Asylum seekers and refugees are also entitled to complain to the Northern Ireland Public Services Ombudsman with regard to maladministration on the part of devolved public services under the Northern Ireland Public Services Ombudsman Act 2016 on the same basis as any other “member of the public” (Section 5(5) defines a member of the public as “any individual or any incorporated or unincorporated body”, except listed authorities and staff of listed authorities.) In summary, while there are a number of areas in which the rights and entitlements of asylum seekers are different to the rest of the population, 13 in terms of the devolved services considered in this report, asylum seekers and refugees have broadly the same entitlements to housing, health, and education services as others. The issue that is explored in the later sections of this report relates to the difficulties asylum seekers and refugees face in accessing these entitlements in practice. The role and powers of the Northern Ireland Public Services Ombudsman The Northern Ireland Public Services Ombudsman Act 2016 (the 2016 Act) sets out the statutory framework for NIPSO’s work. In addition to being able to receive and investigate complaints, NIPSO has a power under Section 8 of the 2016 Act to carry out an “own initiative” investigation where “no complaint has been made”. In order for NIPSO to use this power it must have a reasonable suspicion that there has been “systemic maladministration” or that there is “systemic injustice” resulting from the exercise of professional judgment. Section 9 of the 2016 Act requires NIPSO to publish criteria with regard to its use of own initiative powers. The following criteria have been devised by NIPSO: 1. The issue of concern has been identified by the Ombudsman to be one of public interest. 2. The issue of concern affects a number of individuals or a particular group of people. 3. The investigation has the potential to improve public services. 4. The Ombudsman considers the investigation of the chosen issue is the best and most proportionate use of investigative resources. 14
Section 29 of the 2016 Act sets out the procedural requirements relating to own initiative investigations. Prior to commencing an investigation, a proposal must be prepared and submitted to the public body that is proposed to be investigated. The proposal must set out the reasons for the proposed investigation and how the criteria noted above have been met. NIPSO has made use of these powers on a number of occasions following the passing of the 2016 Act. The following matters have been subject to an own initiative investigation: • Restrictive practices in schools (2021). • Personal Independence Payments (2021 and 2023). 15 • Communication with patients on healthcare waiting lists (2023). • The tree protection planning system (2023). In addition, NIPSO has recently issued a proposal to investigate social housing conditions in Northern Ireland. NIPSO was the first ombudsperson in the UK to be provided with own initiative powers of investigation, even though these powers are very common internationally. Own initiative powers of investigation provide ombudspersons with significantly more scope for intervening systemically to identify and redress injustices in public service provision. The value of own initiative investigations has been summarised as follows: • Addressing issues which are not complained about, as a result of a generally low propensity to complain. • Addressing issues which affect particularly vulnerable groups, which are especially unlikely to come to light through complaints. • Addressing matters of general public interest, which concern the fairness of administration, and are generally not the principal focus of other oversight bodies. • Addressing and having a special responsibility for the operation of redress systems and taking on a broader “system fixing” role within the administrative justice system. 16
13 Such as the prohibition, with exceptions, on working, the lack of recourse to certain social security benefits, and the fact that support for asylum seekers is a Home Office matter while their claims are being determined. 14 https://www.nipso.org.uk/sites/default/files/2023-09/NIPSO-Own-Initiative-info-sheet.pdf 15 Recent analysis of NIPSO’s own initiative investigation into Personal Independence Payments has shown the value and effectiveness of this power in terms of iden- tifying and remedying significant failures in benefits administration. See: Thomas, R., 2023. The Northern Ireland Public Services Ombudsman’s Report into Personal Independence Payment and Collective Administrative Justice (Pt 1). Journal of Social Security Law, 30(3), pp.143-161. 16 Gill, C. 2020. The Ombud and Own Initiative Investigation Powers. In A Manifesto for Ombudsman Reform, R Kirkham and C Gill (eds), Palgrave McMillan.
Final report of the of Ombudspersons and the Protection of Refugees and Asylum Seekers (OPRAS) project | 11
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