They don't want money, they want an apology Guest: Rob Behrens

IE: Hello and, welcome back to another episode of We Can Find A Way. This time I opened the episode with a direct quote from my guest, Sir Rob Behrens. This is a podcast about conflict resolution and my name is Idil Elveris, and monthly I release a new episode. Actually, this episode is important because it's the 85th episode of this podcast, which pioneers a culture change in handling conflict. Because it is everywhere. We Can Find A Way is also the only bilingual podcast that addresses conflict on an international scale. Most of the time the episodes are in English, but three, four times per year, I also try to do them in Turkish. In this episode, I spoke with Sir Rob Behrens, who served twice as an Ombudsperson in the UK and has an amazing career, about which I will speak at the end of this program. We discussed with Rob the fractured structure of the ombuds system in the country, its strengths and weaknesses, as well as the significant cases they handled as parliamentary and health ombuds. He also explained his Radio Ombuds initiative. Let me now move to our interview that took place on the 23 September 2024.

Thanks for agreeing to talk to me, Sir Rob Behrens. Can you please start talking about why we have so many ombuds persons in the UK, even in sectors like housing, furniture or rail transport, even automotive, etcetera?

RB: Well, that's a very good question and it's lovely to be with you. There are two answers to your question. The first answer is that, the ombudsman plays a vital constitutional role in promoting administrative justice in nation states. The idea that you should have fifteen or sixteen different onboard schemes is, in my view, a constitutional nonsense. It makes no sense. It's not efficient, it's not effective. And for the last ten years, I've been arguing for a change to integrate the key schemes so that there is a joined up approach to resolving people's complaints.

So, if I could give you an example: in United Kingdom, there's a very close connection between health, on the one hand, provided by a lot of public hospitals, and social care, on the other hand, which provides care outside of hospitals, often to older people, but sometimes to disabled people, in a different but equally important setting. The connection between the two things is absolutely intimate. Many people who go into hospital will be discharged to a social care home. And there has to be a close connection between the two things. But in the way that the law stands at the moment, there is a separate ombudsman for health and an ombudsman for social care. My colleagues, I know a lot of ombuds people in the United Kingdom and internationally, and we all agree that it doesn't make sense. Because of the numbers, you wouldn't want to integrate everybody but the key schemes which are the parliamentary scheme, the health scheme, the local government and social care schemes, and perhaps the housing scheme should, in our opinion, be joined up into one public service ombudsman scheme. That would save money, it would make it clearer to citizens where they have to go, and it would create a sense of perspective across sector areas so that we would have more authority in making decisions. And actually, for the last ten years, the government has not been opposed to this. It has seen that it might do this, but because of the nature of British politics, it hasn't happened. So, in Britain, we've been through two referendums; exit from the European Union; Covid; and endless financial crises. And what ministers have always said to me is: “Yes, Rob, you're right, but not yet”. It's going to happen, but it won't happen in the next couple of years.

You know, if you look at Europe, for example, most of my counterparts in Europe are joined up public pervice ombudsman schemes. And indeed, inside the United Kingdom, we have joined up, devolved schemes for Scotland, Wales and Northern Ireland where they do integrate all of that and they get the benefit of it. So I can't defend it. My friend, the European Ombudsman, Emily O'Reilly says that she goes to meet her colleagues who come in taxis, but when the British come, they come in buses, because there's so many of them.

IE: Despite what you have said, that they do intend to change this, we are seeing more and more ombuds, created. So how does one even advocate for that? Or how do these sectors decide that they want their ombuds?

RB: I think in some areas, there is justification for having a separate ombudsman scheme. So, as you know, I was the Higher Education Ombudsman for eight years. That is a discrete scheme. It deals with an identifiable set of bodies, 150 universities in England and Wales. It has experience and authority in dealing with the issues that students bring to them. And I would not argue for integrating the higher education ombuds into a joined up public service onward scheme. There are 60 million people in the UK. It's a big country in terms of population. I don't think you could reasonably have one joined up ombuds scheme. So that's the first thing.

