(P.250) 3.2. Internal Procedures Providing Redress for Maladministration

Having assessed the important role of the ombudsmen in facilitating ex gratia payments for administrative wrongs, we now turn to look at the attitude of the administration to providing redress.

The Citizen's Charter in 1991 promised ‘better redress for the citizen when things go wrong’.¹⁰⁹ This was followed by a number of government publications and discussion papers focussing upon an improvement of complaints-handling and redress in the public sector.¹¹⁰ Public bodies have indeed improved their attitude to resolving the grievances of public service users.¹¹¹ A motor for change has been the Select Committee on Public Administration. In the early 1990s, the Select Committee set up a ‘thematic inquiry’ to look into the practice of financial redress.¹¹² The Select Committee's inquiry revealed a bewildering number of administrative schemes operating to provide compensation.¹¹³ It concluded that the government's guidance to departments and agencies on the granting of redress in cases of maladministration was in fact outdated and directed more to the protection of the public purse than to the rights of the complainant.¹¹⁴ The Select Committee felt that there was a need for clear principles guiding the consideration of redress, with a greater commitment to fairness, consistency, and transparency.

Government departments have indeed reacted to the recommendations made by the Select Committee.¹¹⁵ Many departments now publicize the fact that redress is available for injustice caused by maladministration. Schemes have been set up by the Inland Revenue, the Department of Social Security, and the Customs and Excise.¹¹⁶ In another move towards (p.251) greater transparency, departments commonly publish the total amounts of compensation granted for maladministration in their annual reports.¹¹⁷ It is now generally accepted that where maladministration has caused injustice, then those affected should be put back in the position they would have been in had the maladministration not taken place.¹¹⁸ Compensation for worry and distress is no longer excluded,¹¹⁹ although it is still emphasized in official publications that consolatory payments will be made only ‘in exceptional circumstances’.¹²⁰ Government departments are advised that in cases of maladministration, then normally all those affected should be identified and a suitable remedy should be offered.¹²¹

There are still a bewildering number of compensation schemes. We will look at some of these within a comparative law context.

4. Compensation Schemes in England and France

In England and France, a number of schemes have been set up by government or Parliament to provide redress to those affected by maladministration.¹²² Some of these compensation schemes have remained on an informal footing, whereas others have been set up by legislative intervention. These schemes cover disparate areas of administrative activity. Nonetheless, there is a good degree of similarity in the subject matter of the compensation schemes in England and France.

A substantial ex gratia payment was made by the British government in 1987 to provide financial help for haemophiliacs who were infected with HIV as a result of having received contaminated blood products in the UK.¹²³ Similarly, in France a fund was set up to compensate those who (p.252) were infected with HIV by blood products.¹²⁴ The French scheme was specifically based on the principle of social solidarity.¹²⁵

Other parallel compensation schemes are apparent. There are twin funds for those who have been disabled as a result of vaccination.¹²⁶ There are also statutory schemes providing for the payment of compensation to those who have suffered a miscarriage of justice.¹²⁷ The French scheme has however been criticized for being based upon arbitrary criteria and for making rather parsimonious awards.¹²⁸

The plight of victims of crimes has also inspired the creation of various compensation schemes in the two countries.¹²⁹ It may be questioned whether it is correct to describe these as examples of governmental liability or not. Doubts have been expressed in French law,¹³⁰ and indeed the French fund is not even financed by the state, but rather by a fee levied on certain insurance contracts.¹³¹ Difficulties have also been encountered in English law in identifying the underlying principle for granting compensation to victims of crime.¹³²

There has also been a tendency to devise schemes to cover broader categories of administrative activities. In both countries, informal schemes are run by the tax authorities to provide compensation for maladministration.¹³³ Apart from the tax scheme, there are few wide-scale administrative schemes operated in France.¹³⁴ On the other hand, in (p.253) England there are a plethora of schemes. Restraints on space preclude a detailed analysis of these but, by way of example, a short word will be said about two schemes run by the Department of Social Security (DSS)¹³⁵ and the Prison Service.

The DSS has produced a detailed guide covering redress for maladministration.¹³⁶ Guidance is given on the meaning of maladministration, the circumstances in which financial redress will be considered, and the amount of redress which is appropriate. In effect, this document constitutes a codification of the practice of financial redress. The sum total of such payments is high. The Benefits Agency recorded that in 1998–9 almost £3.5 million was made in ‘compensation payments to customers’, increasing from just over £2 million in 1997–8.¹³⁷

The Prison Service makes ex gratia payments in respect of claims from inmates concerning personal injuries, damage to personal property, and unlawful detention beyond release date, as well as claims from staff and the public concerning injuries and loss.¹³⁸ The total cost of making these ex gratia payments amounted to over £2 million in 1996–7.¹³⁹ Of particular interest are the ex gratia payments made to the public when damage or loss is caused by absconding prisoners. This provides an informal alternative to legal action along the lines of the claim in the Dorset Yacht case,¹⁴⁰ although there is no need to prove negligence in order to obtain compensation under the scheme.¹⁴¹ The conditions laid down for the making of payments under the scheme reflect notions used in the tort of negligence,¹⁴² but still give the authorities a good degree of discretion in determining whether payments should be made.¹⁴³

In the medical sphere, there has been a long debate in both countries about the most cost effective and equitable way of providing compensation.¹⁴⁴ The French legislator has finally acted, and we will now turn to look at this question.