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PART 3 E+WINVESTIGATIONS

Investigation procedure and evidenceE+W

18Investigation procedureE+W

(1)If the Ombudsman conducts an investigation under section 3, the Ombudsman must—

(a)give the listed authority to which the investigation relates an opportunity to comment on any allegations contained in the complaint;

(b)give any other person who is alleged in the complaint to have taken or authorised the action complained of an opportunity to comment on any allegations relating to that person.

(2)If the Ombudsman conducts an investigation under section 4, the Ombudsman must—

(a)prepare an investigation proposal, and

(b)submit the investigation proposal to—

(i)the listed authority being investigated, and

(ii)any person, other than the listed authority, who is identified in the investigation proposal in a negative way.

(3)But if—

(a)the Ombudsman has begun to investigate a matter under section 3 or 4 (in either case, “the original investigation”), and

(b)the Ombudsman has begun another investigation into a matter (“the related investigation”) under section 4 that relates to the original investigation,

subsection (2) does not apply to the related investigation.

(4)An investigation relates to an original investigation if the matter investigated in the related investigation has a substantial connection with the matter investigated in the original investigation.

(5)Where the Ombudsman prepares an investigation proposal in relation to a matter, the Ombudsman must—

(a)give the listed authority being investigated an opportunity to comment on the investigation proposal;

(b)give any person, other than the listed authority, who is identified in the investigation proposal in a negative way, an opportunity to comment on the investigation proposal (as far as the investigation proposal relates to that person).

(6)Where the Ombudsman has begun a related investigation into a matter and no investigation proposal is prepared by virtue of subsection (3), the Ombudsman must—

(a)give the listed authority an opportunity to comment on the related investigation;

(b)give any person, other than the listed authority, who is identified by the Ombudsman in relation to the related investigation in a negative way, an opportunity to comment on the related investigation (as far as the related investigation relates to that person).

(7)An investigation proposal must set out—

(a)he reasons for the investigation, and

(b)how the criteria published under section 5 have been met.

(8)An investigation must be conducted in private.

(9)Subject to the other provisions of this section, the procedure for conducting an investigation under section 3 or 4 is to be such as the Ombudsman thinks appropriate in the circumstances of the case.

(10)In particular, the Ombudsman may—

(a)make such inquiries as the Ombudsman thinks appropriate;

(b)determine whether any person may be represented in the investigation by an authorised person or otherwise.

(11)In subsection (10) “authorised person” means a person who, for the purposes of the Legal Services Act 2007 (c.29), is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act).

(12)The Ombudsman may pay to any person who attends or supplies information for the purposes of the investigation—

(a)such sums as the Ombudsman may determine in respect of expenses properly incurred by the person, and

(b)such allowances as the Ombudsman may determine by way of compensation for the loss of the person's time,

subject to such conditions as the Ombudsman may determine.

(13)The Ombudsman must publish the procedure that the Ombudsman will follow when conducting an investigation under section 3 or 4.

(14)The conduct of an investigation in respect of a listed authority does not affect—

(a)the validity of any action taken by the listed authority, or

(b)any power or duty of the listed authority to take further action with respect to any matter under investigation.

Commencement Information

I1S. 18 in force at 23.7.2019 by S.I. 2019/1096, reg. 2

19Information, documents, evidence and facilitiesE+W

(1)This section applies in relation to investigations conducted under this Part.

(2)For the purposes of an investigation the Ombudsman may require a person the Ombudsman thinks is able to supply information or produce a document relevant to the investigation to do so.

(3)For the purposes of an investigation the Ombudsman has the same powers as the High Court in respect of—

(a)the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and

(b)the production of documents.

(4)For the purposes of an investigation the Ombudsman may require a person the Ombudsman thinks is able to supply information or produce a document relevant to the investigation to provide any facility the Ombudsman may reasonably require.

(5)Subject to subsection (7), no person is to be compelled for the purposes of an investigation to give any evidence or produce any document which the person could not be compelled to give or produce in civil proceedings before the High Court.

(6)No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty's service, whether imposed by any enactment or rule of law, is to apply to the disclosure of information for the purposes of an investigation.

(7)The Crown is not entitled in relation to an investigation to any privilege in respect of the production of documents or the giving of evidence that would otherwise be allowed by law in legal proceedings.

Commencement Information

I2S. 19 in force at 23.7.2019 by S.I. 2019/1096, reg. 2

20Obstruction and contemptE+W

(1)If the Ombudsman is satisfied that the condition in subsection (2) is met in relation to a person, the Ombudsman may issue a certificate to that effect to the High Court.

(2)The condition is that the person—

(a)without lawful excuse, has obstructed the discharge of any of the Ombudsman's functions under this Part, or

(b)has done an act in relation to an investigation which, if the investigation were proceedings in the High Court, would constitute contempt of court.

(3)But the condition in subsection (2) is not met in relation to a person merely because the person has taken action such as is mentioned in section 18(14).

(4)If the Ombudsman issues a certificate under subsection (1), the High Court may inquire into the matter.

(5)If the High Court is satisfied that the condition in subsection (2) is met in relation to the person, it may deal with the person in any manner in which it could have if the person had committed contempt in relation to the High Court.

