a complaint from a man with dementia living in a care home, the LGSCO determined that: “Nottinghamshire County Council left a man in a care home away from his family for five months, without having any regard for his basic human rights, a Local Government and Social Care Ombudsman investigation has found.” This was due to the Council’s failure to carry out an updated assessment or review.
Tool to identify or strengthen a remedial measure: As well as identifying appropriate redress, these instruments can be used to strengthen the recommended action. For example, in a complaint related to overcrowded housing in Bromley cited on the LGSCO’s website, the LGSCO uplifted its financial recommendation in response to the seriousness of the conditions imposed on the family:
pay £6,000 for the family remaining in overcrowded accommodation from the time of Mr B’s first approach in August 2019 until November 2020. This is calculated at a rate of £400 a month. This is slightly higher than the usual rate we would recommend and reflects the degree of overcrowding and the extended period this continued.
What more can ombuds do with human rights?
In its 2022 report, the JCHR recommended several actions to extend ombuds’ human rights function, including greater collaboration with the Equality and Human Rights Commission (EHRC) and legislative reforms making express reference to human rights in ombuds’ statutes.
My recommendations are designed to complement these. It is important to be ambitious but realistic. Ombuds have several functions already, limited resources, a growing number of complaints and face heightened public expectations. Ombuds cannot do everything on human rights but that does not mean that they should do nothing. Organic expansion that can be tested and adjusted is the wisest course for now.
1. Collect data on how human rights instruments are used:
Ombuds should proactively collect data on how caseworkers use the HRA, EA and international human rights instruments in investigations and publish this data in each annual report. In time as the use of human rights instruments increases, data should be collected to shed light on all stages of the system, including how human rights affected a decision whether to investigate the complaint; how the complaint was investigated; the centrality of human rights to the finding of maladministration; and the remedial recommendation.
However, initially this data should basic quantitative questions such as: (a) the number of references to human rights instruments each year; (b) the human rights or provisions identified; (c) the complaint upholding rate where human rights instruments were cited; (d) the complaint area; and (e) whether it was a complainant who raised the human right in their complaint or a caseworker or both. This data will give ombuds, researchers and the public an insight into how human rights are being used by ombuds and to what effect.
So far as initial qualitative data, a priority should be developing a system to identify how central the human rights issue was to upholding a complaint – was it the sole or decisive reason for a finding of maladministration, or was it used to reinforce other findings? Was the human right less relevant to the finding of maladministration and more relevant to the remedial recommendation made? This data could form the basis of qualitative observations in each annual report.
2. Develop a more recognisable and consistent “human rights value add”:
Ombuds should develop training and guidance to help caseworkers identify their “human rights value add”, or what human rights are adding that other tools cannot. This might be where the consequences have been particularly intrusive or serious, where human rights would help amplify the findings as a systemic learning point, or where thinking about something as a human right would add a new dimension or urgency to the problem. Human rights should be doing something practical rather than operating as a rhetorical device.
However, not every problem is best addressed as a human rights problem. As the PHSO demonstrated in its recent report related to maladministration in the DWP’s communication of changes in women’s state pension age, non-rights frameworks such as the Principles of Good Administration and Principles of Good Complaint Handling are critical instruments of accountability. Human rights should be one tool for ombuds, not their whole toolbox.
As a workable starting point for training and guidance, ombuds should use the data gathered for each annual report and identify the top two or three human rights that arise in their casework. For the LGSCO, for example, these were the right to respect for private and family life and the prohibition of inhuman and degrading treatment.
3. Focus on what they can do with human rights that other bodies cannot:
Ombuds are not just replicating the work of courts but adding something valuable to a public human rights culture. While expectations management is important, ombuds should prioritise what they can do rather than what they cannot. A strengths-based approach rather than a limitations-based mindset is important if ombuds are to develop a distinctive human rights voice.
As well as distinguishing themselves from courts, this also means that ombuds should distinguish their function from human rights bodies such as the EHRC. Unlike the EHRC, for example, ombuds have sector-specific expertise and heft – the LGSCO in local government, for example, and the PHSO in the English health service. Ombuds should use this sector-awareness to develop detailed, practical knowledge of how human rights are and could be used in the decision-making, planning, procedures, training, and recruitment in that sector, especially to address systemic problems.
4. Identify provisions of international instruments most targeted to deficits of accountability:
For those ombuds, like the LGSCO, which have developed an emergent human rights practice, they should consider how international human rights instruments could push the boundaries of their work even further. These instruments may not be legally binding but could be used as important guides for good practice.
Ombuds should be targeted and strategic in their use of international instruments. If the data demonstrates cause for concern in relation to disabled people’s right to mobility and personal independence, for example, ombuds could highlight to public bodies the importance of Articles 19 and 20 on living independently and in the community and personal mobility from the International Convention on the Rights of Persons with Disabilities (ICRPD), including the Committee’s General Comments which are instructive on what these Articles require.
Public services ombuds are doing exciting, progressive work on human rights and they should have the confidence and imagination to take this even further. Given their sectoral expertise, broad remedial discretion, and comparative accessibility, ombuds are in an important and in some respects unique position to improve the centrality of human rights in public sector working practices for the benefit of people who need this most. This should involve developing a distinctive ombuds vision of human rights, focused on what they add and complement. This need not lead to disproportionate effort if done in a data-led, strategic way and could lead to significant systemic improvements in the promotion of essential human rights.
Lee Marsons is a Senior Researcher at the Public Law Project
Essex CAJI 
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