The second thing is, in comparison to my colleagues in Spain, for example, and in other countries, we do make a rigid distinction between public service and private service provision. So there is, in the UK, something called a Financial Ombudsman Service which deals with thousands of complaints who are upset about their bank or their financial provider. That's entirely in the private sector. It's separately run, it's not publicly funded. It's funded by the banks themselves. I don't see any sense in bringing that together with the public service ombudsman, particularly because the national ombudsman has no oversight over those issues. I mean, in direct answer to your question, when I was the ombudsman, I had to appear before in Parliament every year after I'd written my annual report and give an account to the Parliamentary Committee of what was going on. And each year this subject came up. In 2016, the Parliamentary Committee wrote a scathing report saying it was ridiculous to have all these numbers of ombuds. There needed to be a reform, the ombudsmen needed to have more powers, and the government agreed to it at the time, but didn't do anything about it because of the crisis over the referendum and so on. And now the new Labour government who I spoke to before they came to power said: “Yes, Rob, we agree this is something that has to be done, but it's not on our list of top priorities”. So you know, I hope I live long enough to see it. But I do know that I'm arguing a just and sensible cause.

IE: In the US, for instance, ombuds persons are established at the universities and they're run by the universities. We see, for instance, at Pinterest, a technology company that has its own ombuds inside the firm. So what are the strengths and weaknesses of these different ombuds setups like private and public?

RB: Well, that's another good question.

IE: I'm, happy you like my questions.

RB: You know, it's a big family, the ombudsman family, but the mandates are very different.

IE: Right.

RB: And the fundamental distinction, there are other distinctions, is between those national onward schemes which report to Parliament, which mine did, and what are called organizational ombuds, which are created inside institutions. And with a degree of independence, they have the opportunity to respond to complaints from people inside the institution. That's very good, because it means that there'll always be somebody you can go to quickly if you have a concern. It's, also the case I know from research that I've done that the Americans and the Canadians are very good at mediating so that you don't have to investigate a complaint, and they try to support people without actually doing the physical investigation. I've certainly learned from that. But I also came across examples in universities in the Netherlands, for example, where the university didn't like what the ombudsman was doing and they basically got rid of the ombudsman because they felt the ombudsman was making trouble for them, was representing students unfairly or staff unfairly, and that they'd be better off without them.

That is more likely to happen with an organizational ombudsman than it would be a public ombudsman. Not to say it's never happened, because it has happened. And there's always a tension in the relationship between the ombudsman and Parliament and the government. It certainly has been in my time. There are various ways of combining the two things. So, for example, most universities in England don't have an ombuds officer but there's a national scheme, the Higher Education Ombuds, to whom they can go if they haven't had success from their university. I think it's a beautiful mixture of different mandates and governance ideas, and their weaknesses in all of them.

I think the weakness of the kind of scheme that I'm involved in is that, because of the law, it takes a long time for people to get to the ombudsman, and by that time, they're often fed up and they don't want to know. So, as you probably know, in parliamentary cases, people cannot come to the national ombudsman unless they've been to their member of parliament first. That is, a nonsense. That is a disgraceful limitation on the opportunity of people to get redress. And the Parliamentary Select Committee called it “iniquitous” in 2016 but it's still there. It needs to go away. When we tell people that they've come to us too quickly, that they have to go to their member of parliament first, 80% of them don't come back.

IE: So, basically, a system that has been established to make things easy becomes another burden, another layer to seek justice actually, working against the principles of having this instead of courts.

RB: Absolutely. And, you know, one of the disadvantages of being an elderly institution, I mean, we were set up in 1967, so we're one of the oldest in Europe, is that, we didn't have lessons to learn from other countries apart from Scandinavia. And there was a real nervousness and reluctance which was enshrined in the law, which actually hasn't disappeared. And that's bad. The MP filter, as it's called, was put in for a five year experimental period in 1967.

IE: Yeah, it's always like that, isn't it? I mean, once an institution or a filter or something is there, it's so dangerous. Even it's like provisional or intended as temporary. It takes a, life of its, own. And that you can't get rid of it.

