Section 52 - Investigation procedure
201.Section 52(1) sets out the requirements for investigations under section 43 (i.e. investigations following a complaint).
202.Sections 52(2) to 51(7) set out the requirements for investigations under section 44 (i.e. investigations carried out on the Ombudsman’s own initiative), which include a requirement for the Ombudsman to prepare an ‘investigation proposal’ and to send the investigation proposal to the provider being investigated and any person identified in the investigation proposal in a negative way. The Ombudsman must also give the provider and other persons opportunity to comment on the investigation.
203.But the Ombudsman does not have to prepare an investigation proposal in the circumstances set out in section 52(3) and (4). This means that if the Ombudsman has begun investigating a matter (either in response to a complaint under section 43 or using the own initiative power under section 44), referred to as “the original investigation” and the Ombudsman has subsequently begun an investigation into a matter under section 44 that has a substantial connection with the original investigation, referred to as the related investigation, then the Ombudsman does not have to prepare an investigation proposal in relation to the related investigation.
204.However, even if the Ombudsman does not have to prepare an investigation proposal, section 52(6) still requires the Ombudsman to bring the investigation to the attention of those being investigated and give them an opportunity to comment.
205.Under section 52(7), an investigation proposal must set out the reasons for the investigation and how the section 45 criteria have been met (i.e. the criteria for own initiative investigations).
206.Section 52(8) requires all investigations to be conducted in private.
207.Section 52(9) provides that, subject to the other requirements set out in this section, it is for the Ombudsman to decide the procedure for conducting an investigation. The Ombudsman could, for example, establish different procedures for different types of complaints and could, in any particular case, depart from any such established procedures if the Ombudsman considered it appropriate.
208.Section 52(10)(a) provides that the Ombudsman may make such inquiries as the Ombudsman thinks appropriate. Section 52(10)(b) provides that it is for the Ombudsman to decide whether a person may be legally represented or be represented in some other way (e.g. by an independent advocate).
209.Section 52(12) empowers the Ombudsman to make payments towards the expenses of persons assisting the Ombudsman in an investigation, provided that they are properly incurred, and to pay certain allowances. It is for the Ombudsman to determine whether it is appropriate to make such payments or to impose any conditions on such payments.
210.Section 52(14) requires the Ombudsman to publish the procedures for investigations under sections 43 and 44.