A human rights based approach: for ombudsman schemes

By taking a human rights based approach, ombudsman schemes can put the rights of the people they serve at the heart of their work.

The approach ensures that ombudsmen protect individuals and help the organisations they hold to account apply the principles, values and standards of human rights effectively.

The Human Rights Act applies to:

• all public authorities, and
• all other bodies, whether public or private, performing public functions

Public authorities like NHS hospitals or the police must follow the Human Rights Act in everything they do. This also includes the private aspects of their business, like making employment contracts. Private organisations or charities only have to follow the Human Rights Act when they carry out their public functions.

Whether directly or indirectly, every ombudsman aims to protect the human rights of individuals. Ombudsman schemes investigate maladministration, and look for remedies when there is injustice because of it.

Maladministration can be a lack of regard for human rights. Injustice because of maladministration may also be because of a failure to uphold human rights. In both instances, reference to human rights can be a powerful way to articulate both injustice and maladministration.

A human rights based approach helps case handlers to decide whether to accept a complaint, investigate it, and report their conclusions. It helps them to identify:

• when and which human rights are relevant to a complaint
• the human rights obligations of organisations in a complaint
• where organisations have not fulfilled their human rights obligations to complainants

Ombudsman schemes want to see justice done and to put matters right when things have gone wrong. A human rights based approach ensures that policies, processes and actions are shaped to respect, protect and fulfil human rights.

A human rights based approach puts the individual and his or her rights at the centre of the process.

Assessing a complaint

In assessing a complaint, you should consider whether the organisation acted in line with the law and respected the individual’s rights.

First establish the facts of the complaint:

• think about the complainant’s experience
• understand the facts from their point of view
• check if they talked about fairness, respect, equality, dignity or autonomy (FREDA values)
• ask yourself if their voice has been heard
• find out if they think their concerns were addressed, answered and remedied adequately by the organisation

Without drawing inferences from the complaint, you should establish if human rights are relevant to the case. You can search potentially relevant human rights by sector and topic. Sometimes human rights issues are obvious; sometimes the complainant thinks they are relevant, but you do not.

You should flag human rights issues at an early stage, and make a note if your assessment differs from the complainant’s views.

If human rights are relevant, you can then identify the policy framework that the service provider should have shown regard for.

Aside from this, a complaint will have to meet all the statutory requirements to proceed to investigation.

Investigating a complaint

When a complaint has been accepted for investigation, you should seek a response to each of the issues from the organisation concerned.

This could include documentary evidence, such as care plans, medical records, relevant correspondence, and copies of the organisation’s procedures, policies and guidance.

You may also want to consider the organisation’s:

• leadership and commitment to human rights
• staff training and monitoring in relation to human rights policies and guidance
• prioritisation of resources towards the most vulnerable
• understanding of human rights in practice
• consideration of any conflicting rights
• consideration of justification and proportionality in limiting a right

If the evidence does not show the organisation has taken due consideration of salient human rights features of the case, such as personal circumstances or vulnerability, personal wishes, respect, dignity, and autonomy, you may need to go back to the organisation and ask more specifically about how they gave regard to the complainant’s human rights.

You may also need to refer to an independent expert to assess technical or medical evidence or the law.

A lack of evidence showing an organisation’s regard for human rights could be because of one of three reasons:

• human rights were not properly integrated into its policies, procedures or guidance
• it did not adequately follow its own policies, procedures or guidance
• its policies and practice were not properly reflected in its documentation

Analysing and reporting

You could ask yourself:

• what the human rights obligations of the service provider were
• how well they met those obligations
• why it failed to meet any obligations
• what the impact of that failure was
• whether there were conflicting rights at play and how the service provider dealt with that
• whether the right was a limited right
• whether the service provider was justified and proportionate in limiting the right

Once you have all the information, you should decide whether there has been maladministration or injustice. You should ask yourself:

• if problems could have been avoided or prevented
• how policies and procedures could be improved
• what the impact on the complainant has been
• how the matter could be put right

Conclusion and recommendations

A human rights based approach puts the complainant’s experience at the centre when formulating a remedy.

If human rights have not been respected, this should be stated clearly in your conclusion and recommendations. The service provider should be made clearly aware what its obligations are under each relevant right, and what it needs to do fulfil them.

You should also emphasise that a determination of maladministration was because of the failure to show regard for human rights.

Complaints made on someone’s behalf

Sometimes a complaint is made on someone’s behalf, meaning the complainant is not the same as the ‘aggrieved person’ (the individual who is the subject of the complaint). Reasons this might happen include:

• the aggrieved person is deceased
• the aggrieved person is a baby or child
• the complainant is a parent or guardian who believes they are better placed to make the complaint
• raising a complaint would be too stressful for the aggrieved person

A human rights based approach demands sensitivity in handling these cases, because of the possibility that the complaint will bring further difficulty and stress to the aggrieved person. You must also reassure the complainant that his or her integrity is not under question and concerns not being ignored.

It also demands that every reasonable effort is made to communicate directly with the aggrieved person whenever possible, ensuring that you have all the information around the complaint. If the complaint is upheld it will also help you formulate the remedy and recommendations.

You should:

• discuss with complainant the possibility of talking to the aggrieved person to find out if it is appropriate,
• find out by what means contact might be possible and most appropriate (such as by writing, telephone or in person)
• ask whether special measures are needed (for example, an interpreter or signer)
• assure the complainant the purpose of contact would be to ensure the experience of the aggrieved person is at the heart of the case and the remedy (if appropriate)
• record what has been discussed and agreed

Sometimes, contact with the aggrieved will not be possible or advisable. It should be avoided if it would bring further distress or harm.

The Northern Ireland Public Services Ombudsman (NIPSO) has developed a tool to help its case handlers take a human rights based approach when assessing complaints.

Download the NIPSO human rights based approach complaints assessment screening tool.