RB: Absolutely.

IE: Let's come to your experience of the last seven years. Can you please tell us the most significant cases you handled when you were the parliamentary and health ombuds and why did you select these cases?

RB: Plenty to choose from. I mean, we would do around 8000 investigations each year.

IE: That's a huge number.

RB: It is. We got 30,000 complaints every year. So most complaints didn't go to the end of the investigative process.

IE: Right.

RB: We find for.. about a thousand cases a year, we find that the cases are upheld and justified in some way. And we've given redress of around half a million Pounds a year to the complainants. Now, the very big cases that I've had to deal with include the last one that I did, which is about women's state pensions. In that case, a huge case. Thousands of women came to us to say that their state pension, had been postponed by the government for six years without them being told personally that this was going to happen. That embarrassed and made financially vulnerable a whole tranche of women who had planned to retire but found they weren't able to because they didn't get their pension.

IE: What was the reason for this?

RB: Well, the government felt that it was economically viable to increase the working age, given that age of people's economic productivity was growing as the population aged. So the women took their case through all the courts in the United Kingdom. They lost every time. But then they came to us, or they came to us before, but we paused while that was going on and we said that it was not illegal what the government did, but it was very poor service, what we call maladministration in the UK, because you should not take away people's rights without telling them on a personal basis. And we recommended compensation for these people of between 2 and 3000 pounds each, which would come to something like 10 billion Pounds. It was a huge amount of money and the government was always hostile to this. It never wanted to pay, it never wanted to cooperate with us. And the election came just at the moment when we had produced our final report, and the new government is sitting on it as well. It hasn't come to a view about that, but in terms of equal rights and gender equality, that's very important….Another one you may know of the Windrush cases.

IE: Yeah

RB: So, for your listeners, people who came from the West Indies in the early 1960s came with full British citizen rights. And then 50 years later, the government began to question whether these people had those rights. And in what they called a “hostile environment”, they threatened them with deportation and expulsion because of populist concerns about immigration to the UK. Now, what that meant was that thousands of good British citizens who could no longer prove after 50 years, through their documentation that they had British citizenship, were threatened with deportation. They lost their work; their pensions; their Social Security; and they lived under fear because they were told they were likely to be deported. And for a number of people we investigated that.

We found that the government did not behave properly as far as this was concerned, that they had full citizenship rights, that there was deception and delay in the way in which their cases were investigated. And in all the cases that we investigated, the government found for the citizen. But unfortunately, we were the fourth port of call for people, so not a lot of people came to us. And, you know, I met quite a lot of these people and they said, “well, if we'd known about you, Rob, we would have come”. But they didn't. That's a, real issue.

Another case, very important cases around avoidable deaths of children in hospital.

IE: Yeah.

RB: Through Sepsis, for example, eating disorders. We did a huge investigation into the death of an 18 year old young woman who avoidably died because of poor treatment in hospital. I've had a big case which has now gone to a public inquiry about a young man who committed suicide several days after being admitted to a hospital in Essex. And he was deceived. His family were deceived by the hospital who changed his care plan after he died. And I found nineteen instances of maladministration and poor service in the way in which he was treated. So that's another big one. But there are lots of them, and it's very important to understand that even if it's one person with a small complaint, it's important to them. And usually they don't want money. What they want is an apology. And the sense that, it's not going to happen again. And that lessons have been learned from the case.

IE: We Can Find a Way is sponsored by Koc attorneys at law, the Istanbul and Antalya based boutique law firm, founding partners of Koc attorneys at law, are staunch believers of using dialogue and finding common ground to resolve conflicts. They're very happy to be supporting We can find a way in the hope that it will help advance the much needed discussion on de-escalation and reduction of polarization in conflict situations within the legal practice as well as in the public discourse.

You're saying an institution that has been established for accountability by the government is being, treated by the very same government quite in a hostile way. They established it because actually they were trying to give the people something restorative, an apology, an admission of responsibility and assurance that it wouldn't happen, etcetera. But it's really not serving its purpose because it's being treated like a court setting. How do you explain that?