Commencement Information

I3S. 20 in force at 23.7.2019 by S.I. 2019/1096, reg. 2

21Obstruction and contempt: costs recoveryE+W

(1)This section applies where—

(a)the Ombudsman investigates a health-related service as part of an investigation in respect of a relevant listed authority under section 16(2), and

(b)the Ombudsman is satisfied that the condition in subsection (2) is met.

(2)The condition is that the provider of the health-related service (“the provider”)—

(a)without lawful excuse, has obstructed the discharge of any of the Ombudsman's functions under this Part, or

(b)has done an act in relation to the investigation which, if the investigation were proceedings in the High Court, would constitute contempt of court.

(3)The condition in subsection (2) is not met in relation to a provider merely because the provider has taken action of the kind mentioned in section 18(14)(b).

(4)The Ombudsman may serve a notice (a “costs recovery notice”) on the provider requiring the provider to pay the Ombudsman costs incurred by the Ombudsman as a result of the obstruction or act mentioned in subsection (2).

(5)The costs referred to in subsection (4) may include (but are not limited to) the costs of obtaining expert advice (including legal advice).

(6)A costs recovery notice must—

(a)set out the basis on which the notice is issued, including details of the obstruction or act which, in the opinion of the Ombudsman, meets the condition in subsection⁠ (2),

(b)specify the amount that must be paid to the Ombudsman, together with a detailed breakdown of the amount,

(c)specify—

(i)the date by which payment must be made, and

(ii)how payment may be made, and

(d)explain the right of appeal in subsection (9).

(7)The payment date specified under subsection (6)(c) must be at least 28 days later than the date on which the costs recovery notice is served on the provider.

(8)The provider must pay the Ombudsman the amount specified in the costs recovery notice by the date specified in that notice (but this is subject to the remaining provisions of this section).

(9)The provider may appeal to the magistrates' court against a costs recovery notice within 21 days beginning with the date on which the notice is served on the provider; and where the provider does so, subsection (8) does not apply (but see subsections (15) and (16)).

(10)An appeal is to be by way of a complaint for an order that the notice be quashed or varied, and in accordance with the Magistrates' Court Act 1980 (c.43).

(11)For the purpose of the time limit for making an appeal, the making of a complaint is to be treated as the making of an appeal.

(12)The grounds for appeal are that the Ombudsman‘s decision to issue the costs recovery notice was—

(a)based on an error of fact,

(b)wrong in law, or

(c)unreasonable for any reason.

(13)On appeal, the magistrates' court may—

(a)confirm, quash or vary the costs recovery notice, and

(b)make such order as to costs as it thinks fit.

(14)Where, on appeal, the magistrates' court quashes or varies the costs recovery notice, it may order the Ombudsman to compensate the provider for loss suffered as a result of the service of the notice.

(15)Where, on appeal, the magistrates' court confirms the costs recovery notice (with or without variation), the provider must pay the amount payable by virtue of the notice within 28 days beginning with the date on which the appeal is finally determined.

(16)Where an appeal made under this section is withdrawn, the provider must pay the amount specified in the costs recovery notice within 28 days beginning with the date on which the appeal is withdrawn.

(17)An amount payable under this section is recoverable summarily as a civil debt.

(18)In this section, “health-related service” has the same meaning as in section 16.

Commencement Information

I4S. 21 in force at 23.7.2019 by S.I. 2019/1096, reg. 2

22Serving a costs recovery noticeE+W

(1)This section applies to the service of a costs recovery notice under section 21.

(2)The costs recovery notice may be served on a person—

(a)by being delivered personally to the person,

(b)by leaving it at the person's proper address,

(c)by being sent by post to the person's proper address, or

(d)where subsection (3) applies, by sending it electronically to an address provided for that purpose.

(3)This subsection applies where the person to whom the costs recovery notice is to be issued has agreed in writing that it may be sent electronically.

(4)For the purposes of subsection (2)(a), a costs recovery notice may be delivered personally to a body corporate by giving it to the secretary or clerk of that body.

(5)Where the Ombudsman serves a costs recovery notice in the manner mentioned in subsection (2)(b), the costs recovery notice is to be treated as having been received at the time it was left at the person's proper address unless the contrary is shown.

(6)For the purposes of subsections (2)(b) and (c), the proper address of a person is—

(a)in the case of a body corporate, the address of the registered or principal office of the body;

(b)in the case of a person acting in their capacity as a partner in a partnership, the address of the principal office of the partnership;

(c)in any other case, the last known address of the person.

(7)Where the Ombudsman serves a costs recovery notice in the manner mentioned in subsection (2)(c) by sending it to an address in the United Kingdom, the costs recovery notice is to be treated as having been received 48 hours after it is sent unless the contrary is shown.

(8)Where the Ombudsman serves a costs recovery notice in the manner mentioned in subsection (2)(d), the costs recovery notice is to be treated as having been received 48 hours after it is sent unless the contrary is shown.

Commencement Information

I5S. 22 in force at 23.7.2019 by S.I. 2019/1096, reg. 2