RB: That's the third time I'm going to say it, but that's a very good question again.

IE: Thank you.

RB: As you will know, we are subject to judicial review, so we do have to apply by principles of administrative justice, of fair dealing, of transparency, of confidentiality in dealing with cases. But my experience is that the problem with the ombudsman is that, it's a nuisance to the government because it's continually pointing out where the government or the health service is failing. And they don't like that. And it's not about particular flavors of government. I think that's about government as a whole. And it's these inconvenient truths, as someone once called them, that are so vital to the integrity of public life, which governments in my time were not very good at responding to and dealing with. So it needs more enlightened politicians to be able to deal with this.

I'll give you an example with the Times newspaper. The headline of the interview was, “complainants are being fobbed off”, says the ombudsman. I don't know whether you know what fobbed off means, but

IE: No.

RB: It means disregarded, treated with contempt. And the minister rings me up and he says: “Rob, you've been taken to the cleaners by the Times. They've produced a sensationalist report about your interview. And I wanted to let you know that they haven't been telling the truth about what you're saying”. So I said: “Well, thank you, Minister, but actually you're wrong. They've accurately reported everything that I said, and I stand by all the stories”. So he said, “No, no, this can't be true. You're saying people are treated with discourtesy and being fobbed off. Send me the cases and I'll respond to you, showing you that you've got it wrong”. So I sent him the cases, the seven cases that I used in the interview with the Times, and I never heard another word from the minister after that, which to me is illustrative of the problem that there's a reluctance to take responsibility when things go wrong.

IE: And they do go wrong all the time. And it's not only in UK. So…

RB: There are at least 11,000 avoidable deaths in British hospitals each year, probably more. They're avoidable. That means that they could have been prevented if there'd been different treatment. And that is very expensive. So the amount of money, I mean, apart from being a tragedy, it is a great tragedy for every family. But for the public purse, it costs billions of Pounds in financial compensation to pay for those avoidable deaths. So it makes no sense for the government to be resistant to uncovering these issues. What we have in the UK, I don't know whether you're familiar with the term, but we have what are called whistleblowers. You're familiar with that?

IE: I'm familiar with that. I used to practice law in New York myself as an attorney, so.

RB: In the health service, we have hundreds of whistleblowers who have blown the whistle. They tried to get reform inside their trust, their hospital, and they've been received by the management of the hospital with threats, intimidation and harassment. And they've been reported to their professional body, the General Medical Council, on the grounds that they're misbehaving. That is absolutely outrageous. It's vindictive, it's inappropriate, and it shows the weak side of our public administration where that happens. And hopefully there will be reform to enable whistleblowers to get more protection from the new government than there was from the old one.

IE: You're speaking about the government, but I can also sense a profession here, the medical profession, being quite defensive. So how can you explain that?

RB: Yeah, you're absolutely right. The government has been slow to deal with the issue of the culture in the National Health Service. The culture in the National Health Service is largely dictated by the leaders of the hospital trusts, the chief executives, the boards and the senior management, who have preferred to defend the reputation of their institution than to make progress on patient safety issues. So you have dozens and dozens of people who have been traduced by these senior managers for speaking the truth and trying to get change and being told that go away or you'll be in serious trouble. The culture of the health service is very, very difficult. There's a hierarchy of professions. Some junior doctors are fearful of how senior doctors will treat them. The relationship between nurses and doctors is not always good. The relation between nurses and midwives is not good. And too often the boards, the management of these trusts turn a blind eye when things go wrong and they don't want to know about it and they don't intervene. So as far as I'm concerned, it's about leadership and it's about management development, which means effective training. And I know as an ombudsman, my institution required radical reinvention when I took over, in terms of the professional induction training and staff development. And without that, we wouldn't have done as much as we were able to do. And I don't think that happens enough in the health service. The government admits now that that has to happen, but it hasn't done anything about it so far.

IE: The idea of Radio ombudsman came from you. Why was this effort needed?

RB: Yeah, well, there are two answers to that. I mean, the first is, the honest answer is, I have always felt that the term ombudsman is not understood enough by the wider public. And I've looked in my time as an ombudsman to find ways of reaching out to the public to demystify what it is we do in a way which encourages people to come to us and encourages public trust. And I have some experience of doing podcasts, mostly to do with football. And I know…

IE: I can see who is that behind you?

RB: Oh no..Colin Bell

IE: Okay. I don't know.

RB: Manchester City, not Manchester United.

IE: Aha. Okay.

RB: But I forgive you for that.

IE: Thank you.

RB: I could see that if we were able to bring former complainants into our building and I was to talk to them about what had happened in their case, they would get an opportunity to tell us what it was really like and we could learn from them in order to make sure that we did it better. So it was a way of self criticism as well as a way of demystifying, what we were doing. And I brought in other ombudsman from around the world to be able to learn from them. I did one amazing radio ombudsman with a woman in transition in my office who talked about the struggle that she had been through while she was working in the office. So it's been a really wonderful experience to be able to get feedback from people and to get people to understand that, you know, we're not ogres, we're trying to do our best. But you have to understand what we're doing. It worked very well, I think. I was invited to Malta and I spoke to the Maltese Parliament. An MP came up to me afterwards and he said: “Mister Behrens, he said, you go on about Radio ombudsman. I've never heard of that, but I have heard you on your football podcast”, so you've got some way to go.

IE: I was reading the transcripts of your last session with the ombuds actually, also discussing Manchester City and Manchester United. I know you're interested in it. Anything you would like to add?

RB: What you're doing is wonderful.

IE: Thank you very much.

RB: And very important. And you know, just to give you an example, we had two Ukrainian refugees living with us for eight months, and they came from Kyiv. And after three months, they took me to one side and they said: “Rob, we know you're an omnibus man, but we can't see the bus anywhere. Where's the bus?”

IE: That's very sweet.

RB: So, that's a sign of how little well known the concept is

IE: Yeah.

RB: In the UK, only 17%, one seven % of citizens recognize the Parliamentary Pmbudsman as an institution of the state, and that's far too low.

IE: Well, thank you very much for all of this.

Now, let us start with Sir Rob Behrens of CBE, who is an ombudsman and public servant. He began his career as an academic before joining the UK Cabinet Office as director of the Southern Africa Development Unit. He made a significant contribution to the bilateral agreement to create a post apartheid public service in South Africa, for which he was thanked personally by President Mandela. After further international development work, Rob was appointed secretary to the Committee on Standards in Public Life, the body advising the prime minister on ethical standards. In 2006, he became complaints commissioner to the Bar in England and Wales, and was then appointed Higher Education Ombudsman in England and Wales, a position he held for eight years. At the end of his second term, Rob was appointed Parliamentary and health Service Ombudsman. He was elected to the European and World boards of the International Ombudsman Institute and played a crucial role in creating ombudsman peer review, the IOI, European Learning Academy, and Ombudsman support to the parliamentary Human Rights Commissioner in Ukraine. Educated at Nottingham and Exeter universities, he is an honorary life member of the European Network of Ombuds in higher education. He was made a CBE, which stands for Commander of the Order of the British Empire, in the Queen's New Years Honors list in 2015 for services to higher education, and received a knighthood for public service in the King's Birthday Honors 2024. In the same year, he was awarded the certificate of Merit for distinguished service to the Ukrainian people by Varkovna Rada, the national parliament of Ukraine.

So it was really an honor to host such a distinguished guest for me. That's it for now. If you like this episode, please follow this podcast, its website that usually has a transcription of the episode if there are parts that you cannot understand well. Like it, share it. And also please like the excerpts I share in my YouTube channel or in the Instagram account of we can find a way that I do with headliner.

I'd like to close by thanking my sponsor Koc attorneys at law, my marketing manager Julia Nelson, and musician Imre Hadi, and artist Zeren Goktan who allowed me to use their music and photograph in the podcast. Thank you and hope to meet you you in the next episode.